THE FACTS

The facts of the case, as submitted by the applicant company, may be
summarised as follows:

The applicant, a publishing firm in F., Federal Republic of Germany,
is represented before the Commission by Dr. H., a barrister in Vienna.

On .. March 1971 the Regional Court (Landesgericht) of Innsbruck
confiscated (für verfallen erklärt) at the request of the Public
Prosecutor a book and several prospectuses which the applicant had
tried to send to a person in Austria. The book was entitled "The
lascivious pastor's wanton niece". The Court found that the importation
into Austria of these publications was a crime within the meaning of
Article 1 (1) (b) and (c) of an Act of 31 March 1950 concerning the
suppression of obscene publications and the protection of minors
against the dangers of immorality (Gesetz betr. Bekämpfung unzüchtiger
Veröffentlichungen und den Schutz der Jugend gegen sittliche
Gefährdung, also called Pornographiegesetz) The Article provides inter
alia that a person who, in order to make a profit, imports and
distributes obscene (unzüchtig) publications is guilty of a crime.
Referring to various pages of the book, the Court stated that the
publications in question portrayed or described sexual acts in a manner
which seriously violated generally accepted notions of decency and
morality (gegen das allgemeine Scham- und Sittlichkeitsgefühl grob
verstoßend). The descriptions were, according to the Court, not
justified as being of artistic or scientific nature. The pornographic
content was, in the opinion of the Court, the primary purpose of the
book and any story linked therewith merely incidental. The Court
concluded that according to Article 42 of the press law (Pressegesetz)
the publications had to be confiscated as it was not possible to
prosecute the offender in Austria.

The applicant's plea of nullity (Nichtigkeitsbeschwerde) against the
Regional Court's decision was rejected by the Supreme Court (Oberster
Gerichtshof) on .. December 1971. It appears that the Attorney General
(Generalprokurator) pleaded in favour of the applicant. The Supreme
Court, however, confirmed the findings of the Regional Court. Citing
various passages from the book and the applicants prospectus as
example, the Court was of the opinion that the representations and the
descriptions of sexual acts in the book, as well as in the prospectus,
were destined to incite sexual desires and were of no literary value.
The story of the book was in the opinion of the court a mere pretext
for the accumulation of obscene scenes.

The Court stated that even if no action was taken against publishers
of magazines, although certain magazines likewise contain obscene
articles, this was of no importance in the applicants' case as it
depends on the Public Prosecutor to institute proceedings or not.

The Supreme Court's decision was allegedly served on the applicant's
lawyer on .. February 1972.

Complaints

The applicant complains of the above-mentioned decisions alleging that
they constitute a violation of Article 10 (1) of the Convention. The
applicant is aware that the right to freedom of expression is subject
to limitations as is provided in paragraph 2 of Article 10 of the
Convention. In their opinion, however, the Austrian courts have wrongly
interpreted the Pornography Act, i.e. the term "obscene" (unzüchtig)
contained therein and have thereby exceeded the limitations. The
applicant argues that moral is an ethical value which changes with the
time, e.g. a photo of a naked woman on the front page of a periodical
would have shocked people in 1950 while nowadays such representations
are frequent and commonly tolerated. Therefore, their plea of nullity
was allegedly supported by the Attorney General who argued that the
theme obscenity (Unzüchtigkeit) had changed its meaning and now only
applied to pornography which was "unbearably repulsive" (unerträglich
abstoßend), e.g. intercourse with animals or among children.

The question as to whether pornography has an artistic value or not
can, in the opinion of the application, not depend on legal standards
but only on the taste and the mentality of each individual. They point
out that sex education in schools is obligatory in some States and
discussed in others, that sexual intercourse is shown in films which
- also in Austria - attract a large number of spectators, and that in
Sweden and Denmark there is no restriction with regard to pornography
while it cannot be said that this resulted in a decline of morals.

The applicant concludes that one also has to respect the right of those
who are interested in pornography as a form of information.


THE LAW

The applicant has alleged that the confiscation of their book violated
their right to receive and impart information as guaranteed by Article
10 (1) (Art. 10-1) of the Convention.

The exercise of this right may however, be subjected to such
restrictions as are prescribed by law and are necessary in a democratic
society for the protection of health or morals (Article 10 (2)
(Art. 10-2)). The restriction in the present case was the application
by the Austrian Supreme Court, on final appeal, of the Act of 31 March
1950 to a book published by the applicant.

In respect of the application of the Act in the present case, the
Commission does not consider it necessary to examine in detail the
actual contents of the book in question as the Supreme Court's decision
which the applicant has submitted, cites various passages from it, and
finds that they at least were not justified as having artistic or
scientific purposes. Further, the applicant has not presented to the
Commission any evidence sufficient to contradict that finding, and the
title of the book speaks for itself.

The Commission therefore finds that the Regional Court of Innsbruck and
the Supreme Court have not applied to the book the restrictions
contained in the Act on the right to receive and impart information in
a manner contrary to the provisions of the Convention and in particular
to Article 10 (Art. 10).

An examination by the Commission of this complaint as it has been
submitted, including an examination made ex officio, does not therefore
disclose any appearance of a violation of the rights and freedoms set
out in the Convention and in particular in the above Article.

It follows that the application is manifestly ill-founded within the
meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.

For these reasons the Commission DECLARES THIS APPLICATION
INADMISSIBLE.