CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 25 janvier 2007

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   61 25.1.2007   Press release issued by the Registrar   CHAMBER JUDGMENT ARBEITER v. AUSTRIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Arbeiter v. Austria (application no. 3138/04).   The Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 7,934.11   euros (EUR) in respect of pecuniary damage and EUR 12,402.58 for costs and expenses. (The judgment is available only in English.)   1.     Principal facts   The applicant, Gebhard Arbeiter, is an Austrian national who was born in 1944 and lives in Klagenfurt (Austria). At the time of the events he was the chairman of the Carinthian Regional Hospital Workers’ Committee. He was also a member of the Carinthian Regional Parliament and speaker on health matters of the Carinthian regional branch of the Social Democratic Party ( SPÖ ).   In the context of a political debate concerning reform of the regional health system, which received much local media coverage, the Carinthian Regional Government commissioned Köck, Ebner and Partners in March 2001 to draft an expert opinion on the future of Carinthian hospitals, particularly with regard to reducing costs. In interviews with regional newspapers, the Managing Director, Mr   Köck, advocated cutbacks in superfluous services and closing smaller hospitals and hospital departments. He also criticised the actual functioning of regional hospitals, stating that many unnecessary surgical operations were carried out and that the mortality rate due to medical negligence was relatively high.   At the end of May 2001 Mr Köck co-founded a private investment company whose purpose was to take over and run hospitals with a view to maximising their potential.   Mr Köck’s appointment by the Regional Government, approved by the regional branch of the Austrian People’s Party ( ÖVP ) and the Austrian Freedom Party ( FPÖ ), was contested by the SPÖ . The latter also expressed misgivings that Mr Köck’s role as a government-appointed expert on the reform of regional hospitals, giving him access to relevant data on the subject, was not compatible with his involvement in a private hospital management company.   On 8 June 2001 the Kärnter Tageszeitung , a regional newspaper, published an article in which the applicant criticised Mr Köck for wishing to eradicate whole departments and hospitals from Carinthia and to break up a good health system in order to take over hospitals using his newly-founded company. He went on to associate Mr   Köck with another alleged technical “hot shot” previously employed by the Regional Governor, Mr   Jörg Haider, and who had ended up before the Public Prosecutor’s Office.   On 30 September 2002 the Klagenfurt Regional Court issued an injunction ordering the applicant to retract his comments and prohibiting him from making similar statements.   On 2 April 2003 an appeal by the applicant was dismissed and shortly after, on 10 July 2003, the Supreme Court rejected his extraordinary appeal.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 14 January 2004.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Loukis Loucaides (Cypriot), Françoise Tulkens (Belgian), Nina Vajić (Croatian), Anatoli Kovler (Russian), Elisabeth Steiner (Austrian), Khanlar Hajiyev (Azerbaijani), judges , and also Søren Nielsen , Section Registrar .   3.     Summary of the judgment [2]   Complaint   The applicant alleged that his right to freedom of expression had been violated. He relied on Article 10.   Decision of the Court The Court noted that it was not in dispute that the afore-mentioned injunction/judgments against the applicant constituted an interference with his right to freedom of expression nor was it in question that the interference was “prescribed by the law” and served the legitimate aim of protecting the rights and reputation of others. The Court decided to examine whether the reasons set forth by the domestic courts were “relevant and sufficient” and whether the interference was proportionate to the legitimate aim pursued.   The Court could not agree with the Regional Court’s findings that the statements made by the applicant were untrue and defamatory and that they gave the impression that Mr   Köck was totally unqualified and involved in criminal activities. The Court found that the applicant expressed his indignation at Mr Köck’s alleged intentions, which was his own opinion rather than an actual statement of fact.   The Court noted that there did in fact exist at the time certain objective factors supporting the applicant’s allegations. Mr Köck had advocated cutbacks and had also recently founded a hospital investment company. While asserting that he was not focusing on Carinthian hospitals yet, he had not excluded that possibility in the future. Unlike the domestic courts, the Court did not find that the reference to a previous expert employed by Mr Haider actually implied that Mr   Köck was guilty of criminal conduct but, within the context, appeared more as an example of the FPÖ party’s ways of choosing and supporting experts.   In that connection the Court further pointed out that the applicant’s statements had to be seen as permissible contributions within the broader context of an ongoing general, political debate. The Court considered that Mr Köck entered the public arena by repeatedly discussing that issue with the press and, as a consequence, had to bear a higher degree of tolerance to criticism.   Furthermore, having regard, on the one hand, to Mr Köck’s critical proposals and active involvement in a public discussion, and, on the other hand, to the applicant’s position as spokesman for those people primarily concerned, the Court considered that a certain degree of exaggeration had to be tolerated in the applicant’s response and reaction. The Court reiterated that Article 10 also protects information or ideas that offend, shock or disturb.   In sum, the Court found that the domestic courts restricted the applicant’s freedom of expression while relying on reasons which could not be regarded as sufficient and relevant. The courts therefore went beyond what would have amounted to a “necessary” restriction on the applicant’s freedom of expression and, accordingly, the Court held that there had been a violation of Article 10 of the Convention.   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.