CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 octobre 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 12007/86                       by Erich REBASSO                       against Austria             The European Commission of Human Rights sitting in private on 5 October 1987 the following members being present:                 MM. C.A. NØRGAARD, President                   M.A. TRIANTAFYLLIDES                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 23 December 1985 by Erich REBASSO against Austria and registered on 6 February 1986 under file N° 12007/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS            The facts of the case, as submitted by the applicant, may be summarised as follows:           The applicant, an Austrian citizen born in 1940, is an employee resident in Klagenfurt.   Before the Commission he is represented by Dr.   Unterasinger, a lawyer practising in Graz.           The applicant was involved in various criminal proceedings before the Austrian Courts.   In one set of proceedings before the Klagenfurt Regional Court (Landesgericht) the applicant was convicted on 19 August 1983 of usury (Wucher) towards one Mr.   F.L., though upon appeal the applicant was acquitted by the Graz Court of Appeal (Oberlandesgericht) on 10 April 1984, since F.L. had not in fact been in need of money as required by S. 154 of the Austrian Criminal Code. On 11 April 1984 the newspaper "Neue Kronenzeitung - Kärntner Krone" published a newspaper article on these proceedings in which it stated inter alia:   <Translation>           "Good advice was expensive: Pensioner lost property ...         (The applicant) had ... helped the pensioner ...   F.L.   In order         that the latter ... at his divorce would be 'penniless' ... (the         applicant) advised: 'you sell me pro forma your house' ... 'The         fee for the lawyers and for (the applicant) swallowed the         whole profit'".   <Original>           "Der gute Rat war teuer: Rentner verlor Besitz ... (Der         Beschwerdeführer) hatte sich ... des Rentners F.L. ... angenommen.         Um bei seiner ...   Scheidung als 'Mittelloser' dazustehen ...         riet (der Beschwerdeführer) 'Du verkaufst mir pro forma Dein Haus'         ... 'Das Honorar für ...   Anwälte und für (den Beschwerdeführer)         verschlang den gesamten Erlös'."             In another set of proceedings in which the applicant was accused of fraud the Klagenfurt Regional Court ordered a hearing which was later postponed upon the applicant's request.   On 2 August 1984 the "Neue Kronenzeitung" published an article on the applicant with the headline: "Judge waited: But the applicant 'won't come'" ("Richter wartete: Doch (der Beschwerdeführer) 'kummt net'").   It appears that in these proceedings the applicant was eventually acquitted.           In the applicant's submissions these articles implied that he had incorrectly been acquitted and had purposely stayed away from the hearing.   Moreover, as a financial adviser these articles had brought him into financial difficulties.   For instance, a bank severed its business relations with him.           The applicant demanded damages from the newspaper publisher before the Vienna Regional Court.    He relied on S.6 of the Media Act (Mediengesetz) according to which damages must be paid if the offence of slander (üble Nachrede) has been committed.   In the ensuing proceedings the newspaper publisher did not avail itself of the opportunity to prove that the statements were true.   The applicant was heard by the Court on 21 March 1985.           In its decision of 21 March 1985 the Court held that the two newspaper articles amounted to slander   within the meaning of S.lll of the Austrian Criminal Code (Strafgesetzbuch) and it awarded the applicant 35'000.-AS for each.           The Court which relied on the text of the newspaper articles and the evidence submitted by the applicant found that F.L. had voluntarily handed over the money to the applicant and that in the other proceedings the Court itself had upon the applicant's request postponed the proceedings.   The Court determined the amount of damages by relying inter alia on the financial difficulties which the applicant had suffered due to the newspaper articles.           The newspaper publisher therupon filed an appeal (Berufung) with the Vienna Court of Appeal (Oberlandesgericht).   On 19 August 1985 the latter dismissed the appeal insofar as it concerned nullity and culpability.   The appeal was upheld insofar as it concerned punishment.   In particular, the two amounts previously awarded to the applicant were reduced to the sums of 8'000.- and 5'000.-AS, respectively.           When reducing the damages the Court recalled that the previous decision had assumed financial difficulties of the applicant on account of the newspaper articles.   The judgment continues:   <Translation>              "However, the first Court has overlooked that the ...         economic difficulties were mainly brought about by the         fact that criminal proceedings had been conducted against         the applicant which related to his professional activities.         It has further incorrectly not considered that the applicant's         conduct which had been viewed in the first instance as usury         towards the pensioner F.L. constituted in any event a contestable         conduct which reduced a financial administrator's esteem in         society and economy, since the contract concluded between the         applicant and F.L. only amounted to a fictitious transaction by         means of which F.L. should have been deprived of his fortune         to the disadvantage of his wife's claims.   However, somebody         who conducts himself in such an unsound manner must not be         surprised if he loses credibility with his business partners."   <Original>             "Bei Beurteilung der Auswirkungen der Veröffentlichung hat das         Erstgericht aber übersehen, dass die ... wirtschaftlichen Schwierig-         keiten vor allem durch die Tatsache ausgelöst wurden, dass gegen         den Antragsteller mit seiner beruflichen Tätigkeit zusammen-         hängende Strafverfahren abgeführt wurden.   Es hat weiters zu         Unrecht unberücksichtigt gelassen, dass das in erster Instanz         als Wucher gegenüber dem Rentner F.L. gewertete Verhalten des         Antragstellers jedenfalls ein anfechtbares, der gesellschaftlichen         und wirtschaftlichen Wertschätzung eines Vermögensverwalters         abträgliches Verhalten darstellte, weil das zwischen dem         Antragsteller und F.L. abgeschlossene Geschäft bloss ein         Scheingeschäft darstellte, durch welches F.L. zum Nachteil der         Ansprüche seiner Ehegattin seiner Vermögenswerte entkleidet hätte         werden sollen.   Wer sich aber derart unseriös verhält, darf sich         über den Vertrauensschwund bei seinen Geschäftspartnern nicht         wundern."           The Court found further that the amount also had to be reduced since the accusation that the applicant had behaved improperly towards the court could only be considered together with the other accusations, not on its own.     COMPLAINTS           The applicant complains that during the proceedings before the Vienna Court of Appeal the latter did not present a report (keinen Bericht erstattet) and did not take new evidence.   The judge cut the applicant's lawyer short, and relevant documents were found tied up outside the Court room.   It was unclear from where the Court derived its wrong conclusion that separate criminal proceedings had brought about his financial difficulties, particularly since the Court nevertheless awarded him damages.   The Court had thus decided with a preconceived opinion and he did not have a fair hearing.           Moreover, the Court of Appeal violated the presumption of innocence by unjustifiably accusing the applicant, who had been acquitted in separate criminal proceedings, of contestable and unsound conduct.           The applicant relies on Article 6 of the Convention.     THE LAW   1.       The applicant complains under Article 6 (Art. 6) of the Convention that during the proceedings before the Court of Appeal he did not have a fair hearing, that the Court had a preconceived opinion and that its conclusions were wrong and contradictory.           The Commission notes that before the Austrian courts the applicant demanded damages from a newspaper which the courts granted after considering that the newspaper articles concerned amounted to slander.   The Commission considers that the right to enjoy a good reputation constitutes a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) and that the guarantees of that provision are therefore applicable in the present case (see e.g.   No. 8366/78, Dec. 8.3.79, DR 16 p.196).           Nevertheless, with regard to the judicial decision of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see e.g.   No.485/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           It is true that the applicant has also complained under Article 6 (Art. 6) that the Court of Appeal failed to take new evidence, that it did not present a report, that it cut the applicant's lawyer short, and that certain documents were found tied up outside the Court room. Moreover, in the applicant's submissions it was unclear how the Court reached its conclusion that other criminal proceedings had brought about the applicant's financial difficulties.           The Commission has examined these complaints under Article 6 para. 1 (Art. 6-1) of the Convention.   However, even assuming that all the applicant's allegations could be sufficiently substantiated the Commission recalls that Article 6 para. 1 (Art. 6-1) does not grant an unlimited right to have evidence taken, and it is primarily the task of the respective courts to decide on the relevance to the proceedings of the taking of evidence (see e.g.   No. 7450/76, Dec. 28.2.77, D.R. 9 p. 108). In the present case the applicant was able to make submissions orally and in writing before two different courts, and he has not alleged that in these proceedings, in particular before the Court of Appeal, the respondent party was treated in a different or better manner.   The Commission thus sees no indication that the applicant who was represented by a lawyer could not present his case properly or that the proceedings were improperly conducted.           Insofar as the Court of Appeal, when determining the amount of damages, found that the applicant's financial difficulties were brought about by separate criminal proceedings, the Commission observes that the Court of Appeal was thereby considering in an independent manner the impact of other court proceedings upon the applicant's economic situation.   Furthermore, the Court of Appeal had already resolved the question as such of damages to be awarded to the applicant and it was only determining their exact amount, whereby the issue of criminal proceedings only constituted one of three criteria which the Court of Appeal considered when reaching its conclusion.           As a result, the Commission finds that the complaints at issue do not disclose any appearance of a violation of the rights set out in Article 6 para. 1 (Art. 6-1) of the Convention.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains under Article 6 (Art. 6) of the Convention that the Court of Appeal violated the presumption of innocence by unjustifiably referring to his "contestable" and "unsound" conduct, although he had been acquitted in separate criminal proceedings.           The Commission which has examined this complaint under Article 6 para. 2 (Art. 6-2) of the Convention recalls that the presumption of innocence as guaranteed by this provision is binding not only on the criminal court before which a person is charged with a criminal offence. Rather, no authority may treat a person as guilty of a criminal offence unless he has been convicted by the competent court, and in the case of an acquittal the authorities are bound by the decision that there is no criminal guilt.   There may however be civil responsibility in respect of the same set of facts (see No. 9295/81, Dec. 6.10.82, D.R. 30 pp. 227).           In the present case the Court of Appeal referred in its decision of 19 August 1985 to a "contestable" and "unsound" conduct of the applicant.           The Commission observes that the Court of Appeal mentioned as the reasons for these formulations the applicant's conduct, in particular the fictitious contract which the applicant had negotiated with F.L., and its consequences for the applicant's professional and business activities.   The Court of Appeal did not rely on the criminal charge of usuary brought against the applicant of which he was later acquitted.   In any event, the formulations must be read in the wider context of the decision as a whole in which the Court of Appeal dismissed the newspaper publisher's appeal in respect of nullity and conviction, thus in fact confirming the previous court's decision in particular insofar as it found that the newspaper articles amounted to slander within the meaning of S.lll of the Criminal Code.           In the circumstances of the present case, the Commission finds that the terms employed do not amount to a violation of the applicant's rights under Article 6 para. 2 (Art. 6-2) of the Convention.   The application is therefore also in this respect manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.          Secretary to the Commission              President of the Commission                       (H.C. KRÜGER)                           (C.A. NØRGAARD)