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1994
Austrian Penal Code. After the film
had been shown at a private session in
the presence of a duty judge, the
public prosecutor made an application
for its seizure under the relevant law.
This application was granted. As a
result, the public showings announced
by OPI, the first of which had been
scheduled for the next day, could not
take place. An appeal against the
seizure order was dismissed in July
1985 by the Innsbruck Court of
Appeal. The criminal prosecution
against Mr. Zingl was discontinued. In
a subsequent action, the Regional
Court ordered the forfeiture of the
film.
Freedom of Expression
OPI applied to the European
Commission of Human Rights and
alleged a violation of Article 10 of the
European Convention on Human
Rights. Article 10 of the Convention
guarantees freedom of expression
subject to certain exceptions including
the protection of health or morals and
protection of the reputation and the
rights of others. The Commission
declared the application admissible in
1991 and in its report adopted in
January 1993 the Commission
expressed the opinion that there had
been a violation of Article 10.
(a) as regards the seizure of the film
(nine votes to five);
(b) as regards the forfeiture of the
film (thirteen votes to one).
The European Court of Human
Rights
The European Court of Human Rights
held that the seizure and forfeiture
constituted an interference with the
applicant's freedom of expression. On
the issue of whether the interference
had a "legitimate aim", the court
stated that the concept of freedom of
thought, conscience and religion,
which is safeguarded under Article 9
of the Convention is one of the
foundations of a democratic society
within the meaning of the Convention.
It is, in its religious dimension, one of
the most vital elements that go to
make up the identity of believers and
their concept of life.
The Government of Austria had
stressed the role of religion in the
everyday life of the people of the area.
The proportion of Roman Catholic
believers among the Austrian
population as a whole was already
considerable - 78 per cent - but
among the people of the area of Tyrol
- where the film was to be shown -
was as high as 87 per cent.
Consequently, the court considered
that at the material time at least, there
was a pressing social need for the
preservation of religious peace; it
had been necessary to protect public
order against the film and the
Innsbruck courts had not overstepped
their margin of appreciation in
this regard.
The Court could not disregard the fact
that the Roman Catholic religion is
the religion of the overwhelming
majority of Tyroleans and in seizing
the film the Austrian authorities acted
to ensure religious peace in that
region and to prevent attacks on
religious beliefs in an unwarranted
and offensive manner. The Court
considered that in the first place it
was for the national authorities who
were 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 case,
the Court did not consider the
Austrian authorities could be regarded
as having over-stepped their margin of
appreciation. Accordingly, the court
held that there was no violation of
Article 10 (freedom of expression) in
relation to the seizure or the forfeiture
of the film.
In a joint dissenting opinion, Judges
Palm, Pekkanen
and
Makapczyk
considered that they were not able to
agree with the majority that there had
not been-a violation of Article 10 of
the Convention. The dissenting judges
considered that although they did not
deny that the showing of the film
might have offended the religious
feelings of certain segments of the
population of Tyrol, however, taking
into account the measures actually
taken by the applicant association to
protect those who might be offended
and the protection offered by Austrian
legislation to those under 17 years of
age, they were, on balance, of the
opinion that the seizure and forfeiture
of the film in question was not
proportionate to the legitimate aim
pursued.
In 1991, the Law Reform Commission
considered the impact of the
Constitution on the law of blasphemy
(Consultation Paper on the Crime of
Libel 1991, pp. 80-84). The
Commission concluded that the law
protected religious beliefs in the
Judaeo-Christian tradition only and
recommended that the reference to
blasphemy in Article 40.6.1 (i) of the
Constitution be deleted.
•
A m n e s t y L a w y e r s
G r o u p
The Irish Amnesty Lawyers Group,
which operates within the structures
of Amnesty International Ireland, was
reformed last summer at a meeting in
Trinity College, Dublin. The aims of
the Group include letter-writing and
campaigning on issues with a legal
angle. Cases where the death penalty
has been imposed, cases involving
refugee or asylum law or cases
involving lawyers around the world
who have been imprisoned or are
otherwise targeted as a result of their
efforts to protect the human rights of
others are all examples of issues
which the Group may deal with.
The Group also intends to
organise Information Seminars for
members on various human rights
related issues.
The next meeting of the Group will be
a Seminar on the procedures involved
I in taking a case to the European Court
of Human rights in Strasbourg and the
Human Rights Committee in Geneva,
and comparative analysis of the
merits of these systems. This Seminar
is scheduled for
Saturday, 4th
February 1995.
For further
information, contact
Sarah
Farrell,
c/o Lawyers Group, Amnesty
International, 8 Shaw St., Dublin 2 or
at 0 1 - 6 7 1 5699 (work).
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