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Objectives and Activities

B H, M W, H P and G K v Austria (decision), 12 October 1989 [ECtHR]

Case no 12774/87

1. ... The applicants submit that Section 3g of the National Socialism Prohibition Act is not a valid norm of Austrian law. It was enacted in an unlawful procedure and abrogated by subsequent constitutional legislation, including Article 10 (Art. 10) of the Convention. Moreover Section 3g is not sufficiently precise to serve as a basis for a criminal conviction. Its broad wording allows arbitrary application to acts not inspired by National Socialist ideology, but by German nationalist thinking compatible with the Austrian democratic system.  here has thus been a violation of Article 7 para. 1 (Art.7-1) of the Convention.

        The Commission notes, however, that the Austrian Supreme Court confirmed the continued validity and the constitutionality of Section 3g of the Prohibition Act, which is primarily a question of internal law. The Commission finds that this decision is neither arbitrary nor unreasonable. It here observes that in the Austrian State Treaty of 1955 Austria undertook to maintain its legislation outlawing National Socialist activities. As regards the alleged lack of precision of Section 3g, it is true that the reference to "activities inspired by National Socialist ideas" is rather vague. However, the legislator intended to outlaw any kind of National Socialist activities.  he scope of the provision is limited to National Socialism as a historical ideology, frequently referred to in Austria and elsewhere. This is a sufficiently precise concept which allows distinctions to be drawn from other types of nationalist thinking. The Commission notes that the case-law and legal doctrine in Austria have developed further criteria making the applicable law sufficiently accessible and foreseeable. Thus the jury in the present case was also able to distinguish between activities of the applicants which could and which could not be regarded as being inspired by National Socialist ideas.

        The Commission therefore finds no appearance of a violation of Article 7 (Art. 7) of the Convention. This part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2.      The applicants claim that Section 3g, as applied in their case, unjustifiedly interfered with their freedom of expression guaranteed by Article 10 (Art. 10) of the Convention in that it provided a disproportionate sanction for the expression of certain opinions, in particular on historical facts which should be discussed freely in a democratic society. The applicants also complain of discrimination, contrary to Article 14 (Art. 14) of the Convention, on account of their being Austrians attached to German nationalism, and state that similar sanctions are not provided for those who deny, minimize or defend communist crimes or war crimes of the Allied Powers. Finally, they invoke Article 18 (Art. 18) of the Convention, claiming that the restrictions of  their freedom of expression were applied for other purposes than authorised by the Convention, namely in order to suppress German nationalist thinking and publications which were not forbidden.

        However, the Commission finds no indication of a violation of these provisions. The prohibition against activities involving expression of National Socialist ideas is both lawful in Austria and, in view of the historical past forming the immediate background of the Convention itself, can be justified as being necessary in a democratic society in the interests of national security and territorial integrity as well as for the prevention of crime. It is therefore covered by Article 10 para. 2 (Art. 10-2) of the Convention.

        Insofar as National Socialist activities are treated differently in Section 3g from those of other political groups, this has an objective and reasonable justification in the historical experience of Austria during the National Socialist era, her treaty obligations, and the danger which activities based on National Socialist thinking may constitute for the Austrian society. The Commission also refers to Article 17 (Art. 17) of the Convention which provides  that nothing in the Convention shall be interpreted as implying for any group or person any right to engage in any activity aimed at the destruction or limitation of the Convention rights (cf. No. 12194/86, Kühnen v. Federal Republic of Germany, Dec. 12.5.88, to be published in D.R.). The Commission notes that National Socialism is a totalitarian doctrine incompatible with democracy and human rights and that its adherents undoubtedly pursue aims of the kind referred to in Article 17 (Art. 17). There is therefore no appearance of discrimination  contrary to Article 14 (Art. 14) of the Convention.

        Insofar as the applicants finally allege that, contrary to Article 18 (Art. 18) of the Convention, the restriction of their freedom of expression pursued other purposes than those provided for in the Convention, the Commission finds no indication that they were actually convicted of anything but activities inspired by National Socialist ideas. This also applies to the promotion of publications for which the applicants were convicted. 

        The applicants' complaints based on Articles 10, 14 and 18 (Art. 10, 14, 18) of the Convention are therefore manifestly ill-founded.

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