# أحكام المحاكم الأجنبية Decisions of Foreign Courts > أحكام المحكمة الأوروبية لحقوق الإنسان > Decisions of The European Court of Human Rights >  X. v. AUSTRIA - 1747/62 [1963] ECHR 3 (13 December 1963)

## هيثم الفقى

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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 &Atilde;¼ber dasVerbot der NSDAP), which deals with "National-Socialist activities"("Bet&Atilde;¤tigung 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 f&Atilde;¼rStrafsachen) 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 (Bundesf&Atilde;¼hrer) of the"Federation of National Youth Leagues of Austria" ("ArbeitsgemeinschaftNationaler Jugendb&Atilde;¼nde &Atilde;–sterreichs") and the "Federation of NationalYouth Associations of Austria" ("Arbeitsgemeinschaft NationalerJugendverb&Atilde;¤nde &Atilde;–sterreichs") and First Spokesman (Erster Sprecher) ofthe "National Youth Associations' Fellowship Union"("Kameradschaftsring Nationaler Jugendverb&Atilde;¤nde").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 des&Atilde;¶sterreichischen 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-&Atilde;œberleitungsgesetz). 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]

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## هيثم الفقى

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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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