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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. AUSTRIA - 1747/62 [1963] ECHR 3 (13 December 1963) URL: http://www.bailii.org/eu/cases/ECHR/1963/1747_62.html Cite as: [1963] ECHR 3

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THE FACTS

Whereas the facts presented by the Applicant may be summarised as
follows:

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 sentenced
to 9 months' imprisonment by the Regional Court (Landesgericht) of A.

The conviction was based on Article 3 g of the Constitutional Act
concerning the Interdiction of the NSDAP (Verfassungsgesetz über das
Verbot 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 of
the Code of Criminal Procedure (Strafprozessordnung) and the Office of
the Public Prosecutor (Staatsanwaltschaft) lodged an appeal (Berufung)
demanding an increase of his sentence.

On ... 1962 the Supreme Court (Oberster Gerichtshof) examined the plea
of nullity in a public session in the presence both of counsel for the
defence and a representative of the Attorney-General
(Generalprokuratur). The Court dismissed the plea of nullity. It then
examined the appeal in camera and, after "hearing" the Office of the
Attorney-General (Generalprokuratur), dismissed the appeal also.

The Applicant complains that he was wrongly convicted. He submits that
the penal provision applied was vague, and that the findings of the
Regional Court, while referring generally to his participation in
several youth organisations, did not indicate any particular acts which
were 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 Commission

A group of three members authorised by the Commission to proceed under
Article 45, paragraph (3), subparagraph (b) of the Rules of Procedure,
considered the Application on 24th May 1963 and decided that the
Respondent Government should be invited to submit its observations on
the admissibility of the Application and, in particular, on the exact
manner in which the Attorney-General participated in the proceedings
on the appeal before the Supreme Court.

The Application was accordingly communicated to the Respondent
Government which, under cover of a letter dated 11th June 1963, replied
that the Attorney-General was not present at the session in camera
where the appeal was deliberated upon by the judges of the Supreme
Court; that he had merely expressed in writing the opinion that the
appeal of the Public Prosecutor was well-founded.

On 20th June 1963, the Commission decided

(1) to declare inadmissible, as being manifestly ill-founded, that part
of 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 Application
and to invite the Respondent Government to submit further observations
on its admissibility.

Under cover of a letter dated 28th August 1963, the Respondent
Government submitted the following observations:

"Before a Jury at the Regional Criminal Court (Landesgericht für
Strafsachen) of A on ... 1960 X was convicted under Section 3 g VG
(Verbotsgesetz - Interdiction Act) and sentenced to 9 months' severe
imprisonment (schwerer Kerker), with the additional penalty of 3 nights
sleeping hard" ("hartes Lager"), for engaging in National-Socialist
activities, in that, from about 1952 onwards, he was training adviser
(Schulungsreferent) of the "League of Young Patriots" ("Bund
Heimattreuer Jugend"), leading member of the "Vienna League of Young
Patriots" ("Bund Heimattreuer Jugend Wien") and of the "Vienna Storm
Youth" ("Wiener Sturmjugend"), Federal Leader (Bundesführer) of the
"Federation of National Youth Leagues of Austria" ("Arbeitsgemeinschaft
Nationaler Jugendbünde Österreichs") and the "Federation of National
Youth Associations of Austria" ("Arbeitsgemeinschaft Nationaler
Jugendverbände Österreichs") and First Spokesman (Erster Sprecher) of
the "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 the
Supreme Court (Oberster Gerichtshof) on the ground that the functions
exercised by him had a National Socialist bias.

With regard to the Applicant's contention that the provision of Section
3 g VG is too vague and hence incompatible with Articles 9, 10 and 14
of the European Convention on Human Rights, we submit as follows:

According to Article 9 of the Convention, everyone has the right to
freedom of thought, conscience and religion;  freedom to manifest one's
religion or beliefs is subject only to such limitations as are
prescribed by law and "are necessary in a democratic society in the
interests of public safety, for the protection of public order, health
or morals, or for the protection of the rights and freedoms of others".

According to Article 10, of the Convention, everyone has the right to
freedom of expression. "The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security ...".

The Applicant's allegation that the penal provision in Section 3 g VG
is vague, is presumably to be understood as meaning that the offence
defined therein, by its alleged lack of precision, admits of such broad
interpretation that the limitations it imposes on the freedoms
guaranteed by the Convention are severer than is necessary in a
democratic society;  in other words, the alleged vagueness of the
provision enables it to be applied also to modes of conduct whose
repression is not indispensable in a democratic society in the
interests of national security etc.

There is no other sense in which the clause's alleged vagueness could
constitute a breach of the Human Rights Convention, since precision in
the definition of an offence is not required by the Convention as an
end in itself. The German text of Article 9 reads (in a literal
translation): "limitations other than those prescribed by law", that
is to say it does not refer to the precision of these limitations,
whereas Article 10 (German version) reads: "... certain formalities
prescribed by law ... which are necessary in a democratic society", but
the word "certain" ("bestimmte") here could just as easily be replaced
by the word "such" ("solche") as in the English text of Article 10,
paragraph (2), which reads: "... may be subject to such (!) ... as are
prescribed by law ...". The word "certaines" in the French text
corresponds 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 application
than is admissible under the Convention on Human Rights, we have the
following observations to make:

In his "Manual on the Austrian Penal Code" ("Lehrbuch des
österreichischen Strafgesetzes"), Volume II, page 355, RITTLER seems
at first sight to endorse the Applicant's assertion when he refers to
Section 3 g VG as a "penal provision of the utmost vagueness and
limitless scope, a provision in which the nature of the offence is by
no means clearly defined (ohne Tatbild) and which offers none of the
guarantees of a constitutional state". But this appears to be an
exaggeration. True, the conception of the offence is wide, but it is
not limitless.

Convinced of the danger of a revival of National Socialism, the
legislator deemed it essential, in addition to specifying a number of
offenses, to insert a general clause providing for the punishment of
any "activity" of a National Socialist nature. The punishment of
"disloyal sentiments" under Section 3 g VG is thus precluded from the
very start (see RITTLER op. cit., page 344). Moreover, as is clear from
the fact that Section 3 g VG provides for a severer penalty "in the
case of special danger", the normal penalty is imposed only for
dangerous activities, so that the provision does not cover petty
offenses. The scope of the clause is further defined by the fact that
the expression "activities of a National Socialist nature" can be
understood only in the sense of a pattern of behaviour (komplexes
Handeln) and consequently does not cover individual acts (see Decision
of the Supreme Court ...). Furthermore, activities can properly be
described as being of a National Socialist nature only when they are
the manifestation of "typical National Socialist ideas" (see Section
1 Rechts-Überleitungsgesetz). RITTLER's question (Volume II, page 355),
whether the organisation of winter relief work (Winterhilfswerk) or the
creation of the institution such as "Kraft durch Freude" ("strength
through joy") in an industrial undertaking fall under the terms of the
provision, must consequently be answered in the negative;  such
institutions are not the outward manifestation of a typical National
Socialist way of thinking. Hence actions, which, though customary
during the period of National Socialist domination, do not run counter
to the spirit of a democratic social order - insofar as they are not
characterised by some typical essential feature - must remain outside
the scope of Section 3 g VG.

Finally, Section 3 g VG is limited by the exclusion of the actions
defined 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) ("auf
andere als die in den Seiten 3 a bis 3 f bezeichnete Weise"). Viewed
in this light, the scope of Section 3 g VG, though wide, is
nevertheless sufficiently delimited.

The question remains to be considered whether the repression of all
modes of conduct covered by Section 3 g VG is necessary (indispensable)
in a democratic society in the interests of public safety and/or
national security, etc. The Austrian legislator, convinced of the
danger which National Socialism presents for the social order, answered
this question in the affirmative and it is scarcely to be supposed that
the European Commission of Human Rights, whose duty it is, after all,
to preserve this democratic order in the European States, will disagree
with him.

The Applicant finally alleges violation of Article 14 of the Convention
which states that the enjoyment of the rights and freedoms set forth
in the Convention shall be secured without discrimination on any ground
such as ... political or other opinion ... .

This provision in no way precludes the limitation, in the ways
enumerated in Articles 9 and 10, of the freedoms set forth therein in
cases where the conduct affected by the limitation is the manifestation
of particular political opinions, otherwise no State could forbid
incitement to political murder. What Article 14 says is merely that the
enjoyment of the rights and freedoms safeguarded in the Convention
shall not be impaired on the subjective grounds listed in Article 14,
but only on the grounds enumerated in the Convention, for instance in
Articles 9 and 10.
We would also point out in this connection that, by retaining the
provision embodied in Section 3 g VG, Austria is fulfilling an
obligation 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 ... 1960
X was served with a copy of the indictment against which he filed a
protest, but withdrew it on ... 1960. On ... 1960 he was summoned to
appear at the main hearing fixed for ... 1960.

In view of these considerations and the fact that he was free at all
times to confer with his counsel during visiting hours, his right to
adequate time and facilities for the preparation of his defence was
manifestly in no way prejudiced. Hence it is evident that the
allegation 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 the
Commission, the Government's observations of 28th August 1963 were sent
to the Applicant who was invited to submit his reply before 19th
September 1963.

Under cover of a letter dated 10th September 1963, the Applicant
submitted the following reply:

"The Respondent Government confirms that I was convicted on account of
my activity as a training adviser (Schulungsreferent) etc. etc.,
although it was explicitly stated both during the trial and in the
Judgment of the Supreme Court that the exercise of the function as such
is not punishable (indeed, other co-accused performing the same
function were acquitted). It is also asserted (just as before the
Supreme Court) that this activity had a National Socialist bias. Once
again, this is an empty allegation backed by no proof. Such proof was
never sought nor was it furnished. I was arrested for publishing an
article (see detention order of ... 1960) calling for a united front
against the growing communist infiltration in Austria (title:  "Unite!).
I was also accused in the indictment of acting within the meaning of
Section 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 accused
of a specific National Socialist action, nor was such action ever
proved. I repeatedly pointed out, for example, that I never even held
a number of the offices mentioned and that, for instance, First
Spokesman of the National Youth Associations' Fellowship Union is an
honorary office in a West German association, which does not exist in
Austria at all, but is naturally permitted in West Germany.

The repression of certain modes of conduct (namely, the free expression
of opinion, orally and in writing), by application of Section 3 g VG,
could be dispensed with in a democratic society. National Socialism
and, in particular, any efforts aimed at destroying democratic
institutions must naturally be resisted. I have never given any support
to such efforts, nor has it ever been claimed or proven that I did. I
have at all times - before my arrest, during my trial and subsequently
- made it perfectly clear that I dislike National Socialism because I
abhor 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 unequivocal
manner as I condemn the practices employed by the Austrian judicial
authorities against persons who hold different political opinions.

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.