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X. v. AUSTRIA - 1747/62 [1963] ECHR 3 (13 December 1963)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is an Austrian citizen, born in ... and living in A.From a document submitted by the Applicant, it appears that, on ...1960, he was convicted on charges of neo-Nazi activities and sentencedto 9 months' imprisonment by the Regional Court (Landesgericht) of A.The conviction was based on Article 3 g of the Constitutional Actconcerning the Interdiction of the NSDAP (Verfassungsgesetz über dasVerbot der NSDAP), which deals with "National-Socialist activities"("Betätigung im nationalsozialistischen Sinne").The Applicant lodged a plea of nullity (Nichtigkeitsbeschwerde)alleging violations of Article 345, paragraph (1), Nos. 6, 8 and 11 ofthe Code of Criminal Procedure (Strafprozessordnung) and the Office ofthe Public Prosecutor (Staatsanwaltschaft) lodged an appeal (Berufung)demanding an increase of his sentence.On ... 1962 the Supreme Court (Oberster Gerichtshof) examined the pleaof nullity in a public session in the presence both of counsel for thedefence and a representative of the Attorney-General(Generalprokuratur). The Court dismissed the plea of nullity. It thenexamined the appeal in camera and, after "hearing" the Office of theAttorney-General (Generalprokuratur), dismissed the appeal also.The Applicant complains that he was wrongly convicted. He submits thatthe penal provision applied was vague, and that the findings of theRegional Court, while referring generally to his participation inseveral youth organisations, did not indicate any particular acts whichwere found to be National-Socialist activities.The Applicant alleges violations of Article 6, paragraphs (2) and (3),subparagraph (b), Articles 9, 10 and 14 of the Convention.Proceedings before the CommissionA group of three members authorised by the Commission to proceed underArticle 45, paragraph (3), subparagraph (b) of the Rules of Procedure,considered the Application on 24th May 1963 and decided that theRespondent Government should be invited to submit its observations onthe admissibility of the Application and, in particular, on the exactmanner in which the Attorney-General participated in the proceedingson the appeal before the Supreme Court.The Application was accordingly communicated to the RespondentGovernment which, under cover of a letter dated 11th June 1963, repliedthat the Attorney-General was not present at the session in camerawhere the appeal was deliberated upon by the judges of the SupremeCourt; that he had merely expressed in writing the opinion that theappeal of the Public Prosecutor was well-founded.On 20th June 1963, the Commission decided(1) to declare inadmissible, as being manifestly ill-founded, that partof the Application which related to the question of "equality of arms"(Waffengleichheit) before the Supreme Court;(2) to adjourn its consideration of the remainder of the Applicationand to invite the Respondent Government to submit further observationson its admissibility.Under cover of a letter dated 28th August 1963, the RespondentGovernment submitted the following observations:"Before a Jury at the Regional Criminal Court (Landesgericht fürStrafsachen) of A on ... 1960 X was convicted under Section 3 g VG(Verbotsgesetz - Interdiction Act) and sentenced to 9 months' severeimprisonment (schwerer Kerker), with the additional penalty of 3 nightssleeping hard" ("hartes Lager"), for engaging in National-Socialistactivities, in that, from about 1952 onwards, he was training adviser(Schulungsreferent) of the "League of Young Patriots" ("BundHeimattreuer Jugend"), leading member of the "Vienna League of YoungPatriots" ("Bund Heimattreuer Jugend Wien") and of the "Vienna StormYouth" ("Wiener Sturmjugend"), Federal Leader (Bundesführer) of the"Federation of National Youth Leagues of Austria" ("ArbeitsgemeinschaftNationaler Jugendbünde Österreichs") and the "Federation of NationalYouth Associations of Austria" ("Arbeitsgemeinschaft NationalerJugendverbände Österreichs") and First Spokesman (Erster Sprecher) ofthe "National Youth Associations' Fellowship Union"("Kameradschaftsring Nationaler Jugendverbände").X's plea of nullity (Nichtigkeitsbeschwerde) and appeal (Berufung)against this judgment was dismissed on ... 1962 by decision ... of theSupreme Court (Oberster Gerichtshof) on the ground that the function***ercised by him had a National Socialist bias.With regard to the Applicant's contention that the provision of Section3 g VG is too vague and hence incompatible with Articles 9, 10 and 14of the European Convention on Human Rights, we submit as follows:According to Article 9 of the Convention, everyone has the right tofreedom of thought, conscience and religion; freedom to manifest one'sreligion or beliefs is subject only to such limitations as areprescribed by law and "are necessary in a democratic society in theinterests of public safety, for the protection of public order, healthor morals, or for the protection of the rights and freedoms of others".According to Article 10, of the Convention, everyone has the right tofreedom of expression. "The exercise of these freedoms, since itcarries with it duties and responsibilities, may be subject to suchformalities, conditions, restrictions or penalties as are prescribedby law and are necessary in a democratic society, in the interests ofnational security ...".The Applicant's allegation that the penal provision in Section 3 g VGis vague, is presumably to be understood as meaning that the offencedefined therein, by its alleged lack of precision, admits of such broadinterpretation that the limitations it imposes on the freedomsguaranteed by the Convention are severer than is necessary in ademocratic society; in other words, the alleged vagueness of theprovision enables it to be applied also to modes of conduct whoserepression is not indispensable in a democratic society in theinterests of national security etc.There is no other sense in which the clause's alleged vagueness couldconstitute a breach of the Human Rights Convention, since precision inthe definition of an offence is not required by the Convention as anend in itself. The German text of Article 9 reads (in a literaltranslation): "limitations other than those prescribed by law", thatis to say it does not refer to the precision of these limitations,whereas Article 10 (German version) reads: "... certain formalitiesprescribed by law ... which are necessary in a democratic society", butthe word "certain" ("bestimmte") here could just as easily be replacedby the word "such" ("solche") as in the English text of Article 10,paragraph (2), which reads: "... may be subject to such (!) ... as areprescribed by law ...". The word "certaines" in the French textcorresponds to the German word "bestimmte" in the sense of "solche".As to the alleged vagueness of the provision itself and, in particular,the contention that it admits of a wider interpretation and applicationthan is admissible under the Convention on Human Rights, we have thefollowing observations to make:In his "Manual on the Austrian Penal Code" ("Lehrbuch desösterreichischen Strafgesetzes"), Volume II, page 355, RITTLER seemsat first sight to endorse the Applicant's assertion when he refers toSection 3 g VG as a "penal provision of the utmost vagueness andlimitless scope, a provision in which the nature of the offence is byno means clearly defined (ohne Tatbild) and which offers none of theguarantees of a constitutional state". But this appears to be anexaggeration. True, the conception of the offence is wide, but it isnot limitless.Convinced of the danger of a revival of National Socialism, thelegislator deemed it essential, in addition to specifying a number ofoffenses, to insert a general clause providing for the punishment ofany "activity" of a National Socialist nature. The punishment of"disloyal sentiments" under Section 3 g VG is thus precluded from thevery start (see RITTLER op. cit., page 344). Moreover, as is clear fromthe fact that Section 3 g VG provides for a severer penalty "in thecase of special danger", the normal penalty is imposed only fordangerous activities, so that the provision does not cover pettyoffenses. The scope of the clause is further defined by the fact thatthe expression "activities of a National Socialist nature" can beunderstood only in the sense of a pattern of behaviour (komplexesHandeln) and consequently does not cover individual acts (see Decisionof the Supreme Court ...). Furthermore, activities can properly bedescribed as being of a National Socialist nature only when they arethe manifestation of "typical National Socialist ideas" (see Section1 Rechts-Überleitungsgesetz). RITTLER's question (Volume II, page 355),whether the organisation of winter relief work (Winterhilfswerk) or thecreation of the institution such as "Kraft durch Freude" ("strengththrough joy") in an industrial undertaking fall under the terms of theprovision, must consequently be answered in the negative; suchinstitutions are not the outward manifestation of a typical NationalSocialist way of thinking. Hence actions, which, though customaryduring the period of National Socialist domination, do not run counterto the spirit of a democratic social order - insofar as they are notcharacterised by some typical essential feature - must remain outsidethe scope of Section 3 g VG.Finally, Section 3 g VG is limited by the exclusion of the actionsdefined in Sections 3 (a) to 3 (f) VG, since it includes the phrase:"in ways other than that mentioned in Sections 3 (a) to 3 (f) ("aufandere als die in den Seiten 3 a bis 3 f bezeichnete Weise"). Viewedin this light, the scope of Section 3 g VG, though wide, isnevertheless sufficiently delimited.The question remains to be considered whether the repression of allmodes of conduct covered by Section 3 g VG is necessary (indispensable)in a democratic society in the interests of public safety and/ornational security, etc. The Austrian legislator, convinced of thedanger which National Socialism presents for the social order, answeredthis question in the affirmative and it is scarcely to be supposed thatthe European Commission of Human Rights, whose duty it is, after all,to preserve this democratic order in the European States, will disagreewith him.The Applicant finally alleges violation of Article 14 of the Conventionwhich states that the enjoyment of the rights and freedoms set forthin the Convention shall be secured without discrimination on any groundsuch as ... political or other opinion ... .This provision in no way precludes the limitation, in the waysenumerated in Articles 9 and 10, of the freedoms set forth therein incases where the conduct affected by the limitation is the manifestationof particular political opinions, otherwise no State could forbidincitement to political murder. What Article 14 says is merely that theenjoyment of the rights and freedoms safeguarded in the Conventionshall not be impaired on the subjective grounds listed in Article 14,but only on the grounds enumerated in the Convention, for instance inArticles 9 and 10.We would also point out in this connection that, by retaining theprovision embodied in Section 3 g VG, Austria is fulfilling anobligation contracted under Article 10 of the State Treaty.X, who was detained from ... 1960 to ... 1960 and from ... 1960 to ...1960, appointed Dr. Z, barrister, as his defence counsel. On ... 1960X was served with a copy of the indictment against which he filed aprotest, but withdrew it on ... 1960. On ... 1960 he was summoned toappear at the main hearing fixed for ... 1960.In view of these considerations and the fact that he was free at alltimes to confer with his counsel during visiting hours, his right toadequate time and facilities for the preparation of his defence wasmanifestly in no way prejudiced. Hence it is evident that theallegation of a violation of Article 6, paragraphs (2) and (3),sub-paragraph (b), of the Convention is also unfounded!"On 3rd September 1963, on the instructions of the President of theCommission, the Government's observations of 28th August 1963 were sentto the Applicant who was invited to submit his reply before 19thSeptember 1963.Under cover of a letter dated 10th September 1963, the Applicantsubmitted the following reply:"The Respondent Government confirms that I was convicted on account ofmy activity as a training adviser (Schulungsreferent) etc. etc.,although it was explicitly stated both during the trial and in theJudgment of the Supreme Court that the exercise of the function as suchis not punishable (indeed, other co-accused performing the samefunction were acquitted). It is also asserted (just as before theSupreme Court) that this activity had a National Socialist bias. Onceagain, this is an empty allegation backed by no proof. Such proof wasnever sought nor was it furnished. I was arrested for publishing anarticle (see detention order of ... 1960) calling for a united frontagainst the growing communist infiltration in Austria (title: "Unite!).I was also accused in the indictment of acting within the meaning ofSection 3 g VG, because I "held club meetings" ("Heimabende abhielt")and because the youth groups I belonged to had "flags and pennants"("Fahnen und Wimpel").All the other allegations were equally vague. In no case was I accusedof a specific National Socialist action, nor was such action everproved. I repeatedly pointed out, for example, that I never even helda number of the offices mentioned and that, for instance, FirstSpokesman of the National Youth Associations' Fellowship Union is anhonorary office in a West German association, which does not exist inAustria at all, but is naturally permitted in West Germany.The repression of certain modes of conduct (namely, the free expressionof opinion, orally and in writing), by application of Section 3 g VG,could be dispensed with in a democratic society. National Socialismand, in particular, any efforts aimed at destroying democraticinstitutions must naturally be resisted. I have never given any supportto such efforts, nor has it ever been claimed or proven that I did. Ihave at all times - before my arrest, during my trial and subsequently- made it perfectly clear that I dislike National Socialism because Iabhor any restriction of personal freedom and freedom of expression.I can truthfully say that I would have supported National Socialism,if I had held (of hold) such convictions, in the same unequivocalmanner as I condemn the practices employed by the Austrian judicialauthorities against persons who hold different political opinions.[/align]