The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER

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. 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. Freedom of Expression

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

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

(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.

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). a

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