Case Analysis: Otto-Preminger-Institut v Austria

Case Analysis:
Otto-Preminger-Institut v Austria

In this last chapter, we want to exemplify the arguments presented above by analysing the case Otto-Preminger-Institut v Austria, which was decided by the ECtHR in 1994.1 The main aim of this chapter is to give a more concrete account of how the fairly abstract discussion which has dominated this book so far works in case analysis and helps in solving rights conflicts more rationally.

In Otto-Preminger-Institut v Austria, a non-profit-making organization promoting creativity, communication, and entertainment called ‘Otto-Preminger-Institut für audiovisuelle Mediengestaltung’ was operating an art cinema in Innsbruck, Austria. The cinema complained about a violation of Article 10 ECHR.

The facts of the case are as follows: the cinema announced six public showings of the film Das Liebeskonzil, based on a play written by Oskar Panizza in 1894 in respect of which the author was tried for blasphemy in 1895. The play portrays God the father, Jesus Christ, and the Virgin Mary in a critical way. They team up with the devil to punish mankind with syphilis. The film 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. Nearly all showings were scheduled to take place at 10 pm. The announcement was made in an information bulletin distributed by the applicant association to its 2,700 members and in various display windows in Innsbruck. The bulletin stated: ‘Trivial imagery and absurdities of the Christian creed are targeted in a caricature fashion and the relationship between religious beliefs and worldly mechanisms of oppression is investigated.’ The bulletin furthermore stated that, according to the Tyrolean Cinemas Act, persons less than 17 years of age were prohibited from seeing the film. In addition, the audience could see the film only after having paid an entrance fee. At the request of the Innsbruck diocese of the Roman Catholic Church, the Austrian authorities seized and confiscated the film after it had been shown at a private session in the presence of a duty judge. Therefore, the applicant association complained about a violation of Article 10 ECHR which states:

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

We will now first present the reasoning of the Court, both from the view of the majority and from the view of the dissenting judges (section I). This is followed by our own analysis, which reveals a couple of shortcomings in the Court’s reasoning and suggests several improvements to it (section II).

I. The judgment

The Court first of all made clear that the seizure and forfeiture of the film interfered with the applicant’s right to freedom of expression.2 It then stated that the interferences could be justified if the requirements of Article 10(2) ECHR were fulfilled: the interferences must be prescribed by law, they must pursue a legitimate aim under Article 10(2) ECHR, and they must be necessary in a democratic society.3 Since there was no doubt that the measures were prescribed by the domestic law,4 the decisive questions were whether the measures pursued a legitimate aim and whether they were necessary in a democratic society.

1. Legitimate aim

The Court determined whether the measures were aimed to protect the rights of others, a legitimate aim under Article 10(2) ECHR, in particular the right to respect for one’s religious feelings.5 The majority of six judges stated that the right to freedom of thought, guaranteed under Article 9, does not protect believers from all criticism.6 Rather, believers must generally ‘tolerate and accept the denial by others of their religious beliefs and even the propagation by others hostile to their faith’.7 In ‘extreme cases’, however, the Court continued, the opposition to or denial of religious beliefs could inhibit believers from exercising their right altogether.8 These cases engaged ‘the responsibility of the State … to ensure the peaceful enjoyment of the right guaranteed under Article 9’.9 The majority continued that the ‘respect for the religious feelings of believers as guaranteed in Article 9 … can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration’.10 It then stated that the measures aimed to ‘protect the right of citizens not to be insulted in their religious feelings’ and thus a legitimate aim under Article 10(2) ECHR.11

A minority of three judges, however, disagreed. They argued that a right to have one’s religious feelings protected could not be derived from Article 9 ECHR,12 which included, rather, a right to express views critical of the belief of others.13 The protection of religious feelings could only be justified to secure the ‘democratic character of a society’ from ‘violent and abusive attacks on the reputation of religious groups’.14

2. Necessary in a democratic society

The Court then turned to the question of whether the measures were necessary in a democratic society.15 The majority started by determining four general principles. First, the right to freedom of expression was applicable to information or ideas ‘that shock, offend or disturb … any sector of the population’.16 Secondly, whoever exercised this right took the ‘obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights’.17 Thirdly, any sanction or prevention of such ‘improper attacks on objects of religious veneration’ must be ‘proportionate to the legitimate aim pursued’.18 And fourthly, given the different significance of religion in the European states, a certain margin of appreciation was to be left to the national authorities.19

The majority ruled that there was a ‘pressing social need for the preservation of religious peace’ and that it was ‘necessary to protect public order against the film’, since the film was attacking Roman Catholicism.20 According to the majority, the precautions taken by the cinema—the showing in an art cinema, the art-interested audience, the entrance fee and the exclusion of minors—had not been sufficient to prevent unwarranted offence. After all, the film was ‘widely advertised’ and there was ‘sufficient public knowledge of the subject-matter and basic contents of the film’.21 Finally, the majority engaged in ‘weighing up the conflicting interests’, namely the applicants’ right guaranteed under Article 10 ECHR and the religious feelings guaranteed under Article 9 ECHR.22 In this context, the majority accented the margin of appreciation left to the national authorities.23 This margin, the court argued, had not been overstepped in the present case since the Austrian authorities had had ‘due regard to the freedom of artistic expression’ and since they had acted ‘to ensure religious peace and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner’.24 Therefore, the majority concluded, Article 10 ECHR had not been violated.

A minority of three judges, however, disagreed. They argued that the duty of a person availing himself of Article 10 ECHR was ‘to limit, as far as he can reasonably be expected to, the offence … to others’.25 The state could thus only step in if such ‘necessary action’ was ‘insufficient’.26 In this case, the actions taken by the state must be ‘proportionate to the legitimate aim pursued’.27 The actions were generally not proportionate if a ‘less restrictive solution’ was available.28 A complete prohibition of the film, the minority continued, was only acceptable if ‘the behavior concerned reaches so high a level of abuse, and comes so close to a denial of the freedom of religion of others, as to forfeit for itself the right to be tolerated by society’.29 In the present case, the minority argued, the cinema had taken sufficient precautions to give religiously sensitive people the opportunity to stay away from the film.30 The cinema had thus limited the offence to others as far as it could reasonably be expected.31 Furthermore, ‘less restrictive’ measures were available for the state.32 Therefore, ‘on balance’, the minority concluded that the measures were ‘not appropriate’.33

II. Proportionality applied

We now want to determine how the case would have been solved by applying the proportionality test according to the analysis presented above. Since there was neither any doubt that the seizure of the film was interfering with the applicant’s right guaranteed under Article 10 ECHR nor that the measures were prescribed by law, we focus here on the question of whether the measures were proportionate. Following the four rules34 of the test closely, we will deal with the questions of the legitimate aim, the suitability, the necessity, and the proportionality in the narrow sense in turn.

1. Legitimate aim

According to Article 10(2) ECHR, a measure that infringes the right to freedom of expression can only be justified if it pursues a certain legitimate aim. The majority held that the measures legitimately pursued the protection of the religious feelings of others guaranteed in Article 9 ECHR. They thus confirmed a legitimate aim under Article 10(2) ECHR.35 This Article limits the margin in end-setting granted to the Member State by stating an exhaustive list of legitimate aims. The state is thus not free to identify the legitimate aim freely; rather, it may only choose from this list. This is an instance of the second variant of the margin in end-setting.36 Furthermore, the Court was in accordance with the weak trump model developed above. Article 10(2) ECHR indeed includes protecting ‘the rights and interests of others’ without ruling expressly that these aims have to enjoy constitutional status. But the weak trump model developed above holds that only aims with constitutional status may limit a constitutional right.37 Therefore, according to the weak trump model, the Court was limited to choose legitimate aims that enjoy constitutional status as well.

The minority, however, stated that a right to have one’s religious feelings protected cannot be derived from Article 9 ECHR.38 The decisive question is thus whether Article 9 ECHR protects the religious feelings of a person. If it does, the measures undoubtedly pursued a legitimate aim under Article 10(2) ECHR. If it does not, one would have to look further for a different norm protecting religious feelings. This question can be answered by having a look at a more theoretical level. We have discussed the advantages of broad definitions and the disadvantages of narrow definitions.39 Including religious feelings in the protection granted by Article 9 ECHR, as the majority did, certainly means applying a rather broad definition of Article 9 ECHR. Excluding them, as the minority did, leads to a rather narrow definition.

We can demonstrate the disadvantages of narrow definitions in the present case. If religious feelings were excluded from Article 9 ECHR, one would have to give reasons for this exclusion. According to Tsakyrakis, the reason for not protecting religious feelings is that they are simply not important enough to be protected by a fundamental right:

Religious feelings are not ‘worthy of being included in the ambit of a right’.40