EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 20915/92
Familiapress Zeitungs-GmbH
against
Austria
REPORT OF THE COMMISSION
(adopted on 3 March 1995)
TABLE OF CONTENTS
Page
I. THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . 1
(paras. 1-3)
II. SUMMARY OF THE FACTS. . . . . . . . . . . . . . . . . . . . . 2
(paras. 4-5)
III. THE PROCEEDINGS BEFORE THE COMMISSION . . . . . . . . . . . . 3
(paras. 6-13)
IV. THE DECISION OF THE COMMISSION. . . . . . . . . . . . . . . . 5
(paras. 14-17)
ANNEX: DECISION ON THE ADMISSIBILITY. . . . . . . . . . . . . . 6
I. THE PARTIES
1. This Report, which is drawn up by the Commission in accordance
with Article 30 para. 1 of the Convention, concerns the application
brought by Familiapress Zeitungs-Gmbh against Austria. The applicant
is a limited company registered in Vienna which is publishing a weekly
newspaper.
2. In the proceedings before the Commission the applicant was
represented by Mr. M. Graff, a lawyer practising in Vienna.
3. The respondent Government were represented by their Agent,
Mr. C. Cede, Ambassador, Head of the International Law Department at
the Federal Ministry of Foreign Affairs.
II. SUMMARY OF THE FACTS
4. The facts of the case are set out in the Commission's decision
on admissibility of 30 November 1994, attached hereto as an appendix
and can be summarised as follows:
5. The case concerns an injunction under the Unfair Competition Act
prohibiting the applicant from publishing parts of a cartoon which had
insulted the "Krone", the largest Austrian daily newspaper. The
applicant complained to the Commission under Article 10 of the
Convention.
III. THE PROCEEDINGS BEFORE THE COMMISSION
6. The application was introduced on 21 July 1992 and registered on
6 November 1992.
7. On 1 December 1993 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
8. On 24 February 1994 the Government submitted their observations.
The observations in reply by the applicant were submitted on
21 April 1994.
9. On 30 November 1994 the Commission declared the application
admissible and took a provisional vote on the question of a violation
of Article 10 (Art. 10) of the Convention.
10. By letter of 24 January 1995 the editing company Mediaprint,
owner of the "Krone", informed the Commission that, in his request for
leave to appeal to the Supreme Court, concerning further proceedings
under the Unfair Competition Act, Mr. Graff, acting as counsel of
Familiapress, had disclosed the Commission's decision to declare the
application admissible and also the provisional opinion of the
Commission on the question of violation. The Commission's admissibility
decision as well as the letter informing him on a strictly confidential
basis about the above provisional opinion were attached to the said
request.
11. Subsequently, the parties were requested to comment on this
matter before 17 February 1995. By letter of 10 February 1995 the
representative of the applicant company replied that the facts as
submitted by Mediaprint were correct. However, he pointed out that he
had asked for confidential treatment of the Commission's letter and had
not expected the other party to denounce him before the Commission. The
Government did not make any comments.
12. On 2 March 1995 the Commission decided to strike the present
application out of its list of cases, pursuant to Article 30 para. 1
(c) (Art. 30-1-c) of the Convention.
13. It adopted the present Report and decided to transmit it to the
Committee of Ministers and the Parties for information and to publish
it. The following members were present when the Report was adopted:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
G. RESS
IV. THE DECISION OF THE COMMISSION
14. The Commission notes that the applicant company used confidential
information as an argument for obtaining leave to appeal in domestic
court proceedings. In particular it disclosed the Commission's
provisional opinion on the question of a violation of Article 10
(Art. 10) and even attached the letter informing it on a strictly
confidential basis of the said provisional opinion. The domestic
proceedings at issue were similar to the proceedings which gave rise
to the present application, in that they related to a dispute under the
Unfair Competition Act between the same parties, i.e. Mediaprint, the
editor of the "Krone", and the applicant company. The submissions were
addressed to the Supreme Court and the applicant company must have been
aware of the fact that they would be brought to the attention of the
opposite party, in accordance with the relevant procedural rules.
15. The Commission considers that the parties are obliged to respect
the confidentiality of its proceedings. In this respect, the Commission
refers to Article 33 (Art. 33) of the Convention which provides that
the "Commission shall meet in camera" and to Rule 17 of its Rules of
Procedure. In the present case, the applicant company disclosed the
Commission's provisional opinion on the question of a violation of the
Convention for the purposes of pleading in domestic court proceedings.
According to the Commission's practice, information on its provisional
opinion is provided to the parties with a view to facilitating friendly
settlement negotiations. At this stage, the applicant is reminded of
the strictly confidential nature of this information. The Commission
finds that the applicant company's conduct constitutes a serious breach
of confidentiality. Furthermore, the explanations given by the
applicant company do not disclose any justification for its conduct.
16. In these circumstances, the Commission considers that it is no
longer justified to continue the examination of the application, within
the meaning of Article 30 para. 1 (c) (Art. 30-1-c) of the Convention.
17. Moreover, as regards the issues raised in the present case, the
Commission finds no reasons of a general character affecting respect
for Human Rights, as defined in the Convention, which require the
further examination of the application by virtue of Article 30 para. 1
(Art. 30-1) in fine of the Convention.
For these reasons, the Commission by a majority
DECIDES TO STRIKE APPLICATION No. 20915/92 OFF ITS LIST OF CASES;
ADOPTS THE PRESENT REPORT;
DECIDES TO SEND THE PRESENT REPORT to the Committee of Ministers for
information, to send it also to the parties' representatives, and to
publish it.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy