CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 juin 2006

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Rozakis , President ,   Mr   L. Loucaides ,   Mrs   F. Tulkens ,   Mrs   N. Vajić ,   Mrs   E. Steiner ,   Mr   K. Hajiyev ,   Mr   D. Spielmann, judges , and Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 19 July 2002, Having regard to the observations submitted by the Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant company, Standard Verlagsgesellschaft m.b.H. is the owner and publisher of the daily newspaper “Der Standard” with its seat in Vienna. It was represented before the Court by Mrs M. Windhager, a lawyer practising in Vienna. The respondent Government are represented by their Agent, Mr Ferdinand Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Background The Region of Carinthia ( Land Kärnten ) is the majority shareholder of the Carinthian Electricity Corporation (Kärntner Elektrizitäts-Aktiengesellschaft - “ the KELAG”). On 16 June 1999 the KELAG invited all shareholders to the general meeting on 9 July 1999. One item on the agenda was the dismissal and re-election of the corporation’s supervisory board ( Aufsichtsrat ). For the meeting of the Carinthian Regional Government ( Landesregierung ) of 6 July 1999, Mr Pfeifenberger, the official dealing with financial matters at the material time, prepared a motion inviting the Regional Government to nominate specific persons to the corporation’s supervisory board. He retracted this motion before the meeting as, at the request of Mr   Haider, Regional Governor ( Landeshauptmann ) of Carinthia, he had received a legal expert opinion issued by the expert Q. According to this opinion, the Region of Carinthia had no right to nominate the members of the KELAG supervisory board as the members had to be elected. The representative of the Region of Carinthia could propose candidates and exercise the voting right in the general meeting of the KELAG without a prior decision by the Regional Government. Mr   Haider had further informed Mr Pfeifenberger that the Legal Department dealing with constitutional matters at the Carinthian Regional Government Office had approved this way of proceeding. Mr   Haider further commissioned an expert opinion by the Legal Department. This opinion, issued on 2 August 1999, stated that an interpretation of the relevant provisions did not lead to an unequivocal result. In the meantime, Mr Pfeifenberger - despite the protest of the socialist members of the Regional Government - gave authority to Mr Haider to represent the Region of Carinthia in the general meeting of the KELAG. Mr   Haider subsequently represented the Region of Carinthia at the said general meeting on 9 July 1999 and exercised the voting right without having previously obtained a decision by the Regional Government. On 14 July 1999, at the request of the Austrian Social Democratic Party (“the SPÖ”), a professor of law of the Graz University issued a further expert opinion concerning the question of “nomination of members to the KELAG’s supervisory board by the Governor of Carinthia”. This expert opinion came to the conclusion that the election of the supervisory board of the KELAG by the Regional Governor without a previous decision by the Regional Government was not in accordance with federal constitutional law, regional constitutional law and the Regional Government’s Rules of Procedure. The opinion finally mentioned the possibility of impeachment of members of the Regional Government before the Constitutional Court by majority vote of the Regional Parliament ( Landtag ) under Article 142 of the Federal Constitution ( Bundes-Verfassungsgesetz ) for having culpably breached the law. The Constitutional Court’s decision in impeachment proceedings consisted of either the exoneration of the official in question or a finding against him or her which implied dismissal of the person from office. The possibility for the Constitutional Court to limit its judgment in the event of minor infringements to a finding that there has been a breach of the law would not exist in the present case as impeachment had to be filed under Article   142   §   2 lit d which did not provide for this alternative. 2.     The article at issue On 16 July 1999 the applicant company published an article on its front page of “Der Standard” which read as follows: “Haider has breached the Constitution According to an expert opinion commissioned by the SPÖ at the Graz University, the Regional Governor Jörg Haider has committed a ‘breach of law’ when appointing the supervisory board of the KELAG. His handling of the Regional Government’s Rules of Procedure would be ‘illicit, illegal and unconstitutional’. The ÖVP [Austrian People’s Party] nevertheless does not want to support an impeachment. It invites Haider to correct the KELAG decisions concerning the personnel, which the FPÖ [Austrian Freedom Party] categorical refuses: ‘We refuse to be blackmailed’.” The article continued on page 8 under the same heading with the subtitle: “Expert opinion of professor in Graz accuses the Regional Governor of deliberate misguidance”. It stated as follows: “The Carinthian Regional Governor, Jörg Haider, by acting on his own when appointing the members of the KELAG supervisory board, has clearly committed a ‘breach of the laws and the Constitution’. This is the conclusion reached by A.S [name in full], professor at the Graz University, in his expert opinion on constitutional matters which had been commissioned by the Carinthian SPÖ. Haider, by acting on his own authority, has violated the Carinthian Government’s Rules of Procedure and has, thus, breached the law and the Constitution. The expert opinion mentions as an aggravating factor that Haider has ‘deliberately mislead the Regional Government and ignored the Regional Constitution and the Regional Government’s Rules of Procedure’. According to the expert opinion it is therefore possible to institute impeachment proceedings against Haider. If the Constitutional Court convicted Haider, he would be threatened with dismissal from office. The SPÖ leader Helmut Manzenreiter has now given Mr Haider an ultimatum: either the supervisory board should be appointed afresh by the Regional Government as a whole or there should be a tripartite agreement on transforming Kelag into a holding company. Otherwise, the SPÖ would institute impeachment proceedings against Mr Haider before the elections to the National Assembly. Mr Manzenreiter also called on the ÖVP not to ‘cover up’ Mr   Haider’s breach of the law. In the Regional Parliament the FPÖ reacted vehemently to the report. The leader of the FPÖ’s parliamentary group, Martin   Strutz, announced that a second opinion would be commissioned. Mr Haider himself could not hide his anxiety. He leaned back in a relaxed fashion only when the leader of the ÖVP’s parliamentary group, Klaus Wutte, made clear that the ÖVP would not support his impeachment. Although the ÖVP intends to await the findings of an ‘independent’ expert opinion, Mr Wutte nonetheless hinted at the party’s strategy: ‘Not punishment but rectification of Haider’s breach of the law.’ In so doing, he both foiled his colleague Georg Wurmitzer and confirmed the viewpoint that there is a ‘tacit coalition’ between the ÖVP and the FPÖ.” The article was followed by a further text in a small box headed “[The] Constitution stands above stock corporation law” ( Verfassung steht über Aktienrecht ). This text namely explained that Mr Pfeifenberger had prepared an act of Government ( Regierungsakt ) which Mr Haider had, however, retracted as being an “error”. The expert opinion found that this conduct amounted to deliberate misguidance of the Regional Government. The article further stated that the expert A.S. did not accept Mr   Haider’s reference to stock corporation law. 3.     Proceedings under the Media Act On 29 July 1999 Mr Haider instituted proceedings for forfeiture ( Einziehung ) of the article and publication of the judgment under Section   33 of the Media Act ( Mediengesetz ) with the St. Pölten Regional Court ( Landesgericht ). On 12 December 2000 the Regional Court found that the article at issue, by stating that Mr Haider had deliberately mislead the Regional Government and had acted in breach of the Carinthian Government’s Rule of Procedure and the Regional Constitution, fulfilled the elements of the offence of defamation ( üble Nachrede ) under Article 111 of the Criminal Code ( Strafgesetzbuch ). It, therefore, ordered the blackening of the impugned statements in the issues still to be disseminated and the publication of the judgment under Sections 33 and 34 of the Media Act. At the trial the court heard the counsel of the applicant company, Mr   Haider and Mr   Pfeifenberger. It dismissed the applicant company’s request to hear all other members of the Regional Government as being irrelevant for the proceedings at issue. The court considered the statements that Mr Haider had breached the Constitution, had deliberately mislead the Regional Government and had acted in breach of the law as statements of fact for which the applicant company had failed to supply sufficient proof. The court noted that there was, in particular, nothing to indicate that Mr Haider had deliberately misled the Regional Government which, in itself, was a sufficient reason for the ordered forfeiture. The fact whether or not Mr Haider had acted in breach of the Constitution was a matter which had to be decided by the Constitutional Court. The applicant company appealed against this decision. It submitted inter alia that the statements at issue were value judgments, based on the facts established by the expert opinion of the professor of the Graz University, and contributed to the discussion of a question of public interest. On 3 December 2001 the Vienna Court of Appeal ( Oberlandesgericht ), having the expert opinion of A. S. before it as evidence, dismissed the applicant’s appeal. It noted that the expert opinion had to be considered as an admissible legal assessment of uncontested facts. The article at issue had, however, not simply reproduced the opinion given by the expert but had used it for an independent attack on Mr Haider’s reputation. The court noted in this regard that the article had not placed the expert opinion in its context, namely that of a legal dispute, but had presented it as an irrevocable verdict on Mr Haider. The court referred in particular to the wording of the article’s headings. It further noted that the article had not published any comment of Mr Haider and had not mentioned the existence of the opinion issued by the other expert Q. Furthermore, the article contained statements which were not supported by the expert opinion, namely that Mr Haider had deliberately misled the Regional Government and the reference to the possible impeachment of Mr   Haider. The court noted in the latter regard that the expert opinion had merely mentioned the abstract possibility of impeachment of a member of the Regional Government who, in the opinion of the majority of the members of the Regional Parliament, had culpably breached the law. The court finally noted that the Regional Court’s findings as regards the blackening of the impugned statements did not replace but complemented an order of forfeiture of the relevant issues. This judgment was served on the applicant company’s counsel on 21   January 2002. 4.     Proceedings under the Civil Code On 4 December 2001 Mr Haider brought injunction proceedings under Article   1330 of the Civil Code ( Bürgerliches Gesetzbuch ) against the applicant company. On 19 June 2002 the Vienna Commercial Court ( Handelsgericht ), referring to the judgments of the courts in the proceedings under the Media Act, granted the injunction and ordered the applicant to revoke the statements that Mr Haider, by appointing the members of the KELAG supervisory board, had deliberately misled the Regional Government and had acted in breach of the Regional Government’s rules of procedure and the Regional Constitution. The court dismissed the applicant company’s argument that it could not be held responsible for the shortcomings of the article at issue since that article had been written by a journalist who was not trained in law. The journalist had relied on press releases prepared by the Socialist Party which summarised the expert opinion incorrectly. The court found that the applicant company had not complied with the obligation as to journalistic diligence as it had failed to consult the available expert opinion. On 20 November 2002 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant company’s appeal. This decision was served on the applicant company’s counsel on 4   December 2002. B.     Relevant domestic law Section   6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Article 111 of the Criminal Code ( Strafgesetzbuch ), as follows: “1.     Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such 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. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.” Section   33 § 2 of the Media Act reads as follows: “Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or any other person entitled to bring claims if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person cannot be secured or if conviction of such person is impossible on grounds precluding punishment, has not been requested or such a request has been withdrawn. If no punishment can be imposed in case of the offender having proved the truth, the defence of truth shall also be available to the owner (publisher) of the media product in question being the interested party ...”. Section   34 of the Media Act deals with the publication of a judgment ( Urteilsveröffentlichung ). It states inter alia that a criminal judgment concerning a media offence has, at the 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. At the request of the prosecution, the publication of a judgment has to be ordered in separate proceedings, if statements falling within the objective definition of an offence have been made in the media and the prosecution of a specific person is not possible. Section   1330 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) provides as follows: “1.     Anybody who, due to defamation, suffered a damage or loss of profit, may claim for compensation. 2.     The same applies if anyone is disseminating facts, which jeopardize another person’s reputation, gain or livelihood, the untruth of which was known or must have been known to him. In this case there is also a right to claim a revocation and the publication thereof...” COMPLAINTS The applicant company complained that the Austrian courts’ decisions infringed its right to freedom of expression under Article 10 of the Convention. The applicant company submitted in particular that the impugned statements have to be considered as value judgments and that the domestic courts failed to take evidence as to their sufficient factual basis, namely because they refused to hear all members of the Regional Government. THE LAW The applicant company complained that the Austrian courts’ decisions infringed its right to freedom of expression under Article 10 of the Convention. Article 10, as 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. 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.” A. The Government’s objection concerning compliance with the “six months rule” The Government argued that the final judgment in the proceedings under the Civil Code was served on the applicant company’s counsel on 4   December   2002. However, the applicant company’s complaints in this respect did not reach the Court until 7 October 2003, that is, more than six months after the above mentioned date. Therefore, this part of the application had been introduced out of time. The applicant company did not comment on this issue in its observations in reply. The Court recalls that the running of the six month time-limit imposed by Article   35   §   1 of the Convention is, as a general rule, interrupted by the first letter from the applicant indicating an intention to lodge an application and giving some indication of the nature of the complaints made. As regards complaints not included in the initial application, the running of the six months time-limit is not interrupted until the date when the complaint is first submitted to a Convention organ ( Allan v. the United Kingdom (dec.), no.   48539/99, 28 August 2001). In the present case, the applicant company’s counsel submitted an application form posted on 19 July 2002, in which the applicant company complained under Article 10 of the Convention about the outcome of the proceedings under the Media Act. No further indication as to civil proceedings was made at that time. In August, September and early October   2003 the applicant company’s counsel again contacted the Registry of the Court in order to enquire about further complaints concerning the proceedings under the Civil Code allegedly sent on 8 January 2003. Having been informed that these complaints had never arrived at the Court, counsel re-send a copy in October 2003 and submitted a sworn affidavit as regards the date of the initially sent documents. The Court finds that the applicant company counsel’s submissions that the further complaints concerning the civil proceedings had been posted in due time are credible. These complaints cannot, therefore, be declared inadmissible as being introduced out of time within the meaning of Article   35   §§   1 and   4 of the Convention. Accordingly, the Government’s objection must be rejected. B. The substance of the case As regards the substance of the applicant company’s complaint the Government accepted that the above measures constituted an interference with the applicant company’s rights under Article   10   §   1 of the Convention. They argued, however, that the interference was prescribed by law, pursued the legitimate aim of protecting effectively the reputation or rights of others and was proportionate to the aim pursued. The Government referred in this regard to the domestic courts’ findings which they considered relevant and sufficient. The Government in particular pointed out that, while the underlying expert opinion in itself basically was a value judgment, the impugned article did not refer to the matter as a legal dispute but built the expert opinion up to an irrevocable verdict on the Carinthian Governor. Thus, the article did not mention the existence of a counter-expert opinion. Moreover, as regards the distortion of the expert opinion, the applicant company could not prove that it had complied with its obligation to safeguard journalistic diligence as it had relied on a press release prepared by a political party whose views were known to be often contrary to those of the Carinthian Governor without examining the truth behind these statements. The Government finally argued that the interference was also proportionate as the Austrian courts merely ordered that the blackening of the impugned passages in the remaining issues of “Der Standard” still to be disseminated and the publication of the judgment. The applicant company contested these arguments. It contended that the article at issue contributed to a debate of public interest which, in the light of Mr Haider’s constant confrontations with the Constitution and its representatives, was all the more important. The article contained true statements of fact and thereupon based value judgments, namely statements concerning the legal classification of Mr Haider’s acts. The article correctly reflected the main conclusions of the expert opinion which constituted a permissible value judgment about Mr Haider’s acts. The domestic courts falsely found that the question whether there had been a breach of the Constitution was only for the Constitutional Court to decide and had not considered that this legal question finally remained controversial. The domestic courts’ and the Government’s finding that the article constituted an independent attack on Mr Haider’s reputation was not true as the article took account of Mr Haider’s position. The article explicitly referred to the announcement of counter-expert opinions by FPÖ and ÖVP politicians. The applicant company finally argued that it had complied with its obligation to journalistic diligence as it had based the article at issue, in addition to the press release, also on the expert opinion. When reporting on issues of public interests, the press should be able to rely on official reports without being obliged to conduct independent research. In the present there had been sufficient reasons to believe that the impugned statements were true. 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 prejudging the merits of the case.   Søren Nielsen   Christos rozakis   Registrar   President