CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 janvier 1994

.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. 18763/91                       by Michael BEER                       against Austria         The European Commission of Human Rights sitting in private on 12 January 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber,         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 28 June 1991 by Michael BEER against Austria and registered on 4 September 1991 under file No. 18763/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to :   -      the Commission's decision of 14 October 1992 to communicate the       application;   -      the Commission's decision of 16 February 1993 to grant the       Government's request for extension of the time-limit to submit       their observations, pending proceedings relating to a plea of       nullity for the preservation of the law before the Austrian       Supreme Court;   -      the Government's submissions of 16 July 1993 according to which       the plea of nullity had been successful;   -      the applicant's submissions of 2 November 1993.         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as they have been submitted by the parties, may be summarised as follows.         The applicant, born in 1946, is an Austrian national and now resident at Wewak, Papua New Guinea.   He is a teacher by profession. Before the Commission, he is represented by Mr. G. Mory, a lawyer practising in Salzburg.         In January 1987 the applicant, at the time in question town councillor in Zell am See, published an article in the periodical of a local citizens' action group ("BLIZ") about criminal proceedings before the Salzburg Regional Court.   Those proceedings concerned charges of fraudulent conversion to the detriment of the Zell am See Tourist Organisation F., which participated in the proceedings as private party, represented by Mr. R., a lawyer practising in Salzburg. One hearing had been attended by a trainee lawyer working with Mr. R.         The applicant's article contained the following passage (translation):         "At the hearing, the remarkable restraint exercised by the       private party [F.] was also noticed.   [F.] should have been very       keen to get back almost one million of embezzled tax money.       Mrs. N.N., trainee lawyer in the law office of Mr. [R.], did not       give this impression at all.   "Bliz" will direct its particular       attention to this circumstance!   Why did [F.] send a beginner in       the law to take care of such a difficult case?"         On 19 January 1990 the Salzburg Regional Court, in the context of private prosecution proceedings brought by Mr. R. on charges of defamation and attack on his financial reliability, acquitted the applicant.         On 2 April 1990 the Linz Court of Appeal (Oberlandesgericht), upon Mr. R.'s appeal (Berufung), quashed the acquittal and sent the case back to the Regional Court.   The Court of Appeal found that the critical average reader could have got the impression that Mr. R. had negligently contravened his obligations as a lawyer.         On 17 September 1990 the Salzburg Regional Court again acquitted the applicant.         On 28 February 1991 the Linz Court of Appeal, upon Mr. R.'s appeal, partly quashed the judgment of 17 September 1990, and convicted the applicant of defamation under S. 111 of the Austrian Penal Code (Strafgesetzbuch), and sentenced him to 50 daily rates of AS 400.   The acquittal concerning an attack on Mr. R.'s financial reliability was confirmed.   The Court of Appeal found that the applicant, in his article, had intended to show that Mr. R. had incorrectly chosen a trainee lawyer and thereby negligently represented the interests of the private party F.   He had thereby accused Mr. R. of behaviour contrary to the proper professional conduct of such a nature as to lower him in public esteem.         On 18 May 1993 the Austrian Supreme Court (Oberster Gerichtshof), upon a plea of nullity for the preservation of the law (Nichtigkeits- beschwerde zur Wahrung des Gesetzes), declared that the judgment of the Linz Court of Appeal of 28 February 1991, to the extent that the applicant was convicted of defamation, was unlawful.   The Supreme Court quashed the judgment concerned and acquitted the applicant.   The costs of the proceedings were awarded against the Private Prosecutor.   The Supreme Court considered in particular that, having regard to Article 10 of the Convention, the incriminated statements made by the applicant could not be regarded as defamation within the meaning of S. 111 para. 1 of the Penal Code.   COMPLAINTS         The applicant complains that his conviction by the Linz Court of Appeal on 28 February 1991 violates his right to freedom of expression as guaranteed under Article 10 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 28 June 1991 and registered on 4 September 1991.         On 14 October 1992 the Commission decided to communicate the application to the respondent Government.         On 16 February 1993 the Commission decided to grant the Government's request for an extension of the time-limit to submit their observations, pending proceedings relating to a plea of nullity for the preservation of the law before the Austrian Supreme Court.         By letter of 16 July 1993 the Government informed the Commission about the above judgment taken by the Supreme Court on 18 May 1993. The applicant made further submissions on 2 November 1993.   THE LAW         The applicant's complaint under Article 10 (Art. 10) of the Convention relates to his conviction by the Linz Court of Appeal on 28 February 1991.         The Commission notes that on 18 May 1993 the Austrian Supreme Court, in proceedings concerning a plea of nullity for the preservation of the law, quashed this conviction and acquitted the applicant on the ground that, having regard to Article 10 (Art. 10) of the Convention, the incriminated statements made by him could not be regarded as defamation within the meaning of S. 111 para. 1 of the Penal Code.         In these circumstances, the Commission finds that the applicant is no longer a victim of the alleged violation of Article 10 (Art. 10) of the Convention.   His complaint is, therefore, manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber         (M.F. BUQUICCHIO)                       (A. WEITZEL)