Otto-Preminger Institut v. Austria

Application No. 13470/87, 20 September 1994

Articles: 10 / Conclusion: No violation of Article 10

Summary:
The applicant association aims include providing information on audio-visual media and encouraging the creative use thereof. It also runs a licensed cinema. It was in its cinema that the applicant association intended to screen, the film Das Liebeskonzil (Council in Heaven). Announced by the applicant association as a satire, the film revolved around a play written by Oskar Panizza in 1894 which, after its first performance, gave rise to criminal proceedings against its author. Since 1973, it has been produced, inter alia, in Germany, Italy and Austria. Following a request by the Innsbruck diocese of the Roman Catholic Church, the public prosecutor instituted criminal proceedings against the applicant association’s manager three days before the film was due to be shown, on suspicion of the attempted criminal offence of disparaging religious precepts (Section 188 of the Austrian Penal Code). The day before the scheduled screening, the Innsbruck Regional Court ordered the seizure of the film. The film could not therefore be shown to the public. An appeal filed by the applicant association’s manager against the seizure order was rejected by the Court of Appeal. The criminal proceedings against the applicant association’s manager were discontinued. The further proceedings were conducted as objektives Verfahren, i.e. proceedings not directed towards obtaining the conviction of an individual but aimed at the forfeiture of the film under section 33 of the Media Act. The Regional Court ordered the forfeiture of the film, considering that the severe interference with religious feelings caused by the provocative attitude of the film outweighed the freedom of art guaranteed under the Austrian Constitution. The applicant association’s manager appealed to the Court of Appeal, which found that he lacked locus standi since he did not own the copyright of the film and declared his appeal inadmissible. The Federal Minister for Education, Arts en Sport suggested to the Attorney General that he filed an appeal in the interests of the law with the Supreme Court. The Attorney General declined to do so.

The Court held that the interference with the applicant association’s freedom of expression was prescribed by law. The Government maintained that the seizure and forfeiture of the film were aimed at `the protection of the rights of others’, particularly the right to respect for one’s religious feelings, and at `the prevention of disorder’. The issue before the Court involves weighing up the conflicting interests of the exercise of two fundamental freedoms guaranteed under the Convention, namely the right of the applicant association to impart to the public controversial views, by implication, the right of interested persons to take cognisance of such views, on the one hand, and the right of other persons to proper respect for their freedom of thought, conscience and religion, on the other hand. In so doing, regard must be had to the margin of appreciation left to the national authorities, whose duty it is in a democratic society also to consider, within the limits of their jurisdiction, the interests of society as a whole.

The Austrian courts, ordering the seizure and subsequently the forfeiture of the film, held it to be an abusive attack on the Roman Catholic religion according to the conception of the Tyrolean public. Their judgments show that they had due regard to the freedom of artistic expression, which is guaranteed under Article 10 ECHR and for which Article 17a of the Austrian Basic Law provides specific protection. They did not consider that its merit as a work of art or as a contribution to public debate in Austrian society outweighed those features which made it essentially offensive to the general public within their jurisdiction. The trial courts, after viewing the film, noted the provocative portrayal of God the Father, the Virgin May and Jesus Christ. The content of the film cannot be said to be incapable of grounding the conclusions arrived at by the Austrian courts. The Court cannot disregard the fact that the Roman Catholic religion is the religion of the overwhelming majority of Tyroleans. In seizing the film, the Austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner. It is in the first place for the national authorities, who are better placed than the international judge, to assess the need for such a measure in the light of the situation obtaining locally at a given time. In all the circumstances of the present case, the Court does not consider that the Austrian authorities can be regarded as having overstepped their margin of appreciation in this respect. No violation of Article 10 can therefore be found as far as the seizure is concerned.

The foregoing reasoning also applies to the forfeiture, which determined the ultimate legality of the seizure and under Austrian law was the normal sequel thereto. Article 10 cannot be interpreted as prohibiting the forfeiture in the public interest of items whose use has lawfully been adjudged illicit. Although the forfeiture made it permanently impossible to show the film anywhere in Austria, the Court considers that the means employed were not disproportionate to the legitimate aim pursued and that therefore the national authorities did not exceed their margin of appreciation in this respect. There has accordingly been no violation of Article 10 as regards the forfeiture either.

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