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It is not necessary, in my view, for the Convention on Human Rights to
give any precise definition of an offence for the specific purpose of
excluding the right to free expression of political opinions. For the
moment a political movement is directed at destroying the safeguarded
human rights, it cannot be protected by them. This does not in any way
apply to my behaviour. Quite the contrary.

The quotations from RITTLER, which I did not know of, hit the nail on
the head. They are not an exaggeration. When "Winterhilfswerk" (winter
relief work) is cited as an example and it is explained that this, of
course, is not a National Socialist activity, I consider that statement
a downright mockery, when I think that I was sentenced to 6 months'
severe imprisonment at my first trial for the republication of an
article previously published in Germany unopposed, containing the two
slogans: "Gemeinnutz geht vor Eigennutz" (service not self) and
"Gesunder Bauer auf gesundem Acker" (literally, healthy farmer on
healthy land). Be that as it may, at least I knew then why I was
convicted (namely, on account of the article), but to this day I still
do not know why I was convicted at the last trial, since the exercise
of my functions - which alone was mentioned in the questions put to the
jury and in the judgment - is not punishable. Practically every
subsequent sentence in the Austrian Government's statement is totally
at variance with the facts. Apart from the fact that I am firmly
convinced that anyone founding a "Winterhilfswerk" under that name
would immediately be arrested under Section 3 g VG, I find the
following sentence particularly noteworthy: "Moreover, ... that the
normal penalty is imposed only for 'dangerous' activities, (so that)
the provision does not cover petty offenses".

The conception 'dangerous' surely requires no explanation; I
understand the word to apply - roughly - to any action which endangers
a person, a State or a society. It is a puzzle to me how I can be held
to have acted dangerously simply by writing articles - containing, of
course, no incitement to bloodshed, but merely asking for freedom to
hold opinions - or by training youth groups, whose members patterned
their lives on the boy-scout movement, but with a national bias - there
was never any question of training or using them for acts of terror
etc.
But to continue: When someone, and particularly a youth, paints a
swastika on a wall, surely that is a petty offence. Nevertheless (there
were such cases), these scribblers were brought to trial under Section
3 g VG - within the meaning of Section 3 g possibly even rightly so,
for, if 3 g is thus to be interpreted, they conducted their
National-Socialist activities in ways "other than that mentioned in
Sections 3 a to 3 f VG." - But how can even the semblance of a reproach
be levelled against me?

As to the phrase: "insofar as they are not characterised by some
typical essential feature at least one such 'typical essential
feature', ought to have come to light and been identified during my
trial. Perhaps it will be argued that they were too numerous to
identify, but I am certain it will not be, because this simply is not
true, but supposing it were ...: Does not every Court in the world take
the trouble to convict a thief, for instance, for all the offenses that
come to light and give an exact account of them down to the last half
penny?

I harbour no doubts about the danger of National Socialism; all the
more reason, therefore, for not supporting it. It is perfectly
understandable that the State should take steps to combat it in the
event of 'dangerous activities' (see the examples given in Sections 3
a to 3 f VG). But I have never engaged in any - let alone dangerous -
activities, nor was it ever alleged that I had, although that was the
ground for my conviction.

The assertion that the State must limit human rights, otherwise it
could not forbid political murder, is, in my opinion, grotesque. No
such finding is necessary, particularly since there is no act
whatsoever, whose punishment is provided for in the Civil Code and
which can be camouflaged as "political". - But that is the whole point:
I find no mention of even one reason, one activity or one act that I
have committed that is contrary to the spirit or the letter of the
Convention on Human Rights.

Austria states that it has an obligation under the State Treaty to
resist National Socialism. This end can also be served by the clearly
and precisely worded Sections 3 a and 3 f VG. But it also contracted
the obligation to safeguard democracy in Austria and to a democracy
belongs the right to express one's opinions and convictions freely (a
right also granted lawfully to Communists who are hardly champions of
these principles). Now Section 3 g VG which - to quote RITTLER, who up
till now was unfortunately unknown to me - "offers none of the
guarantees of a constitutional State", is in direct contradiction to
this obligation.

I was detained from ... to ... 1960, till I received my indictment.
Naturally I was so indignant at the content that I immediately filed
a protest. So that my situation can be understood, I must explain that
around this time my wife lost her home and gave birth to her second
child. I was anxious, therefore, that my trial should come up at least
before Christmas. My counsel consequently advised me to withdraw my
protest in order not to hold up the proceedings. The trial in fact took
place on ... and I was released on ..., that is to say ... days before
Christmas. I have no evidence, but I can quote at least 30 similar
cases to show that persons detained under Section 3 g pending
investigation are kept in custody a very long time, because in most
cases they are later acquitted. I already mentioned in my first
Application the case of a man who spent, in all, 36 months in prison
pending investigation and was acquitted after three trials but did not
receive a penny by way of compensation. Knowing this - after all, I was
in prison for 11 months and was heard only 8 times - I was anxious to
avoid delaying proceedings.

With regard to the impeding of my defence I have this to say: It is
claimed that I was free to confer with my counsel at any time. That is
true. Only, I cold not afford a counsel for I had no money. I was glad,
therefore, when two gentlemen put themselves at my disposal free of
charge (one of them, incidentally, was a Socialist municipal councillor
who interceded on my behalf out of indignation at my arrest), and so
I could not make too great demands on them.

Furthermore, throughout the entire period of my detention, I was in a
cell with criminals (my requests to be moved to an individual cell was
rejected) and I was refused stationery and writing materials, not to
mention books or documents. That, in my view was a very considerable
impediment to my defence.

I should like to say, in conclusion, that what this Application is
designed to achieve is not my rehabilitation, for the months I spent
in prison and the suffering caused to my family cannot be undone and
I have never considered myself a criminal. What I seek is the right to
freedom of expression. For - it may be annoying - I have a mind of my
own and would like to be able to say what I think. In the circumstances
obtaining in Austria as a result of Section 3 g VG, this is, however,
scarcely possible without running the risk of imprisonment. But, in
addition, I should like to be accused of a specific crime, so that I
can furnish evidence to disprove it and obtain a retrial of my case.
I beg you to help me in this".

THE LAW

Whereas, in regard to the Applicant's complaint that the penal
provision applied in his case was so vague as to constitute a violation
of the Convention, the Commission finds that the terms of the charge
drafted against him under Article 3 g of the Interdiction Act created
a justifiable offence consistent with the Convention; whereas, although
the Applicant himself has not specified the exact provisions of the
Convention on which he relies in this respect, the Commission has had
regard to Article 6, paragraph (1) (Art. 6-1) being generally "fair
hearing" to a person charged with a criminal offence, and to Article
6, paragraph (3), subparagraph (a) (Art. 6-3-a) guarantees to an
accused person the right to be informed promptly and in detail of the
nature and cause of the accusation against him; whereas the Commission
has equally had regard to the provision of Article 7 (Art. 7) as
however, there is no appearance of a violation of any of the rights and
freedoms set forth in the Convention and in particular in these
Articles; whereas it follows that this part of the Application is
manifestly ill-founded and must be rejected in accordance with Article
27, paragraph (2),(Art. 27-2) of the Convention;

Whereas the Applicant also complains that the findings of the Regional
Court, while referring generally to his participation in several youth
organisations, did not specify any particular acts as being National
Socialist activities; whereas this complaint was also raised by the
Applicant before the Supreme Court; and whereas the Supreme Court held
that the findings of the Jury of the Regional Court were sufficiently
precise and consistent with Article 345, paragraph (1), Nos. 6, 8 and
11 a, of the Code of Criminal Procedure (Strafprozessordnung) as they
indicated the nature of the acts in question, the circumstances in
which they were committed and the period during which the acts were
perpetrated;

Whereas it further appears from the decision of the Supreme Court that
the Presiding Judge of the Regional Court, when directing the Jury,
explained that a necessary element under Article 3 g of the
Interdiction Act was an intention to undermine democratic government
in Austria in order to revive National Socialism, as practised in
Austria from 1938 to 1945; whereas, consequently, the Commission is
satisfied that the Jury of the Regional Court, having been so directed
and in convicting the Applicant under Article 3 g of the Interdiction
Act, must have found that he had intended to introduce National
Socialism in Austria; and whereas, furthermore, there is no reason to
consider that the Jury, in arriving at this conclusion, was acting in
bad faith or in any other way inconsistent with the provisions of
Article 6, paragraph (1) (Art. 6-1) of the Convention;

Whereas, in these circumstances, the Applicant's rights to freedom of
thought and expression, as guaranteed in Articles 9 and 10 (Art. 9, 10)
of the Convention were not violated by his conviction and sentence;
whereas, in particular, the Commission finds that the Applicant's
conviction and sentence, which necessarily imposed restrictions upon
him in his exercise of these freedoms, were in pursuance of provisions
in penal law; whereas, further having regard to the Applicant being
duly convicted for activities aimed at the re-introduction into Austria
of National Socialistic activities, the Commission finds that these
restrictions were necessary in a democratic society in the interests
of public safety and national security and for the protection of the
rights and freedoms of others; whereas, therefore, the penal measures
taken against the Applicant were justified under Article 9, paragraph
(2), and Article 10, paragraph (2) (Art. 9-2, 10-2) respectively;

Whereas, consequently, it is not necessary to examine whether these
measures were also satisfied under Article 17 (Art. 17) of the
Convention; whereas it follows that this part of the Application, too,
is manifestly ill-founded and must be rejected in accordance with
Article 27, paragraph (2), (Art. 27-2) of the Convention;

Whereas, in regard to the remaining complaints of the Applicant
concerning the alleged violations of his right to defend himself, an
examination of the case as it has been submitted, included an
examination made ex officio, does not disclose any appearance of a
violation of the rights and freedoms set forth in the Convention and
in particular in Article 6 (Art.6);

Whereas it follows that the remainder of the Application also is
manifestly ill-founded and must be rejected in accordance with Article
27, paragraph (2) (Art. 27-2) of the Convention;

Now therefore the Commission declares this Application INADMISSIBLE.
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