SCHIMANEK v. AUSTRIA
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
The applicant is an Austrian national, born in 1963 and living in Vienna. A. On 25 January 1992 the applicant was arrested on the suspicion of having performed activities inspired by National Socialist ideas (Betätigung im nationalsozialistischen Sinn). Upon solemn promise (gegen Gelöbnis) to refrain from such activities he was released on 16 April 1992. The Public Prosecutor’s Office (Staatsanwaltschaft) preferred the indictment (Anklageschrift) on 23 June 1994, charging the applicant with offences under section 3a (2) of the National Socialism Prohibition Act (the Prohibition Act - Verbotsgesetz). From the beginning the proceedings received extensive press coverage. On 27 September 1994 the applicant was questioned as a witness in criminal proceedings brought against G.K., who was also charged with offences under section 3a (2) of the Prohibition Act. Following his testimony, the presiding judge ordered the applicant’s arrest on the suspicion of having given false evidence. On 20 March 1995 the trial against the applicant started before the Assize Court (Geschwornengericht) at the Vienna Regional Criminal Court (Landesgericht für Strafsachen). The presiding judge was the same that had conducted the proceedings against G.K. and had ordered the applicant’s arrest during the hearing on 27 September 1994. Trial hearings were held on nine days. As of the third day, evidence was taken by hearing witnesses, reading out documents and showing video tapes. On the fifth day the applicant’s defence counsel, who was at that stage given the opportunity to make an extensive comment on the evidence taken so far, expressly appreciated the fair and objective conduct of the proceedings. When on the eighth hearing day personal letters of the applicant and his father were read out neither the applicant nor his defence counsel opposed this manner of taking evidence. On 31 March 1995 the Assize Court convicted the applicant under Section 3a (2) of the Prohibition Act (Verbotsgesetz) and sentenced him to fifteen years’ imprisonment. The jury found that the applicant had as leader of an association (Kameradschaft) amongst other activities recruited new members, organised special events where the members of the association were familiarised with a historical view glorifying the dictators of the Third Reich, its army, the SA and the SS, denying at the same time the systematic killing by use of toxic gas under the National Socialist regime and transmitting National Socialist ideology to the members and that he had organised the distribution of pamphlets with similar contents. Further, the jury found that the applicant had organised as of the end of the year 1987 paramilitary training camps (Wehrsportübung) by mobilising members in uniform of different associations organised in the extreme right-wing “Volkstreue Ausserparlamentarische Opposition” (VAPO) with a view to strengthen the feeling of solidarity among the participants, their tactical preparation for violent conflicts and the setting-up of a military cadre which could impose if necessary by the use of force the aims of the VAPO, namely the seizure of power in Austria and the simultaneous incorporation of Austria into an Enlarged Germany (Grossdeutschland). In imposing the sentence, the Assize Court considered the applicant’s confession as a mitigating circumstance while his leading position in the above organisations, the multitude of his activities and the indoctrination of a great number of young people with National Socialist ideas were taken into account as aggravating circumstances. On 16 May 1995 the applicant filed a plea of nullity and an appeal against sentence (Nichtigkeitsbeschwerde und Berufung). In his plea of nullity he complained in particular that the questions put to the jury were not duly formulated and that the legal instructions given to the jury were incorrect. On 22 November 1995 the Supreme Court (Oberster Gerichtshof) confirmed the conviction while reducing the sentence to eight years’ imprisonment. The Supreme Court found that the Assize Court had not duly weighed mitigating and aggravating circumstances. In particular, it had not attached sufficient weight to the applicant’s confession and had failed to take into account that the applicant had renounced the incriminated activities in 1992. Moreover, he had clearly placed himself at a distance from his former activities during the trial. Having regard to the recent conviction under section 3a (2) of the Prohibition Act of G.K. who had been the founder and leader of VAPO and was sentenced to eleven years’ imprisonment, a sentence of fifteen years’ imprisonment for the applicant appeared disproportionate. Finally, the Supreme Court, referring to section 41 § 1 of the Criminal Code (Strafgesetzbuch) found that the conditions for an extraordinary mitigation of sentence (ausserordentliche Strafmilderung) were met, i.e. a sentence below of the statupplicant’s guilt. B. Relevant domestic law Section 3a (2) of the National Socialism Prohibition Act, as amended in 1992 by Federal Law Gazette (Bundesgesetzblatt) no. 148/1992, reads as follows: “The following persons shall be guilty of a criminal offence and shall be liable to ten to twenty years’ imprisonment or, in the event that the perpetrator or the activity is deemed to be particularly dangerous, life imprisonment: 1. ... 2. Whosoever founds an association whose purpose, through its members’ activities inspired by National Socialist ideas, is to undermine the autonomy and independence of the Austrian Republic or to subvert public order and the reconstruction of Austria, or plays a leading role in an association of that kind.” Before the amendment, which entered into force on 20 March 1992, the offence carried life imprisonment. Section 41 § 1 of the Criminal Code provides that if the mitigating circumstances clearly outweigh the aggravating circumstances and if there are sufficient reasons to believe that the perpetrator will refrain from committing further offences in case a sentence below the statutory level of punishment is imposed, the court may hand down a sentence of not less than one years’ imprisonment if the offence is punishable with life imprisonment or with ten to twenty years’ imprisonment or life imprisonment. 