PROCEDURE

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).

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).

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).

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.

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.

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

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.

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

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.

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.

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).

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.

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.

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.

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 appears from the judgment - which was delivered the same day - that Mr Zingl was considered to be a “potentially liable interested party“ (Haftungsbeteiligter). The Regional Court found it to be established that the distributor of the film had waived its right to be heard and had agreed to the destruction of its copy of the film.

In its judgment the Regional Court ordered the forfeiture of the film. It held: “The public projection scheduled for 13 May 1985 of the film Das Liebeskonzil, in which God the Father is presented both in image and in text as a senile, impotent idiot, Christ as a cretin and Mary Mother of God as a wanton lady with a corresponding manner of expression and in which the Eucharist is ridiculed, came within the definition of the criminal offence of disparaging religious precepts as laid down in section 188 of the Penal Code.“ The court’s reasoning included the following: “The conditions of section 188 of the Penal Code are objectively fulfilled by this portrayal of the divine persons - God the Father, Mary Mother of God and Jesus Christ are the central figures in Roman Catholic religious doctrine and practice, being of the most essential importance, also for the religious understanding of the believers - as well as by the above-mentioned expressions concerning the Eucharist, which is one of the most important mysteries of the Roman Catholic religion, the more so in view of the general character of the film as an attack on Christian religions ... ... Article 17a of the Basic Law (Staatsgrundgesetz) guarantees the freedom of artistic creation and the publication and teaching of art. The scope of artistic freedom was broadened (by the introduction of that article) to the extent that every form of artistic expression is protected and limitations of artistic freedom are no longer possible by way of an express legal provision but may only follow from the limitations inherent in this freedom ... . Artistic freedom cannot be unlimited. The limitations on artistic freedom are to be found, firstly, in other basic rights and freedoms guaranteed by the Constitution (such as the freedom of religion and conscience), secondly, in the need for an ordered form of human coexistence based on tolerance, and finally in flagrant and extreme violations of other interests protected by law (Verletzung anderer rechtlich geschützter Güter), the specific circumstances having to be weighed up against each other in each case, taking due account of all relevant considerations ... The fact that the conditions of section 188 of the Penal Code are fulfilled does not automatically mean that the limit of the artistic freedom guaranteed by Article 17a of the Basic Law has been reached. However, in view of the above considerations and the particular gravity in the instant case - which concerned a film primarily intended to be provocative and aimed at the Church - of the multiple and sustained violation of legally protected interests, the basic right of artistic freedom will in the instant case have to come second. ...“

Mr Zingl appealed against the judgment of the Regional Court, submitting a declaration signed by some 350 persons who protested that they had been prevented from having free access to a work of art, and claiming that section 188 of the Penal Code had not been interpreted in line with the guarantee of freedom of art laid down by Article 17a of the Basic Law. The Innsbruck Court of Appeal declared the appeal inadmissible on 25 March 1987. It found that Mr Zingl had no standing, as he was not the owner of the copyright of the film. The judgment was notified to OPI on 7 April 1987.

Prompted by the applicant association’s lawyer, the then Minister for Education, Arts and Sports, Dr Hilde Hawlicek, wrote a private letter to the Attorney General (Generalprokurator) suggesting the filing of a plea of nullity for safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) with the Supreme Court (Oberster Gerichtshof). The letter was dated 18 May 1987 and mentioned, inter alia, Article 10 (art. 10) of the Convention. The Attorney General decided on 26 July 1988 that there were no grounds for filing such a plea of nullity. The decision mentioned, inter alia, that the Attorney General’s Department (Generalprokuratur) had long held the view that artistic freedom was limited by other basic rights and referred to the ruling of the Supreme Court in the case concerning the film Das Gespenst (“The Ghost“ - see paragraph 26 below); in the Attorney General’s opinion, in that case the Supreme Court had “at least not disapproved“ of that view (“Diese Auffassung ... wurde vom Obersten Gerichtshof ... zumindest nicht mißbilligt“).

There have been theatre performances of the original play in Austria since then: in Vienna in November 1991, and in Innsbruck in October 1992. In Vienna the prosecuting authorities took no action. In Innsbruck several criminal complaints (Strafanzeigen) were laid by private persons; preliminary investigations were conducted, following which the prosecuting authorities decided to discontinue the proceedings.

II. THE FILM “DAS LIEBESKONZIL“

The play on which the film is based was written by Oskar Panizza and published in 1894. In 1895 Panizza was found guilty by the Munich Assize Court (Schwurgericht) of “crimes against religion“ and sentenced to a term of imprisonment. The play was banned in Germany although it continued in print elsewhere.

The play portrays God the Father as old, infirm and ineffective, Jesus Christ as a “mummy’s boy“ of low intelligence and the Virgin Mary, who is obviously in charge, as an unprincipled wanton. Together they decide that mankind must be punished for its immorality. They reject the possibility of outright destruction in favour of a form of punishment which will leave it both “in need of salvation“ and “capable of redemption“. Being unable to think of such a punishment by themselves, they decide to call on the Devil for help. The Devil suggests the idea of a sexually transmitted affliction, so that men and women will infect one another without realising it; he procreates with Salome to produce a daughter who will spread it among mankind. The symptoms as described by the Devil are those of syphilis. As his reward, the Devil claims freedom of thought; Mary says that she will “think about it“. The Devil then dispatches his daughter to do her work, first among those who represent worldly power, then to the court of the Pope, to the bishops, to the convents and monasteries and finally to the common people.

The film, directed by Werner Schroeter, was released in 1981. It begins and ends with scenes purporting to be taken from the trial of Panizza in 1895. In between, it shows a performance of the play by the Teatro Belli in Rome. The film portrays the God of the Jewish religion, the Christian religion and the Islamic religion as an apparently senile old man prostrating himself before the Devil with whom he exchanges a deep kiss and calling the Devil his friend. He is also portrayed as swearing by the Devil. Other scenes show the Virgin Mary permitting an obscene story to be read to her and the manifestation of a degree of erotic tension between the Virgin Mary and the Devil. The adult Jesus Christ is portrayed as a low grade mental defective and in one scene is shown lasciviously attempting to fondle and kiss his mother’s breasts, which she is shown as permitting. God, the Virgin Mary and Christ are shown in the film applauding the Devil.