CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 27 février 2001

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     132   27.2.2001   Press release issued by the Registrar   JUDGMENT IN THE CASE OF JERUSALEM v. AUSTRIA   In a judgment notified in writing today [1] in the case of Jerusalem v. Austria, the Court of Human Rights held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights and that it was not necessary to examine separately whether there had been a violation of Article 6 (right to a fair trial) of the Convention. Under Article 41 (just satisfaction), the Court held that the finding of a violation in itself constituted sufficient just satisfaction for any non-pecuniary damage sustained by the applicant and awarded her 211,531.40 Austrian schillings for legal costs and expenses.   1.     Principal facts   The applicant, Susanne Jerusalem, an Austrian national born in 1950 and living in Vienna, is a member of the Vienna Municipal Council ( Gemeinderat ) which also acts as the Regional Parliament ( Landtag ).   In 1992, in the course of a session of the Vienna Municipal Council, the applicant gave a speech as a member of the Municipal Council. The debate related to the granting of subsidies by the municipality to an association which assisted parents whose children had become involved in sects. In the course of her speech the applicant alleged that two associations - the IPM (Institut zur Förderung der Psychologischen Menschenkenntnis), an association etablished under Austrian law and the VPM (Verein zur Förderung der Psychologischen Menschenkenntnis), an association established under Swiss law - were sects which had a “totalitarian character” and showed “fascist tendencies”.   The IPM and the VPM brought civil proceedings for an injunction against the applicant, prohibiting her from repeating the statement that the IPM and VPM were sects and ordering her to retract this statement. The applicant commented on the action and proposed evidence to confirm that the plaintiffs were sects. The IPM and VPM then altered their injunction claim to include the applicant’s comments, “totalitarian character” and “fascist tendencies”. The applicant replied to this modification by referring to her previous statements and the evidence she had put forward. The Vienna Regional Court held a hearing, accepted several documents submitted by the parties as evidence and rejected all requests for the taking of other evidence as irrelevant.   The Regional Court granted an injunction prohibiting the applicant from repeating her statements that the IPM and VPM were sects of a totalitarian character. It also ordered that she retract the statements and that the retraction be published in several newspapers. The court considered that the statements were not value judgments but statements of fact which the association's statutes and other evidence showed to be untrue. The applicant appealed to the Court of Appeal, which upheld the injunction but quashed the other orders. It considered the evidence proposed by the applicant irrelevant, since she had offered only to show that the associations were sects and not psycho-sects. The Supreme Court declared inadmissible the applicant's further appeal on points of law, although it confirmed that statements such as "fascist tendencies" or "totalitarian character" were statements of fact which the applicant had failed to prove.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 2 March 1995 and transmitted to the Court on 1 November 1998. It was declared admissible on 27 June 2000. A hearing was held on 3 October 2000.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President Willi Fuhrmann (Austrian), Loukis Loucaides (Cypriot), Nicolas Bratza (British), Hanne Sophie Greve (Norwegian), Kristaq Traja (Albanian), Mindia Ugrekhelidze (Georgian), judges   and also Sally Dollé , Section Registrar .     3.     Summary of the judgment [2]   Complaints   The applicant complained under Article 10 of the European Convention on Human Rights Convention that the injunction violated her right to freedom of expression. She also complained under Article 6 of the Convention that the injunction proceedings were unfair.   Decision of the Court   Article 10   The Court held that the injunction was an interference with the applicant's freedom of expression which was prescribed by law and pursued the legitimate aims of protecting the rights and reputation of others.   As to the question whether the interference was necessity in a democratic society, the Court observed that the applicant was an elected politician and freedom of expression was especially important for elected public representatives. Private individuals and associations also laid themselves open to scrutiny when they entered the arena of public debate, and, since the IPM and the VPM were active in a field of public concern and the IPM had cooperated with a political party, they should have shown a higher degree of tolerance to criticism. The applicant's statements were made in the course of a political debate and, although not covered by immunity as they would have been in a session of the Regional Parliament, the forum was comparable to Parliament as far as the public interest in protecting the participants' freedom of expression was concerned. Therefore, very weighty reasons were needed to justify an interference with the applicant’s right to freedom of expression.   The purpose of the speech was to highlight the necessity of subsidising anti-sect groups and, without mentioning the IPM or the VPM at that stage, the applicant expressed the opinion that sects had a totalitarian character; only later in the speech did she criticise the cooperation between the IPM and a political party.   The Court observed that the Austrian courts qualified the comments as statements of fact; but, in the Court's view, they were value judgments. It therefore examined the question whether there was a sufficient factual basis for them because a value judgment without any factual basis to support it might be excessive.   As regards the factual basis of the applicant’s value judgment, the Court noted that the applicant had offered documentary evidence which might have been relevant in showing a prima facie case that the value judgments were fair comment, but the Regional Court had refused to take further evidence, regarding it as irrelevant. As the Court of Appeal explained, the evidence offered merely related to the term “sect” and not to that term as explained by the applicant in her speech. Such evidence was therefore deemed irrelevant and no comment was made as to its availability.   The Court found that this distinction was artificial and disregarded the true nature of the debate; by requiring the applicant to prove the truth of her statements, while at the same time depriving her of an effective opportunity to produce evidence to support them, the Austrian Courts overstepped the margin of appreciation. The injunction thus amounted to a disproportionate interference. Therefore, there has been a violation of Article 10.   Article 6   In view of the above conclusion, the Court considered it unnecessary to examine this complaint.   Article 41   The Court considered that the finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage. It made an award in respect of costs for the domestic proceedings and the proceedings before the Convention organs.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [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.