CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 avril 1997

.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 }                        Application No. 24500/94                       by Raimund PLAUTZ                       against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 10 April 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              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 25 May 1994 by Raimund PLAUTZ against Austria and registered on 29 June 1994 under file No. 24500/94;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the information submitted by the respondent Government on 4 and 16 December 1996 and the comments submitted by the applicant on 29 January 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen, born in 1963 and residing in Klagenfurt.   Before the Commission he is represented by Mr. G. Fink and Mr. P. Bernhart, lawyers practising in Klagenfurt.        The facts of the case, as submitted by the parties, may be summarised as follows.        The applicant is a butcher and member of the Carinthian Butchers Association, a registered co-operative with limited responsibility (Kärntner Fleischverband, registrierte Genossenschaft mit beschränkter Haftung).   At the time of the following events he was member of the co-operative's Supervisory Board (Aufsichtsrat) and appointed by the Board as cash auditor (Kassenprüfer).        On 6 May 1993, an employee of the Association A.G. brought a private prosecution against the applicant for defamation (üble Nachrede) with the Klagenfurt District Court (Bezirksgericht).   He submitted that on 29 March 1993 the applicant had carried out a cash audit.   When signing of the record of the cash audit the next day, the applicant had made the statement: "this is theft" ("das ist Diebstahl") with reference to A.G. The applicant thus had accused him of a criminal offence, which however, was untrue and constituted defamation.   A.G. requested that A.W., G.H., A.K., A.S be heard as witnesses.        On 16 June 1993 the applicant, represented by counsel, commented on the private prosecution.   He admitted that he had made the incriminated statement but claimed that he had been justified in doing so under Section 111 para. 3 and 114 of the Penal Code.   In the course of the cash audit he had discovered that the book-keeping of A.G. was incorrect and incomplete, in particular that no proper cash-book (Kassabuch) existed.   The applicant requested the court to hear J.S. and A.W. as witnesses and to obtain the opinion of an expert on book-keeping.        On 12 July 1993 the District Court held a hearing, in which it heard the parties.   The Court decided to adjourn the hearing in order to hear the witnesses requested by the parties and to obtain the opinion of an expert on book-keeping.        On 10 August 1993 the court-appointed expert submitted his report.   He found that the book-keeping had not been correct, which had caused financial damage to the Association.        On 21 September 1993 a further court hearing took place. The District Court heard A.W., G.H., A.K. and A.S. as witnesses. The parties did not request the taking of further evidence.        On 21 September 1993 the Klagenfurt District Court acquitted the applicant of the charge of defamation.        The District Court found that A.G. had, at the relevant time, been in charge of the department of the Association dealing with skins of slaughtered animals.   The workers in this department had the task of preparing the skins before sending them to a tannery.   For this purpose meat rests were removed and suet scratched off.   It had been a long-standing practice that the meat was sold to third persons as dog food and the suet scratched off sold back to the Association.   The benefits so drawn had been distributed among the workers as an incentive to properly carry out this difficult and tiresome work.   The applicant had been familiar with this practice insofar as it concerned the selling of the meat, although he had repeatedly opposed it, but not as regards the selling back of the suet to the Association. Only in the course of the cash audit had he found out about this practice.   The District Court concluded that the applicant had made the incriminated statement in the fulfilment of a legal duty, namely in his position as cash auditor, and it was therefore justified under Section 114 para. 1 of the Penal Code.        The District Court based its findings mainly on the statements of the applicant, who had stated that until the time of the cash audit he had been unfamiliar with the practice of selling the suet to the Association.   It found this statement credible.   On the other hand, the District Court found the statements of A.S., the general manager (Obmann) of the Association, and A.K., who had said that they had informed the applicant earlier about this practice, implausible.   With regard to the statement of A.K., according to which he had informed the applicant on the day before the latter had made the incriminated statement on the practice of selling suet, the District Court found that this had been impossible because the day before the cash audit had been a Sunday.        On 2 December 1993 A.G. appealed against the District Court's judgment.        On 11 January 1994 the Klagenfurt Regional Court (Landesgericht) held a court hearing in the appeal proceedings. The Court decided to repeat the taking of evidence.        On 25 January 1994 the Regional Court held a further hearing. The Court heard the parties and also A.W, G.H. A.K. and A.S. as witnesses.   At the end of the hearing the applicant requested that also R.R. and K.I. should also be heard as witnesses, in order to prove that the selling of suet to the Association had not been a long-standing practice and that the management and Supervisory Board had not been aware of this practice.   Upon a question by the Presiding Judge the applicant specified that R.R. was a member of the management (Vorstand) and deputy director of the Supervisory Board, while K.I. had been a member of the Supervisory Board since November 1993.   This request was refused by the Regional Court.        On the same day the Regional Court granted A.G.'s appeal, quashed the District Court's judgment and convicted the applicant of defamation (üble Nachrede) under Section 111 para. 1 of the Penal Code (Strafgesetzbuch).   It sentenced the applicant to a fine of 40 daily rates (Tagessätze) of 250 AS each or 20 days of imprisonment in default.   This judgment was served on the applicant on 31 March 1994.        The Regional Court found, inter alia, that the applicant had been familiar with the practice of selling suet back to the Association before he had accused A.G. of theft.   He had been informed by A.S. about this practice and again by A.K. on 29 March 1993.   Therefore, the applicant had made his defamatory statement knowing it to be untrue (wider besseres Wissen).        As regards the assessment of evidence, the Regional Court found the statements of A.S. and A.K. were plausible.   As regards the District court's arguments on the implausibility of A.K.'s statement, the Regional Court noted that a mistake must have occurred since the 29 March 1993 had been a Monday.   As regards the statements of A.S., the Regional Court noted that this witness had stated not only in the present proceedings but also in Labour Court proceedings that he had informed the applicant in 1991 about the practice of selling meat rests and suet.   Therefore it had not been necessary to hear also the witnesses requested by the applicant.   A.S., who had been the general manager of the Association, had stated in a plausible way that the Supervisory Board had been informed of this practice and the applicant himself had admitted that he had been informed by A.G. before the signing of the cash audit record on 30 March 1993.        On 18 May 1994 the applicant asked the Procurator General (Generalprokurator) to introduce a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) in his case.   He submitted that the Regional Court should have applied Section 114 para. 1 of the Penal Code as he had been justified in making the incriminated statement.   He also submitted that the Regional Court had disregarded the expert opinion and had refused to take the evidence he had requested without sufficiently motivating its refusal.        On 27 June 1994 the Procurator General introduced a plea of nullity for the preservation of the law with the Supreme Court (Oberster Gerichtshof).   The Procurator General submitted that the applicant had had the duty to carry out a cash audit.   He had criticised a practice which, in his view, had been dubious and could have caused damage to the Association.   In such circumstances his statement had been justified under Section 114 para. 1 of the Penal Code as he had to inform the persons concerned about his observations and the statement he had made did not appear disproportionate.   It was irrelevant whether or not the applicant had had previous knowledge of the criticised practice of selling suet or not.        On 10 August 1994 the Supreme Court dismissed the plea of nullity.   The Supreme Court found that it could in principle agree with the legal arguments of the Procurator General.   However, they had to be applied in the context of the particular circumstances of the case. On the basis of the facts established by the Regional Court, the applicant had made his defamatory statement knowing it to be untrue. Thus, he could not rely on the ground of justification provided for by Section 114 para. 1 of the Penal Code.        On 6 November 1996 the Supreme Court, upon a further plea of nullity for the preservation of the law lodged by the Procurator General, quashed the Regional Court's judgment of 25 January 1994 and ordered that a new hearing be held on the applicant's appeal.   The Supreme Court found that the Regional Court's judgment violated Article 6 paras. 1 and 3 of the Convention because in the appeal proceedings the Regional Court had refused to hear witnesses requested by the applicant.        On 8 January 1997 the Regional Court acquitted the applicant.   COMPLAINTS        The applicant complains under Article 6 of the Convention that the criminal proceedings conducted against him were unfair.   He submits that the Regional Courts refused to hear the witnesses he had requested without giving any valid reasons.   It further disregarded the expert opinion.   Furthermore, the Regional Court incorrectly applied Section 114 para. 1 of the Penal Code.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 25 May 1994 and registered on 29 June 1994.        On 15 May 1996 the Commission decided to communicate the application to the respondent Government.          On 17 July 1996 the Government requested an extension of the time-limit for submitting its observations and informed the Commission the Procurator General had introduced a plea of nullity for the preservation of the law with the Supreme Court in the applicant's case. On 4 December 1996 the Government informed the Commission that the Supreme Court had quashed the Regional Court's judgment and on 16 December 1996 it submitted a copy of the Supreme Court's decision of 6 November 1996.        On 29 January 1997 the applicant informed the Commission that meanwhile, on 7 January 1997, the Regional Court had acquitted him. He therefore considered the matter resolved and did not wish to pursue his application.   THE LAW        The Commission notes that following his acquittal by the Regional Court on 8 January 1997 the applicant does not wish to pursue his application.        In these circumstances the Commission finds pusuant to Article 30 para. 1 (a) (Art. 30-1-a) of the Convention that it is not justified to continue the examination of the present application.   Moreover, the Commission finds no reason of a general character affecting respect for Human Rights, as defined in the Convention, which require the further examination of the application by virtue of Article 30 para. 1 (Art. 30-1) in fine of the Convention.          For these reasons, the Commission, unanimously,          DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber