CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 22 juin 2004

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Strážnická ,   Mr   J. Casadevall ,   Mr   R. Maruste ,   Mrs   E. Steiner ,   Mr   L. Garlicki ,   Mrs   E. Fura-Sandström, judges , and   Mr   M. O’Boyle , Section Registrar , Having regard to the above application lodged on 8 May 2000, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant company, Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft mbH, a limited liability company with its seat in Vienna, is the owner and publisher of the weekly magazine Profil. It is represented before the Court by Giger, Ruggenthaler & Simon, lawyers practising in Perchtoldsdorf/Austria.   A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. In November 1998 the weekly magazine Profil published an article with the heading “Antifa-Terror!” and subtitled “A political book. Member of the European Parliament for the Freedom Party, Mr S., settles his account with anti-fascists in a new book.” In the course of the book review Mr S. was criticised for balancing accounts with “post-war leftists” (“ Nachkriegs-Linke ”), while “S. did not find similar critical words as regards Jörg Haider. He even pardoned his (Haider’s) belittlement of the concentration camps as ‘punishment camps’. Haider’s opponents had also employed nazi-terminology by using the term ‘extermination camp’. (German) Über Haider findet S. übrigens an keiner Stelle seines Buches ähnlich kritische Worte. Sogar dessen Verharmlosung der Konzentrationslager als ‘Straflager’ sieht er ihm nach. Haiders Gegner hätten mit dem Ausdruck ‘Vernichtungslager’ ebenfalls NS-Begriffe verwendet.” On 29 December 1998 Mr Haider filed a compensation claim under the Media Act ( Mediengesetz) with the Wiener Neustadt Regional Court ( Landesgericht ) against the applicant company. On 28 July 1999 the Regional Court ordered the applicant company to pay ATS 50,000 as compensation to Mr Haider and to publish its sentence and ordered the forfeiture of the issue concerned, pursuant to the relevant provisions of the Media Act. The court noted in its reasoning that the above passage gave the impression to an average reader of Profil that Jörg Haider had played down the extent of crimes committed in concentration camps when using the term punishment camps, and that he had thereby infringed Sections 3g and 3h of the National Socialism Prohibition Act ( Verbotsgesetz ). The reproach of a criminal offence was capable of slurring Mr Haider or of lowering him in public esteem and therefore constituted defamation ( üble Nachrede ) under Section 111 of the Criminal Code ( Strafgesetzbuch ). Therefore Section 6 of the Media Act applied in the applicant company’s case. It was unnecessary to determine whether the impugned passage constituted a value judgment or a statement of fact, as the applicant company had failed to give any factual background for its reproach. While it was true that Mr   Haider, in 1995, had used the term at issue in a speech before the Parliament in plenary session and subsequently in an interview with the magazine Profil, he had done so, on both occasions, when also speaking about the near extinction of an ethnic minority in these camps. Therefore the reproach against Mr Haider was not justified. The applicant company appealed, arguing that the term “belittlement” was a value judgment based on sufficient facts. Mr   Haider had used the word “punishment camp” in his speech in Parliament. It was not excessive either, since the term at issue implied that persons detained in such camps had committed a crime, for which they were punished. As a politician, Mr   Haider exposed himself to close scrutiny by journalists and the public and, thus, had to display a higher degree of tolerance against criticism for his choice of words. On 15 December 1999 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the appeal and confirmed the Regional Court’s judgment. The court noted that the article had grossly disregarded the context in which the impugned term had been used by Haider. In particular, he had added that an ethnic minority had almost been made extinct in these camps. The readers, four years after Haider’s speech in Parliament and his interview with Profil in 1995, would not remember its contents, and, if at all, would remember only such abbreviated information as was indicated in the article. Correct reporting would have been even more necessary in order to enable readers to form their own opinion. B.     Relevant domestic law and practice 1. Domestic law Section 6 of the Media Act ( Mediengesetz ) provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” is defined in Section 111 of the Criminal Code ( Strafgesetzbuch ) as follows: “ 1.     As it may be perceived by a third party, anyone who accuses another of having a contemptible character or attitude, or of behaving 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 ... 2.     Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ... 3.     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 also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true." Section 3g of the National Socialism Prohibition Act ( Verbotsgesetz ) reads as follows: "Whoever performs activities inspired by National Socialist ideas in a manner not coming within the scope of Section 3a to 3f shall be liable to punishment by a prison sentence between one and ten years, and if the offender or his activity is particularly dangerous, by a prison sentence of up to twenty years, unless the act is punishable under a different provision stipulating a more serious sanction." Section 3h of the Prohibition Act provides that, anyone who, in particular in mass media, denies, grossly minimises, approves or justifies the "mass murder under the National Socialist regime" ( nationalsozialistischer Völkermord ) or other "National Socialist crimes against humanity" ( nationalsozialistische Verbrechen gegen die Menschlichkeit ), is also punishable pursuant to Section 3g. 2. Domestic practice On 21 March 2001 the Vienna Court of Appeal ( Oberlandesgericht Wien, 24 Bs 244/00 ) acquitted the Austrian political scientist, Mr A. Pelinka, of charges of defamation instituted by Mr   Haider in a private prosecution for a statement Mr Pelinka had made in an interview with the Italian TV station RAI on 1 May 1999. “Haider has repeatedly made statements in his career, which are to be assessed as belittlement of National Socialism. He once called the concentration camps ‘punishment camps’. On the whole, Haider is responsible for making certain National Socialist opinions and certain National Socialist remarks politically more acceptable.” (German) “Haider hat im Laufe seiner Karriere immer wieder bestimmte Aussagen gemacht, die als Verharmlosung des Nationalsozialismus zu werten sind. Er hat einmal die Vernichtungslager ‘Straflager’ genannt. Insgesamt ist Haider verantwortlich für eine neue Salonfähigkeit bestimmter nationalsozialistischer Positionen und bestimmter nationalsozialistischer Äußerungen.” The court noted that an average television spectator would understand these comments in the way that Mr Pelinka alleged that Mr Haider had repeatedly made statements, which, in his view, were to be considered as a belittlement of National Socialism. It further noted that the majority of spectators was not legally skilled and, thus, did not know details of the Prohibition Act and the minimum requirements of a punishable offence thereunder. Those spectators would consider any such remark as trivialising, even if by legal standards the remark concerned did not reach the requirements of Section 3g of the Prohibition Act. Mr Haider, a politician, constantly present in various types of media, who had achieved considerable recognition - though not because of his fair treatment of political opponents - was required therefore to display an even higher degree of tolerance towards criticism. While the brief quotation concerning the “punishment camps” was not a sufficient basis to justify the value judgment at issue, it revealed the ambivalent attitude of Mr   Haider towards the National Socialist Regime. This is reflected in his speeches, in which he combines nazi-terminology with attempts to trivialise and render meaningless these ideas. Mr   Haider could, thus, be accused of “flirting” with National Socialist ideas and of entering “grey areas”, where the actual dimension of the atrocities committed under that regime was not accepted. Therefore the impugned value statement could not be regarded as excessive and remained within the limits of required relevant facts. There was, thus, no room for finding that the offences of defamation had been made out. COMPLAINT The applicant complained under Article 10 of the Convention that the court order to pay compensation violated its right to freedom of expression. THE LAW The applicant complained that the Austrian courts’ order to pay compensation was in breach of Article 10 of the Convention, which 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 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.” The Government submitted that the order to pay compensation to Mr   Haider constituted an interference with the applicant company’s right to freedom of expression and to impart information under Article 10 § 1 of the Convention, which was justified under Article 10 § 2. The order was prescribed by law, namely by the relevant provisions of the Media Act and Section 111 §§ 1 and 2 of the Penal Code, it pursued a legitimate aim of protecting the reputation or rights of others, and was necessary in a democratic society for the following reasons. Referring to the domestic courts’ findings, the Government argued that the applicant company had failed to furnish the background of the statement at issue and, thus, to inform the average reader of the context in which the term “punishment camp” had been used by Mr Haider in 1995, namely that he spoke about the near extinction of ethnic minorities. The fact that he had made this statement four years before the book review was published would have required all the more that the real background was provided in an objective manner. By depriving the readers of this essential factual information, they have been presented with a defamatory statement without a sufficient basis of facts, namely that Mr Haider would play down Nazi concentration camps by referring to them as “punishment camps”, which thus inadmissibly distorted the meaning of Mr Haider’s statement. The Government stressed that the domestic courts have by no means deprived the applicant company of its right to critically assess statements by politicians. As regards the nature of the interference, the Government submitted that the applicant company was ordered to pay ATS 50,000 (approximately EUR 3,633) compensation, which remained within the lowest range of possible punishment. In addition, the applicant company had to publish the decision and the issues concerned were confiscated. Thus, the interference was not disproportionate either. In the Government’s view, the domestic proceedings relating to Mr   Pelinka’s acquittal needed to be distinguished from the present case. Firstly, because Mr Pelinka availed himself of a less polemic language than the applicant company when he maintained that a number of Mr   Haider’s statements were to be assessed as “belittlement of National Socialism”, of which the use of the term at issue was one concrete example. Secondly, the Vienna Court of Appeal stressed that the impugned value judgment was only justified as it was embedded in a verifiable context. In the present case, however, the applicant company had failed to provide such a verifiable context for its statement. Lastly, since Mr Pelinka gave a radio interview, he could not have withdrawn his statement, whereas the applicant company, disposing of various editorial mechanisms before publishing an article, could have refrained from doing so. The applicant company did not dispute the Government’s submissions relating to the existence of the interference, its legal basis and the legitimate aim pursued. It argued that the interference was unnecessary in a democratic society. In particular, it contested the Government’s view that the applicant company had been convicted of defamation because it had published an article in the framework of a book-review, in which it had alleged that Mr   Haider would play down Nazi institutions. Rather, the article at issue criticised, among other things, Mr   Haider’s choice of words, namely that he employed the much more harmless term “punishment camp” instead of “concentration camp”. Thus, Mr Haider was neither reproached with committing an offence under the Prohibition Act nor with trivialising concentration camps as such, but rather with trivialising “concentration camps as punishment camps”. The fact that this value judgment concerned the employment of Nazi-terminology could also be inferred from the subsequent quotation of the book author that even Mr Haider’s opponents used Nazi-terminology. Therefore readers were told exactly what the author of the article considered to be a belittlement, namely the use of the term “punishment camp” instead of “concentration camp”. Judging it to be a belittlement was justified and in no way excessive, as it was published in a political context, namely a book-review which expressed criticism against its author. Unlike the case of Feldek v. Slovakia (no.   29032/95, ECHR 2001-VIII) where the Court found that the reproach against a politician of having a “fascist past” constituted a value judgment justified in the circumstances of that case even if it had not been supported by accompanying facts, the applicant company had in fact submitted the accompanying facts for its value judgment that the choice of words of “punishment camps” instead of “concentration camps” constituted a belittlement. In the applicant company’s view, the passage at issue constituted a moderate value judgment based on facts. As a politician, well-known in but also outside Austria, who had even given rise to Austria’s marginalisation within the EU-Member States, Mr   Haider should have displayed more tolerance towards criticism of his own choice of words. Further, it shared the Government’s view that the present case could be distinguished from the above-mentioned proceedings against Mr   Pelinka, however, on different grounds. The allegation in the Pelinka case was that Mr Haider trivialised National Socialism as such, whereas in the present case merely his choice of words were considered to be a trivialisation. Consequently, the allegation at issue in the present case was less drastic and less invasive and could not be understood as a reproach of an offence under the National Socialism Prohibition Act. Finally, it was irrelevant whether the statement had been made in a radio interview or published in the newspaper, since Mr Pelinka had certainly known the questions beforehand and had been prepared to answer. Moreover, the radio interview had not been broadcast live but in a shortened version and, thus, Mr Pelinka could have asked to amend his statement. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Declares the application admissible, without prejudicing the merits of the case.   Michael O’Boyle   Nicolas Bratza   Registrar   President