Judgment (Merits and Just Satisfaction) of European Court of Human Rights, September 20, 1994 (case CASE OF OTTO-PREMINGER-INSTITUT v. AUSTRIA)

Judge:N\/A
Defense:AUSTRIA
Resolution Date:September 20, 1994
SUMMARY

Preliminary objections rejected (victim estoppel) Preliminary objection rejected (six month period) No violation of Art. 10

 
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COURT (CHAMBER)

CASE OF OTTO-PREMINGER-INSTITUT v. AUSTRIA

(Application no. 13470/87)

JUDGMENT

STRASBOURG

20 September 1994

In the case of Otto-Preminger-Institut v. Austria[],

The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:

             Mr               R. Ryssdal, President,

             Mr               F. Gölcüklü,

             Mr               F. Matscher,

             Mr               B. Walsh,

             Mr               R. Macdonald,

             Mrs               E. Palm,

             Mr               R. Pekkanen,

             Mr               J. Makarczyk,

             Mr               D. Gotchev,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,

Having deliberated in private on 25 November 1993 and on 20 April and 23 August 1994,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

  1.    The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 7 April 1993 and by the Government of the Austrian Republic ("the Government") on 14 May 1993, within the three-month time-limit laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 13470/87) against Austria lodged with the Commission under Article 25 (art. 25) on 6 October 1987 by a private association with legal personality under Austrian law, Otto-Preminger-Institut für audiovisuelle Mediengestaltung (OPI).

    The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Austria recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government’s application referred to Articles 44 and 48 (art. 44, art. 48). The object of the request and the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 (art. 10).

  2.    In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant association stated that it wished to take part in the proceedings and designated the lawyer who would represent it (Rule 30).

  3.    The Chamber to be constituted included ex officio Mr F. Matscher, the elected judge of Austrian nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 23 April 1993, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Gölcüklü, Mr B. Walsh, Mr R. Macdonald, Mrs E. Palm, Mr R. Pekkanen, Mr J. Makarczyk and Mr D. Gotchev (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

  4.    As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Government, the applicant association’s representative and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the orders made in consequence, the Registrar received the Government’s memorial on 24 September 1993 and the applicant’s memorial on 1 October 1993. The Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing.

  5.    On 2 September 1993 the President granted leave to two non-governmental organisations, "Article 19" and Interights, to submit written observations on specific aspects of the case (Rule 37 para. 1). Their observations were received at the registry on 15 October.

  6.    On 14 October 1993 the Commission produced certain documents which the Registrar had sought from it on the President’s instructions.

  7.    On 27 October 1993 the Chamber decided under Rule 41 para. 1 to view the film Das Liebeskonzil, as requested by the applicant. A private showing was held on 23 November 1993.

  8.    In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 24 November.

    There appeared before the Court:

    - for the Government

                               Mr W. Okresek, Head of the International Affairs Division,              

                                             Department of the Constitution, Federal Chancellery,              

                                                           Agent,

                               Mr C. Mayerhofer, Federal Ministry of Justice,

                               Mr M. Schmidt, Federal Ministry of Foreign Affairs,               Advisers;

    - for the Commission

                               Mr M.P. Pellonpää,               Delegate;

    - for the applicant association

                               Mr F. Höpfel, Professor of Law

                                             at the University of Innsbruck, Verteidiger in Strafsachen,              

                                                           Counsel.

    The Court heard their addresses as well as replies to its questions.

    AS TO THE FACTS

    I.   THE PARTICULAR CIRCUMSTANCES OF THE CASE

  9.    The applicant, Otto-Preminger-Institut für audiovisuelle Mediengestaltung (OPI), is a private association under Austrian law established in Innsbruck. According to its articles of association, it is a non-profit-making organisation, its general aim being to promote creativity, communication and entertainment through the audiovisual media. Its activities include operating a cinema called "Cinematograph" in Innsbruck.

  10.    The applicant association announced a series of six showings, which would be accessible to the general public, of the film Das Liebeskonzil ("Council in Heaven") by Werner Schroeter (see paragraph 22 below). The first of these showings was scheduled for 13 May 1985. All were to take place at 10.00 p.m. except for one matinée performance on 19 May at 4 p.m.

    This announcement was made in an information bulletin distributed by OPI to its 2,700 members and in various display windows in Innsbruck including that of the Cinematograph itself. It was worded as follows:

    "Oskar Panizza’s satirical tragedy set in Heaven was filmed by Schroeter from a performance by the Teatro Belli in Rome and set in the context of a reconstruction of the writer’s trial and conviction in 1895 for blasphemy. Panizza starts from the assumption that syphilis was God’s punishment for man’s fornication and sinfulness at the time of the Renaissance, especially at the court of the Borgia Pope Alexander VI. In Schroeter’s film, God’s representatives on Earth carrying the insignia of worldly power closely resemble the heavenly protagonists.

    Trivial imagery and absurdities of the Christian creed are targeted in a caricatural mode and the relationship between religious beliefs and worldly mechanisms of oppression is investigated."

    In addition, the information bulletin carried a statement to the effect that, in accordance with the Tyrolean Cinemas Act (Tiroler Lichtspielgesetz), persons under seventeen years of age were prohibited from seeing the film.

    A regional newspaper also announced the title of the film and the date and place of the showing without giving any particulars as to its contents.

  11.    At the request of the Innsbruck diocese of the Roman Catholic Church, the public prosecutor instituted criminal proceedings against OPI’s manager, Mr Dietmar Zingl, on 10 May 1985. The charge was "disparaging religious doctrines" (Herabwürdigung religiöser Lehren), an act prohibited by section 188 of the Penal Code (Strafgesetzbuch - see paragraph 25 below).

  12.    On 12 May 1985, after the film had been shown at a private session in the presence of a duty judge (Journalrichter), the public prosecutor made an application for its seizure under section 36 of the Media Act (Mediengesetz - see paragraph 29 below). This application was granted by the Innsbruck Regional Court (Landesgericht) the same day. As a result, the public showings announced by OPI, the first of which had been scheduled for the next day, could not take place.

    Those who attended at the time set for the first showing were treated to a reading of the script and a discussion instead.

    As Mr Zingl had returned the film to the distributor, the "Czerny" company in Vienna, it was in fact seized at the latter’s premises on 11 June 1985.

  13.    An appeal by Mr Zingl against the seizure order, filed with the Innsbruck Court of Appeal (Oberlandesgericht), was dismissed on 30 July 1985. The Court of Appeal considered that artistic freedom was necessarily limited by the rights of others to freedom of religion and by the duty of the State to safeguard a society based on order and tolerance. It further held that indignation was "justified" for the purposes of section 188 of the Penal Code only if its object was such as to offend the religious feelings of an average person with normal religious sensitivity. That condition was fulfilled in the instant case and forfeiture of the film could be ordered in principle, at least in "objective proceedings" (see paragraph 28 below). The wholesale derision of religious feeling outweighed any interest the general public might have in information or the financial interests of persons wishing to show the film.

  14.    On 24 October 1985 the criminal prosecution against Mr Zingl was discontinued and the case was pursued in the form of "objective proceedings" under section 33 para. 2 of the Media Act aimed at suppression of the film.

  15.    On 10 October 1986 a trial took place before the Innsbruck Regional Court. The film was again shown in closed session; its contents were described in detail in the official record of the hearing.

    Mr Zingl appears in the official record of the hearing as a witness. He stated that he had sent the film back to the distributor following the seizure order because he wanted nothing more to do with the matter.

    It...

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