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. 12096/86                       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                   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 4 March 1986 by Erich REBASSO against Austria and registered on 7 April 1986 under file N° 12096/86;           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 applicant, an Austrian citizen born in 1940, is an employee resident in Vienna.   Before the Commission he is represented by Dr.   Unterasinger, a lawyer practising in Graz.   I.           The facts of the present application correspond partly to the facts submitted by the applicant in Application No. 12007/86 which was declared inadmissible by the Commission on 5 October 1987.           In particular, the applicant demanded damages before the Vienna Regional Court (Landesgericht)   from a newspaper publisher for two newspaper articles which had been published in the newspaper "Neue Kronenzeitung - Kärtner Echo".   On 21 March 1985 the Regional Court held that the two newspaper articles amounted to slander (üble Nachrede) within the meaning of S.111 of the Austrian Criminal Code (Strafgesetzbuch) and it awarded the appplicant 35'000.-AS for each. Upon appeal the Vienna Court of Appeal (Oberlandesgericht) on 19 August 1985 reduced the amounts to the sums of 8'000.- and 5'000.-, respectively.   II.           The present application concerns facts subsequent to the Court of Appeal's decision of 19 August 1985.           On 24 August 1985 the "Neue Kronenzeitung - Kärtner Echo" published the operative part of the decision of the Regional Court of 21 March 1985.           The article had as a first headline the words: "In the name of the Republic" ("Im Namen der Republik").   There followed in small print the first sentences of the decision of the Regional Court of 21 March 1985 according to which the two previous newspaper articles amounted to slander within the meaning of S.111 of the Austrian Criminal Code.   In big letters the article then printed the headlines of the articles which constituted slander, namely "Good advice was expensive: Pensioner lost property" ("Guter Rat war teuer: Rentner verlor Besitz") and "Judge waited: But (the applicant) 'won't come'" ("Richter wartete: Doch [der Beschwerdeführer] 'kummt net'"), as well as the contested passages thereof.   Finally the article also reproduced from the decision of the Regional Court of 21 March 1985 the damages awarded to the applicant, though here the article substituted the amounts fixed by the Court of Appeal on 19 August 1985 for those fixed by the Regional Court.           In a separate comment on the same page the newspaper stated that upon appeal the Court of Appeal had reduced the damages from twice 35'000.-AS to 8'000.- and 5'000.-AS, respectively, and that at the public pronouncement of the judgment the presiding judge of the Court of Appeal had mentioned as a ground for the loss of the applicant's esteem his "extremely unsound conduct" ("äusserst unseriöses Verhalten").   III.           The applicant thereupon demanded damages from the newspaper publisher.   He relied on S.6 of the Media Act (Mediengesetz) according to which such damages must be paid if the criminal offence of slander has been committed.   The applicant submitted in particular that on 24 August 1985 the article in the "Neue Kronenzeitung" had mixed the decisions of the first and second instance courts, that the parts which concerned the applicant had been printed in heavier type, and that he had neither applied for, nor approved, publication of the previous judgments.           On 18 December 1985 the Review Chamber (Ratskammer) of the Vienna Regional Court terminated the proceedings (Einstellung), in non-public proceedings, on the ground that the facts at issue did not constitute a criminal offence.   The Review Chamber found that the newspaper publisher was free to publish at his own expense the respective decision since the proceedings could also be reported by publishing the judgment.   It did not amount to slander within the meaning of S.111 of the Criminal Code, if decisions of two courts had been mixed or if certain parts of the article had been printed in heavy type, since the reader would read the whole article. Finally, the Review Chamber found that the newspaper's further comment corresponded to the decision of the Court of Appeal of 19 August 1985 in which it had referred to the applicant's "unsound conduct".           Against the decision of the Review Chamber of 18 December 1985 the applicant filed an appeal (Beschwerde) with the Vienna Court of Appeal, in which he alleged that the newspaper articles of 24 August 1985 amounted to slander.           On 29 January 1986 the Court of Appeal dismissed, in non-public proceedings, the applicant's appeal.   The Court found that the article was clear for the average reader who would be in a position correctly to inform himself also of its procedural content.   IV.           S.8 para. 3 of the Media Act provides that, if an applicant demands damages according to S.6 on the ground of slander, he will have the rights of a private prosecutor (Privatankläger) and the provisions concerning private prosecutors in criminal proceedings will apply accordingly.           The Code of Criminal Procedure (Strafprozessordnung) states in S.483 that such proceedings are instituted in writing.   According to S.486 para. 3 in combination with S.485 para. 1(4), the Review Chamber will terminate the proceedings in particular if the act at issue does not constitute a criminal offence falling within the jurisdiction of the courts.   S.486 para. 4 stipulates in this case for the prosecutor the possibility of an appeal to the court of second instance.   If there are no objections to the application of the prosecutor, S.487 requires the order of the trial (Hauptverhandlung).   According to S.228 the trial is held in public.   As regards the publicity of the Review Chamber proceedings before the trial, S.113 states:   <Translation>              "(1) Whosoever claims during the preliminary enquiries, the         preliminary investigations or in the proceedings following the         indictment, to be a victim by means of an order or a delay of         the investigating judge, has the right in this respect to         request the decision of the Review Chamber and to make the         request either orally or in writing before the investigating         judge or directly before the Review Chamber...               (2) The Review Chamber decides in a non-public session after         hearing the investigating judge and the Public Prosecutor."   <Original>              "(1) Alle, die sich während der Vorerhebungen, der Vorunter-         suchung oder in dem der Einbringung der Anklageschrift nachfol-         genden Verfahren durch eine Verfügung oder Verzögerung des Unter-         suchungsrichters beschwert erachten, haben das Recht, darüber eine         Entscheidung der Ratskammer zu verlangen und ihr Begehren entweder         schriftlich oder mündlich beim Untersuchungsrichter oder unmittel-         bar bei der Ratskammer anzubringen...               (2) Die Ratskammer entscheidet in nichtöffentlicher Sitzung         nach Anhörung des Untersuchungsrichters und des Staatsanwaltes."           If the Review Chamber in its decision decided to terminate the preliminary investigations, S.114 para.2 of the Code of Criminal Procedure provides as a further remedy an appeal (Beschwerde) to the court of second instance.   According to S.114 para. 2 the court in second instance will thereby decide in a non-public session.     COMPLAINTS           The applicant complains under Article 6 of the Convention that neither the Review Chamber nor the Court of Appeal conducted the proceedings publicly.           Under Article 6 the applicant further complains that the Review Chamber and the Court of Appeal both assumed that a court decision had been properly published whereas in fact it had not.   In the applicant's submissions, Article 6 contains the right that court proceedings are properly treated by the media.     THE LAW   1.       The applicant has complained that neither the Review Chamber nor the Court of Appeal conducted the court proceedings publicly.           Article 6 para. 1 (Art. 6-1) of the Convention states, insofar as it is relevant to the present application:              "In the determination of his civil rights and obligations         or of any criminal charge against him, everyone is entitled to         a fair and public hearing within a reasonable time by an independent         and impartial tribunal established by law."           However, the Commission recalls that Austria ratified the Convention subject to the reservation that "the provision of Article 6 (Art. 6) of the Convention shall be so applied that there shall be no prejudice to the principles governing public court hearings laid down in Article 90 of the 1929 version of the Federal Constitutional Law". Article 90 states:           "Hearings in civil and criminal cases by the trial court shall         be oral and public.   Exceptions may be prescribed by law."           The Commission notes that, if an applicant demands damages according to S.6 of the Media Act on the ground of slander, the provisions concerning private prosecutors in criminal proceedings apply accordingly.   In the present case the first instance proceedings at issue were terminated by the Review Chamber during the phase of the preliminary investigations, i.e. before the trial was ordered.   In this respect the Commission notes the formulation of S.228 of the   Code of Criminal Procedure according to which the trial shall be held in public, thus in principle not ensuring publicity in other proceedings (see e.g.   No. 460/59, Dec. 7.7.59, Collection 1). Moreover, S.113 para. 2 confirms the generally non-public nature of proceedings before the Review Chamber if the latter is handing down a decision during the preliminary investigations concerning inter alia the order of the investigating judge.   Finally, S.114 para. 2 states that the court in second instance will decide in a non-public session on complaints against decisions of the Review Chamber to terminate such proceedings.           In the Commission's view these provisions indicate sufficiently the non-public nature of the proceedings concerning the applicant before the Review Chamber and, on appeal, before the Court of Appeal.           Consequently, the Austrian reservation concerning Article 6 (Art. 6) is applicable in respect of the applicant's complaint at issue.   It follows that this part of the application is incompatible ratione personae with the Convention's provisions and must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant further complains under Article 6 (Art. 6) of the Convention that the Review Chamber and the Court of Appeal both assumed that a court decision had been properly published whereas in fact it had not.   In the applicant's submissions Article 6 (Art. 6) contains the right that court proceedings are properly treated by the media.           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 to the proceedings before the Review Chamber and the Court of Appeal in the present case (see e.g.   No. 8366/78, Dec. 8.3.79, DR 16 p.196).   On the other hand, Article 6 para. 1 (Art. 6-1) does not concern the manner in which judidial decisions are handled by newspapers and other media.           With regard to the judicial decisions 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).           The Commission has nevertheless examined the applicant's complaints under Article 6 para. 1 (Art. 6-1) of the Convention.   However, it finds no indication that the applicant could not present his case properly or that the proceedings were otherwise unfairly conducted.           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.   The application is therefore 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)