Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
Closed Mixed Outcome
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The European Court of Human Rights (“ECtHR”) found that proselytism to persons who are obliged to listen, such as a subordinate officer, or someone under external influences, can be a violation of Art 9 of the European Convention on Human Rights (“ECHR”), the right to freedom to manifest their religion or belief. The applicants unsuccessfully appealed under (among others) Article 10, Freedom of Expression. The applicants were sentenced to 13, 12 and 14 months’ imprisonment respectively, and suspended for three years, provided they did not re-offend.
The 1st Applicant proselytized to airmen under his command. This involved a large number of conversations, and the encouragement to joining their church and follow their beliefs.
The 2nd and 3rd Applicant proselytized (in addition to men under their command) to a number of civilians, and also to Mrs. Z, during the breakdown of her marriage.
“[T]he Court notes that the hierarchical structures which are a feature of life in the armed forces may color every aspect of the relations between military personnel, making it difficult for a subordinate to rebuff the approaches of an individual of superior rank or to withdraw from a conversation initiated by him. Thus, what would in the civilian world be seen as an innocuous exchange of ideas which the recipient is free to accept or reject, may, within the confines of military life, be viewed as a form of harassment or the application of undue pressure in abuse of power. It must be emphasized that not every discussion about religion or other sensitive matters between individuals of unequal rank will fall within this category. Nonetheless, where the circumstances so require, States may be justified in taking special measures to protect the rights and freedoms of subordinate members of the armed forces.” 
Due to the pressures of the commanding officer position, the applicants were found to be of violation of Article 9.
With regards to the civilians and Mrs. Z, it was held that they had no obligation to listen to the applicants, and hence were not in violation of Article 9. Mrs. Z and her mental condition during the time of proselytism did not require any special protection for the speech.
The applicants claimed that the measures taken against them had also interfered with their rights to freedom of expression, in breach of Article 10 of the Convention, which states, as relevant:
“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…
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 interests 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 or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 
The Commission, with whom the Government agreed, found that no separate issue arose under this provision.
Having regard to its scrutiny of this case in the context of Article 9, the Court also agrees that no separate issue arises in relation to Article 10.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case is a mixture of freedom of religion and belief, and freedom of expression, it is a clear indication that freedom of expression is allowed to express oneself, as long as the individual is not obliged, implied or expressly to listen, argue and engaged. The persons under the command were obliged to listen, and engage with the applicants, hence it was a breach of Article 9. However, to the civilians and Mrs Z, they had the freedom not to listen, hence protected under Article 10.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The ECtHR’s decision in this case puts ECHR States Parties on notice that the Article 10 Freedom of Expression cannot trump the Article 9 Freedom to Manifest Religion or Belief when individuals utilize positions of authority to proselytize to subordinates and others.
Let us know if you notice errors or if the case analysis needs revision.