CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 octobre 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 }                          AS TO THE ADMISSIBILITY OF                           Application No. 26113/95                       by WIRTSCHAFTS-TREND Zeitschriften-                       Verlagsgesellschaft m.b.H.                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 23 October 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. CONFORTI                  N. BRATZA                  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 20 December 1994 by WIRTSCHAFTS-TREND Zeitschriften-Verlagsgesellschaft m.b.H. against Austria and registered on 4 January 1995 under file No. 26113/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      4 November 1996 and the observations in reply submitted by the      applicant on 17 February 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a company with seat in Vienna. It is the owner and publisher of "profil", a periodical dealing mostly with politics. In the proceedings before the Commission, the applicant company is represented by Mr. H. Simon, a lawyer practising in Vienna.   A.    The particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows.        On 27 July 1992 an article, relating to a forthcoming conference on refugees from former Yugoslavia, was published in "profil". It was co-authored by four journalists and started with the following passage:        <German>        "Das neue Gesetz kam gerade recht. Das Bundesasylamt kann seit 1. Juni Asylwerber im Eilverfahren abblitzen lassen. Die österreichischen Behörden machen davon reichlich Gebrauch, hinterhältiger und menschenverachtender denn je."        <Translation>        "The new law came just in time. Since 1 June the Federal Office for Asylum can turn down asylum seekers in summary proceedings. The Austrian authorities make ample use of this possibility, more insidiously and cynically than ever."        This introduction was followed by the examples of two Bosnians, whose requests for asylum, which were based on the general situation in their country of origin, had been rejected under provisions of the new law. The first had got a negative decision within three days, the second had obtained a standard letter of the Federal Office of Asylum referring to provisions of the new Asylum Act, according to which an asylum seeker may be refused entry on the ground that he comes from a country in which there is in general no danger of persecution. The article called this, if applied to Bosnians, an incredibly cynical case-law. It observed that the asylum authorities argue in all such cases that a state of civil war does not constitute individual persecution and that the granting of asylum under the Geneva Convention on the Status of Refugees is therefore not justified. The article then stated that the United Nations High Commissioner for Refugees, at the upcoming Geneva summit, was planning to persuade States that refugees from former Yugoslavia have to be treated as refugees under the Convention. Then it turned to the failure of diplomatic initiatives to establish refugee quotas, and the fact that most European countries required Bosnians to obtain a visa. It finally examined the situation in Austria, describing how many Bosnians had already been received and how many could still be accommodated.        On 16 February 1993 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) discontinued proceedings for defamation against the four authors of the article at issue, which had been opened upon the criminal information (Anzeige) of the Federal Office for Asylum and the Federal Ministry for the Interior. It found that it could not be established who had written the incriminated passage.        On 9 March 1993, the Vienna Public Prosecutor's Office (Staatsanwaltschaft), referring to S. 34 para. 3 of the Media Act, made a request to the Vienna Regional Criminal Court for publication of a judgment (Urteilsveröffentlichung), according to which the passage quoted above accused the competent asylum authorities of behaviour of such a nature as to make them contemptible, thereby fulfilling the definition (objektiver Tatbestand) of defamation of an authority within the meaning of S. 111 paras. 1 and 2 in conjunction with S. 116 of the Criminal Code (Strafgesetzbuch).        On 1 July 1993, the Vienna Regional Criminal Court held a hearing to which the applicant company was summoned as the adverse party (Antragsgegner). The applicant company offered to prove that the impugned statement was true and requested that Mr. P., a lawyer, as well as Mr. B., his trainee, be heard. The court dismissed this request. In these and the following proceedings the applicant company was represented by counsel.        Following the hearing the Vienna Regional Criminal Court dismissed the Public Prosecutor's request. It found that the incriminated text fulfilled the definition of defamation. In particular the allegation that the authorities acted "more insidiously and cynically than ever" meant for every sensible reader that the said authorities lacked objectivity, disregarded humanitarian principles and violated human rights. It went far beyond a mere criticism of the authorities and amounted to the accusation, not only of contemptible attitudes, but also of behaviour contrary to honour or morality suited to make the authorities at issue contemptible or to lower them in public esteem. However, the court held that the request for publication of a judgment could not be granted separately. It required that a judgment had actually been given, which could either be a conviction of a specific person under S. 34 para. 1   of the Media Act or a confiscation under S. 33 para. 2 of the said Act. As no judgment had been given in the present case, the Public Prosecutor's request had to be dismissed. Thus, it was not necessary to deal with the applicant company's request for the taking of evidence.        On 2 May 1994, the Vienna Court of Appeal, upon the appeal on points of law (Berufung wegen Nichtigkeit) of the Public Prosecutor's Office, held a hearing in presence of the applicant company's counsel and the Senior Public Prosecutor. The latter referred to the written submissions by the prosecution. Counsel for the applicant company contested them.        Following the hearing the Vienna Court of Appeal gave its judgment ordering the applicant company to publish a judgment with the following wording:   <German>        "Das Oberlandesgericht Wien hat in der Medienrechtssache gegen die Antragsgegnerin Wirtschafts-Trend Zeitschriftenverlags GesmbH über Antrag der Staatsanwaltschaft Wien in der Berufungsverhandlung vom 2. Mai 1994 zu Recht erkannt: In dem in der Ausgabe des periodischen Druckwerkes "Profil", Ausgabe Nr. 31 vom 27.7.1992 auf Seite 10 im Rahmen eines hauptsächlich mit "Der Krieg im Konferenzsaal" überschriebenen, von Andy Kaltenbrunner, Eva Menasse, Andreas Weber und Christa Zöchl gemeinschaftlich gezeichneten Artikels wurde durch die abgedruckte Textstelle "Das Bundesasylamt kann seit 1. Juni Asylwerber im Eilverfahren abblitzen lassen. Die österreichischen Behörden machen davon reichlich Gebrauch, hinterhältiger und menschenverachtender denn je" sowohl das Bundesministerium für Inneres als auch das Bundesasylamt jeweils als Behörden in einem Druckwerk verächtlicher Gesinnungen geziehen, wodurch der objektive Tatbestand des Vergehens der öffentlichen Beleidigung ... einer Behörde nach den §§ 111 Abs 1 und 2, 116 StGB hergestellt wurde, wobei Andy Kaltenbrunner, Eva Menasse, Andreas Weber und Christa Zöchl nicht mit der erforderlichen Sicherheit als Artikelverfasser ausgeforscht werden konnten und daher deren Verfolgung nicht durchführbar ist."   <Translation>        "The Vienna Court of Appeal, at the appeal hearing of 2 May 1994 in the media case against Wirtschafts-Trend Zeitschriftenverlags GesmbH as an adverse party, upon the request of the Vienna Public Prosecutor's Office has held as follows: In the article published in "Profil", issue Nr. 31 of 27 July 1992 on page 10 under the main title "War in the conference room" and co-authored by Andy Kaltenbrunner, Eva Menasse, Andreas Weber and Christa Zöchl, the Federal Ministry for the Interior as well as the Federal Office for Asylum as authorities have been accused in a printed medium of contemptible attitudes by the passage "Since 1 June the Federal Office for Asylum can turn down asylum seekers in summary proceedings. The Austrian authorities make ample use of this possibility, more insidiously and cynically than ever." Thereby the definition of defamation of ... an authority under SS. 111 paras. 1 and 2 and 116 of the Criminal Code has been fulfilled, whereas neither Andy Kaltenbrunner, nor Eva Menasse, Andreas Weber and Christa Zöchl could be established with the necessary certainty as the author and could not therefore be prosecuted."        The Court of Appeal noted and confirmed in detail the findings of the Regional Court regarding the defamatory nature of the incriminated passage. However, the Regional Court had wrongly found that the formal requirements for publication of a judgment in separate proceedings under S. 34 para. 3 of the Media Act had not been met. Finally, the Court of Appeal ordered the applicant company to pay the costs of the proceedings.        The judgment was served on the applicant company on 28 June 1994.        On 11 July 1994 the applicant company published the above judgment in "profil".        On 23 September 1994 the Procurator General's Office (Generalprokuratur) lodged a plea of nullity for the observation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) with the Supreme Court (Oberster Gerichtshof). It submitted that the proceedings had not been in accordance with the law in several respects: inter alia, the applicant company had offered to prove the truth of its statements. However, the court of first instance had not taken such evidence as it had dismissed the Public Prosecutor's request for formal reasons. Although the incriminated text constituted a value-judgment which was not susceptible of being proved true the Vienna Court of Appeal should have taken the said evidence. It appeared, in the circumstances of the case, that the authors of the article had based their conclusion on two examples, which - if established - were capable of leading to the impunity of their admittedly harsh criticism or would have enabled the court to judge whether the criticism was excessive. That the text referring to the said examples had not been challenged did not mean that their correctness was undisputed.        On 10 November 1994 the Supreme Court dismissed the plea of nullity. It confirmed that the incriminated text contained a value- judgment, which was based on examples of refusals of asylum requests. In the present case, neither the authorities at issue nor the Public Prosecutor's Office had challenged the text referring to these examples. They were, thus, undisputed. The courts had to assume that the underlying facts were correct, when deciding whether the value- judgment, with regard to which proof of truth was inadmissible, was justified or excessive. The Vienna Court of Appeal had correctly found that this value-judgment went beyond the limits of permissible criticism of the asylum authorities.   B.    Relevant domestic law        Criminal Code        S. 111 of the Criminal Code (Strafgesetzbuch) deals with the offence of defamation (Üble Nachrede). It provides that anyone who accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine (paragraph 1). Anyone, who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamatory statement accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine (paragraph 2). The person making the statement shall not be punished if it is proved to be true.   As regards the offence defined in paragraph 1, he shall not be liable either, if circumstances are established which gave him sufficient reason to assume that the statement was true (paragraph 3).        S. 116 provides inter alia that offences under S. 111 are also punishable if they have been directed against an authority and have been committed publicly. S. 111 para. 3 also applies to such offences.        Media Act        S. 34 of the Media Act (Mediengesetz) deals with the publication of a judgment (Urteilsveröffentlichung). It states inter alia that a criminal judgment concerning a media offence has, upon request of the prosecution, to order the publication of those parts of the judgment which are necessary to inform the public about the offence and the conviction (paragraph 1). Upon request of the prosecution, the publication of a judgment has to be ordered in separate proceedings, if statements falling within the definition of an offence (objektiver Tatbestand) have been made in the media and the prosecution of a specific person is not possible. In a case where the offender would not be punishable if he adduced evidence to prove that his statements were true, such evidence can also be adduced by the owner of the medium in question (paragraph 3). The time-limit for publication of the judgment starts running when the final judgment has been served (paragraph 4).        According to S. 41 of the Media Act the provisions of the Code of Criminal Procedure (Strafprozeßordnung) apply to criminal proceedings as well as to separate proceedings under this Act, if not provided otherwise (paragraph 1). In these proceedings the owner of the medium is to be summoned to the trial. He has the rights of the accused, and in particular may put forward any arguments for the defence and may appeal against the judgment (paragraph 5).     COMPLAINTS        The applicant company complains under Article 10 of the Convention that the decision ordering it to publish a judgment stating that part of an article published by it was defamatory and the order to pay the costs of the proceedings violated its right to freedom of expression. The applicant company further complains under Article 6 of the Convention that it did not have a fair hearing, in that it was prevented from adducing evidence to prove the truth of its statements and, thus, could not show that the incriminated value-judgment was not excessive.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 20 December 1994 and registered on 4 January 1995.        On 26 June 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 4 November 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 17 February 1997,   also after an extension of the time-limit.     THE LAW   1.    The applicant company complains under Article 10 (Art. 10) of the Convention that the decision by the Vienna Court of Appeal of 2 May 1994 ordering it to publish a judgment stating that part of an article published by it was defamatory and the order to pay the costs of the proceedings violated its right to freedom of expression. It also complains under Article 6 (Art. 6) of the Convention that the proceedings were unfair in that it could not adduce evidence to show that the incriminated value-judgment was not excessive.        Article 10 (Art. 10), so far as relevant, reads as follows:        "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 and regardless of frontiers. ...        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."        Article 6 para. 1 (Art. 6-1), so far as relevant, reads as follows:        "In the determination of his civil rights and obligations or of      any criminal charge against him, everyone is entitled to a fair      ... hearing ... "          Preliminary questions under Articles 25 and 26 (Art. 25, 26) of      the Convention   a.    The Government submit that the applicant company failed to introduce its complaint within the six months time-limit laid down in Article 26 (Art. 26) of the Convention. They argue that, in the circumstances of the case, the time-limit should start running at the date of the oral pronouncement of the final decision, i.e. the judgment of the Vienna Court of Appeal of 2 May 1994. The Government point out in particular that the applicant company was represented by counsel at the appeal hearing and that the Court of Appeal pronounced all the reasons of its judgment using almost the same wording as in the written text served later. Further, they refer to S. 77 of the Code of Criminal Procedure, according to which judicial decisions are made public either by being read out in court or by service of the original or a certified copy thereof, whereby the person to whom a decision has been read out, has to be served a copy upon request. The Government argue that, thus, domestic law did not require the service of a written copy of the judgment.        The applicant company contests the Government's view. It argues that the six months period should in general start running with the service of the written version of the final decision. Moreover, it refers to S. 34 para. 4 of the Media Act which provides that the time- limit for publication of the judgment starts as soon as the judgment has become final and has been served. The reference to S. 77 of the Code of Criminal Procedure is misleading as specific rules apply to judgments. According to S. 270 of the Code of Criminal Procedure, any judgment has to be set out in writing and only the written version has to contain all the reasons while the oral pronouncement may be limited to the most relevant reasons.        The Commission recalls that a similar question has recently been raised in the case of Worm v. Austria. The Commission found that when, in accordance with domestic law, the written text of the final decision has to be served on the applicant, or in case of legal assistance, upon his counsel, the period of six months should be counted from the date of this service, irrespective of whether the judgment concerned, or part thereof, was previously pronounced orally (No. 22714/93, Dec. 27.11.95, D.R. 83, p. 17 at p. 24). The Court, having regard to the circumstances of the case, shared the Commission's view that the object and purpose of Article 26 (Art. 26) are best served by counting the six-month period as running from the date of service of the written judgment (Eur. Court HR, Worm v. Austria judgment of 29 August 1997, Reports 1997-V, No. 45, para. 33). The Commission sees no features which would distinguish the present case from the Worm case. Having regard in particular to S. 34 para. 4 of the Media Act, the Commission finds it established that the applicant company was entitled to be served ex officio a written copy of the Court of Appeal's judgment. The responsibility for the delay for the service lies with the judicial authorities. Moreover, the final version of the judgment contained detailed legal reasoning.        Even assuming that the six months period was not interrupted by the proceedings before the Supreme Court, the Commission notes that the judgment of the Vienna Court of Appeal of 2 May 1994 was served on the applicant company on 28 June 1994. The application was introduced on 20 December 1994, i.e. less than six months later.        It follows that the applicant company complied with the six months time-limit laid down in Article 26 (Art. 26) of the Convention.   b.    The Government submit that the applicant company has failed to exhaust domestic remedies in accordance with Article 26 (Art. 26) of the Convention with regard to both its complaints under Article 10 (Art. 10) as well as under Article 6 of the Convention.        The Government argue that the applicant company has not contested the finding of the Vienna Regional Criminal Court's judgment of 1 July 1993 that the incriminated text fulfilled the definition of defamation and has - not even in substance - alleged a breach of its right to freedom of information either in its reply to the Public Prosecutor's appeal against the above judgment or at the appeal hearing before the Vienna Court of Appeal. Nor has it, in its reply to the Public Prosecutor's appeal or at the appeal hearing, requested that witnesses be heard to prove that there were facts on which the value- judgment at issue could be based.        The applicant company contests the Governments view. It submits that it requested before the Vienna Regional Criminal Court that a lawyer, Mr. P. and his trainee Mr. B. be heard. The Regional Court, albeit on formal grounds, refused the Public Prosecutor's request for publication of a judgment. The scope of the appeal proceedings was limited to points of law raised in the Public Prosecutor's appeal. It could therefore not offer any evidence before the Vienna Court of Appeal. In these circumstance, the applicant company claims that the Vienna Court of Appeal would have been obliged to take the necessary evidence of its own motion. However, the Vienna Court of Appeal, without doing so, granted the request for publication of a judgment, and, thus, violated its right to freedom of expression and its right to a fair hearing. However, no further appeal lay against that court's judgment.        The Commission recalls that under Article 26 (Art. 26) of the Convention it may only deal with an application after all domestic remedies have been exhausted.        As to the complaint under Article 10 (Art. 10) of the Convention, the Commission finds the applicant company's arguments convincing. It notes, in particular, that the applicant company appeared as the adverse party in proceedings under the Media Act, relating to the Public Prosecutor's request for publication of a judgment. Given that the Vienna Regional Court dismissed this request, the applicant company was not required, in the appeal proceedings brought upon the Public Prosecutor's appeal on points of law, to argue that its right to freedom of expression would be violated in case the Court of Appeal should grant the said request. Moreover, the nature of the proceedings was such that the applicant company was not required to plead a potential violation of its right to freedom of expression which was in any event at the very heart of the case.        As to the complaint under Article 6 (Art. 6) of the Convention, the Commission notes that, in the present case, the Procurator General's Office lodged a plea of nullity for the observation of the law against the judgment of the Vienna Court of Appeal. It found that the proceedings had not been in accordance with the law, inter alia, as the Court of Appeal had failed to take the evidence offered (at first instance) by the applicant company. The Supreme Court dismissed the plea finding that the examples on which the incriminated value- judgment had been based had remained undisputed and the courts, therefore, had to assume that they were true when assessing whether the said value-judgment was excessive or not. However, it appears that there was no prior case-law on this question. In the particular circumstances, the Commission considers that the applicant company could not be expected to repeat its evidentiary motion in the appeal proceedings.        In conclusion the Commission finds that the applicant company has exhausted domestic remedies in accordance with Article 26 (Art. 26) of the Convention.   c.    Finally, the Government doubt whether the applicant company can claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention as regards the alleged breach of its rights under Article 10 (Art. 10). They consider that only an individual can hold opinions and that a legal person cannot, therefore, allege a violation of its right to freedom of expression. The applicant company contests the Government's view.        The Commission sees no reason to doubt that the applicant company can claim to be a victim of its right to freedom of expression (see for instance Eur. Court HR, Sunday Times v. the United Kingdom judgment (No. 2) of 26 November 1991, Series A no. 216, p. 28, para. 49; Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 217, p. 27, para. 49).        As to Article 10 and Article 6 (Art. 10, 6) of the Convention        As to Article 10 (Art. 10) of the Convention, the Government submit that the interference with the applicant company's right to freedom of expression was justified under paragraph 2 of this provision. In particular they submit that the interference complained of was "necessary". The Government argue that the incriminated remark "the asylum authorities acted more insidiously and cynically than ever" contained a value-judgment which was, however, not based on any proven facts. Given the seriousness of the allegations raised by such comment, the applicant company would have been obliged to carry out particularly detailed and careful research. Even if one accepted that the article was meant to contribute to a political debate, the incriminated passage just contained a grossly insulting remark, being mainly directed against the staff of the asylum authorities and insinuating that they disregarded the law and refused asylum seekers out of personal malignity. Further, the Government submit that unlike politicians, in respect of whom the limits of acceptable criticism may be wider, the staff members of administrative authorities have to be protected as any other private person. Moreover, the authorities as such have to be protected against unfounded insult in order to maintain the confidence of the population which they need to discharge their functions.        As to Article 6 (Art. 6), the Government consider that the proceedings under S. 34 para. 3 of the Media Act relating to the publication of a judgment concerned the applicant company's civil rights and obligations as a publisher. As to the merits, the Government referring to their above submissions relating to the exhaustion of domestic remedies, find that the applicant company failed to make use of its procedural rights.        The applicant company maintains that the interference with its right to freedom of expression was not necessary. It points out in particular that the facts given in the article enabled the reader to decide whether the value-judgment contained in the incriminated passage was excessive or not. Further, the limits of acceptable criticism must be wider not only as regards politicians but also as regards the administrative authorities. The applicant company refutes the Government's argument that the allegations were directed against the staff members of the asylum authorities as private individuals. In this context they point out that the proceedings were not started by any staff member but by the authorities as such. Moreover, the applicant company submits that there was a need for strongly worded criticism as the intention of the article was to mobilise public opinion against a newly adopted restrictive asylum policy. In the situation pertaining at the time, it was not exaggerated to call the asylum authorities' practise of finding that moslems did not have to fear persecution in Bosnia insidious and cynical.        The applicant company further submit, that the proceedings under S. 34 para. 3 of the Media Act are criminal in nature, as the order for publication of a judgment presupposes a breach of the Criminal Code. As to the merits, the applicant company refer to the arguments put forward by the Procurator General's Office in its plea of nullity for the observation of the law.        The Commission considers, in the light of the parties' submissions, that the case raises complex questions of law and of fact under the Convention, the determination of which should depend on an examination of the merits. The Commission concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.           M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber