FOURTH SECTION
DECISION
Application no. 37777/22
GEMEINNÜTZIGE PRIVATSTIFTUNG ANAS SCHAKFEH
against Austria
The European Court of Human Rights (Fourth Section), sitting on 30 January 2024 as a Committee composed of:
Tim Eicke, President,
Branko Lubarda,
Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Section Registrar,
Having regard to:
the application (no. 37777/22) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 July 2022 by an Austrian private foundation, Gemeinnützige Privatstiftung Anas Schakfeh (“the applicant foundation”), which was founded in 2010, is based in Vienna and was represented by Mr R. Soyer, a lawyer practising in Vienna;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns statements made by a public official during a press conference on investigations into terrorist activities. Relying on Articles 6 and 13 of the Convention, the applicant foundation complains that the statement violated its presumption of innocence and that no effective remedy was available to it.
2. The applicant foundation is a private foundation registered in Vienna, having as its purpose the promotion of continuous education and international understanding. The application was lodged by two board members on behalf of the applicant foundation.
3. On 4 August 2020 the Graz Public Prosecutor’s Office (hereinafter “the prosecutor”) began investigating the applicant foundation and its board members for membership of a terrorist organisation and financing of terrorism by adding them as suspects to a large-scale investigation which had started in 2019 and eventually involved over 100 other suspects in Austria. From the launch of the investigations, the investigation file was designated a classified matter (Verschlusssache) and no access to it was permitted.
4. On 2 November 2020 a terror attack was carried out in Vienna. The perpetrator killed four and injured more than 20 persons before he was shot dead by the police. He was later identified as a 20‑year‑old Austrian national who had previously been convicted for, inter alia, attempting to join the Islamic State of Iraq and Syria (ISIS).
5. On 9 November 2020, a large-scale search and seizure operation named “Operation Luxor” was carried out to execute over 60 house searches which were ordered by the prosecutor as part of his investigation (see paragraph 3 above) and approved by a court. The applicant foundation’s premises were also searched.
6. On the same day, the Federal Minister for the Interior (hereinafter “the minister”) and the Director General for Public Security (hereinafter “the director general”) held a televised press conference on “Operation Luxor”. The minister opened the press conference, a recording of which is available online to this day, by stating that while the terror attack (see paragraph 4 above) was still being investigated, parallel operations were being carried out against “those behind it” (Hintermänner). Subsequently, the director general stated:
“Since the early hours more than 930 police officers [...] have been on duty, as mentioned, at more than 60 house searches [...] in apartments, companies, associations, foundations and mosque associations, whose affiliation with the Muslim Brotherhood or Hamas has been proved (nachgewiesen werden konnte). [...] This operation was preceded by lengthy investigations, which have been ongoing since the middle of 2019, by the [Offices for] Constitutional Protection together with the Graz Public Prosecutor’s Office. These investigations included wide-ranging observation measures, technical measures and comprehensive financial investigations. As mentioned, more than 70 suspects are affected, who have established a criminal structure to conceal assets which serve to support a terrorist organisation. These are criminal acts (verbrecherische Tathandlungen). [...] It is not religion that is the subject of the measures but the investigations and the measures against suspects who are under suspicion of belonging to a terrorist organisation or against supporters of a totalitarian ideology.”
Neither the minister nor the director general mentioned the name of any of the suspects during the press conference.
7. On 10 November 2020 the applicant foundation requested access to the investigation file. On 12 November 2020 the prosecutor denied the request on the grounds that the file was classified (see paragraph 3 above) so as to not jeopardise the investigations.
8. On 12 November and 21 December 2020, respectively, the applicant foundation lodged objections for breach of rights by the prosecution in investigation proceedings under Article 106 of the Code of Criminal Procedure (hereinafter the “CCP”). In its first objection, the applicant foundation complained that it was not granted access to the file. In its second objection, it argued that the director general’s statement violated the presumption of innocence and was attributable to the prosecutor who – under domestic law – oversaw media relations during investigation proceedings.
9. In another complaint, the applicant foundation also challenged the court’s decision to approve the search of its premises (see paragraph 5 above). On 29 July 2021 the Higher Regional Court declared the search unlawful as the investigation file did not disclose a sufficient suspicion of any offence potentially committed by the applicant foundation’s representatives for which the applicant foundation could be liable under the Legal Entities Liability Act (Verbandsverantwortlichkeitsgesetz). In particular, it considered the suspicions raised against the applicant foundation and its board members, which were largely based on academic expert reports on purported networks of the Muslim Brotherhood in Austria, to be “remote conjectures” (Mutmaßungen über mehrere Ecken).
10. On 7 September 2021 the Regional Criminal Court handed down its decision on both remaining objections (see paragraph 8 above). In granting the first objection, it held that the denial of access to the file breached the applicant foundation’s rights and ordered the prosecutor to grant access. However, it rejected the second objection as inadmissible, holding that an objection under Article 106 of the CCP was only possible against investigative or coercive measures but not against press statements. It also held that there was no violation of subjective rights under the CCP. The applicant foundation appealed, relying on Articles 6 § 2 and 13 of the Convention.
11. On 3 November 2021 the Higher Regional Court dismissed the appeal and upheld the Regional Criminal Court’s decision (see paragraph 10 above).
12. On 17 March 2022 the applicant foundation lodged a request for renewal of criminal proceedings under Article 363a of the CCP (see ATV Privatfernseh-GmbH v. Austria (dec.), no. 58842/09, § 32, 6 October 2015), arguing that the Higher Regional Court’s decision violated its rights under Articles 6 § 2 and 13 of the Convention.
13. On 7 June 2022 the Supreme Court rejected the renewal request (see paragraph 12 above). It held that media communications were not part of the investigative proceedings and that the criminal police’s media relations were not subject to control by the prosecutor. The press statement could thus not be challenged by an objection under Article 106 of the CCP (see paragraph 8 above), which applied to breaches of rights by the prosecutor in the course of investigation proceedings.
14. On 12 July 2022 the Regional Criminal Court discontinued the investigation proceedings against the applicant foundation and its board members upon their request under Article 108 § 2 of the CCP for lack of a sufficient suspicion against them.
15. The applicant foundation complained under Article 6 § 2 of the Convention that the director general’s statements encouraged the public to believe it guilty, in particular the passages affirming that their affiliation with terrorist organisations had been proved and that they had established a criminal structure (see paragraph 6 above). It further complained that the press conference had unjustifiably connected them to the 2020 terror attack (see paragraphs 4 and 6 above). It also alleged a lack of an effective remedy under Article 13 of the Convention, relying on a ruling by the Supreme Court in another case (see decision 11 Os 109/21w of 8 February 2022) where it had held that filling potential legal gaps in remedies against media communications of investigative authorities was not within the competence of the judiciary. According to the applicant foundation, the discontinuation of the investigations did not deprive it of its victim status as it could not remedy the alleged violations which exerted effects beyond the time of the impugned statement.
THE COURT’S ASSESSMENT
16. The Court notes that at the heart of the applicant foundation’s complaints lies the allegation that its right to be presumed innocent under Article 6 § 2 of the Convention had been violated by the director general’s press statement of 9 November 2020 (see paragraph 6 above).
17. The general principles regarding the presumption of innocence have been summarised in G.C.P. v. Romania (no. 20899/03, §§ 54-55, 20 December 2011) and Butkevičius v. Lithuania (no. 48297/99, § 49, ECHR 2002-II (extracts)). The Court held that the presumption of innocence covers statements made by public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge the assessment of the facts by the competent judicial authority (see also Allenet de Ribemont v. France, 10 February 1995, § 41, Series A no. 308). In G.C.P. and Butkevičius (cited above), the Court has further emphasised the importance of the choice of words by public officials in their statements to the press before a person has been tried or found guilty of an offence and that whether a statement is in breach of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made.
18. At the outset, the Court notes that the applicant foundation is a legal person. However, under Austrian law – as explained by the Higher Regional Court (see paragraph 9 above) – a legal person such as the applicant foundation could in theory be criminally liable for acts of its representatives under the Legal Entities Liability Act (see, mutatis mutandis, G.I.E.M. S.r.l. and Others v. Italy [GC], nos. 1828/06 and 2 others, §§ 266 et seq., 28 June 2018). The Court further notes that the Austrian authorities have instituted criminal investigation proceedings against the applicant foundation itself (see paragraph 3 above), in the course of which the applicant foundation was also subjected to investigative measures (see paragraph 5 above). Nevertheless, the Court does not find it necessary to decide the question whether Article 6 § 2 of the Convention applies to the applicant foundation’s complaint in these circumstances as the application must in any event be rejected as being inadmissible for the following reasons.
19. The Court takes note of the fact that the applicant’s name was neither mentioned in the general director’s statement nor at the press conference at large. It thus has to be examined whether the applicant foundation has sufficiently established that it had been labelled as guilty of an offence in a manner which would have stigmatised it personally in public opinion or prejudiced any judicial proceedings concerning the suspected offences (Kalliola and Others v. Finland (dec.), no. 36741/97, 6 September 2001; Allenet de Ribemont, cited above, § 41).
20. The Court has acknowledged that, in certain cases, a person may still be capable of being identified without his or her name having been mentioned (see Dovzhenko v. Ukraine, no. 36650/03, § 49, 12 January 2012; Peša v. Croatia, no. 40523/08, §§ 146-48, 8 April 2010). The Court has found an applicant sufficiently identifiable to attract the guarantees of Article 6 § 2 of the Convention, despite not having been named, in situations where the suspect’s name had become known to the public prior to the impugned statement (Dovzhenko, cited above, §§ 50-51), where the suspect held high office in an agency and was arrested a day before the impugned statements referred to criminal activities of the agency’s “highly positioned employees” (Peša, cited above, §§ 143-46), where reference was made to a political scandal involving politicians whose identity was publicly known (Konstas v. Greece, no. 53466/07, §§ 39-40, 24 May 2011), or where the suspects were opposition leaders whose arrest was widely reported before the impugned statement (Huseyn and Others v. Azerbaijan, nos. 35485/05 and 3 others, § 231, 26 July 2011). In the absence of such indicators which would render an unnamed suspect identifiable, the Court has not considered Article 6 § 2 to be implicated or violated (Kalliola and Others, cited above; Béres and Others v. Hungary, nos. 59588/12 and 2 others, § 32, 17 January 2017; Natsvlishvili and Togonidze v. Georgia, no. 9043/05, § 104, ECHR 2014 (extracts); Shuvalov v. Estonia, nos. 39820/08 and 14942/09, § 77, 29 May 2012).
21. In the present case, the applicant foundation has not offered any arguments, let alone substantiated, why it could be identified without its name, or those of its board members, being mentioned in the impugned statements. While some formulations chosen by the public officials may have been problematic, in particular those passages portraying elements of the crimes still under investigation as established facts or connecting the investigations to the terror attack, there is nothing in the statement to suggest that they intended to render or did render the applicant foundation, or for that matter, any of the other suspects of the investigations, identifiable (Natsvlishvili and Togonidze, cited above, § 104). Neither does the application disclose any of the indicators cited in the Court’s case-law (see paragraph 20 above) on the basis of which it could conclude that, at the time of the press conference, the applicant foundation was publicly known to be one of the more than 100 suspects. In this regard, particular weight must also be attached to the fact that the investigation file was classified well before and after the impugned press conference (see paragraphs 3 and 7 above).
22. It has thus not been established that the applicant foundation could have been labelled as being guilty of (or liable for) an offence in a manner which would have stigmatised it in public opinion or prejudiced any judicial proceedings concerning the suspected offences (Kalliola and Others, cited above; Allenet de Ribemont, cited above, § 41). It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
23. In the light of the conclusion above, the Court does not find it necessary to examine whether, despite the discontinuation of investigations (see paragraph 14 above), the applicant foundation can claim to be a victim within the meaning of Article 34 of the Convention (Kerimoğlu v. Türkiye, no. 58829/10, § 44, 6 December 2022).
24. Turning to the complaint under Article 13 taken in conjunction with Article 6 § 2 of the Convention, the Court refers to its case-law on the lack of an independent existence of Article 13 of the Convention (see Zavoloka v. Latvia, no. 58447/00, § 35(a), 7 July 2009). In view of the above findings that the applicant foundation’s complaint under Article 6 § 2 of the Convention is manifestly ill-founded (see paragraphs 21-22 above), the Court finds that no issue can arise under Article 13 taken together with that provision. Consequently, this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
25. It follows that the application must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 22 February 2024.
Ilse Freiwirth Tim Eicke
Section Registrar President