Application No. 13399/87
by Paul GRÜSSINGER
against Austria
The European Commission of Human Rights sitting in private
on 1 March 1991, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 13 July 1987
by Paul GRÜSSINGER against Austria and registered on 23 November 1987
under file No. 13399/87;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen, born in 1912 and living
in Klagenfurt.
He has lodged a previous application on another subject-matter
(No. 3159/67) which was rejected in 1968.
It follows from his statements and the documents submitted
that on 18 July 1986 the applicant and his wife were convicted by the
Klagenfurt District Court (Bezirksgericht) of slander (üble Nachrede).
The applicant was ordered to pay a fine of thirty day rates in the
amount of 40 AS and his wife was ordered to pay a fine of twenty day
rates in the amount of 50 AS.
According to the findings of the Court the applicant brought
an action against the caretaker of the dwelling in which he and his
family lived. His memorial was also signed by his wife. In his
submissions to the Court the applicant alleged that the caretaker
often shouted at children, chased them away and threatened them, that
she had confiscated his son's ball when he was playing with it and
that, in her capacity as caretaker, she exercised a "regime of terror"
(Terrorregime) vis-à-vis the children of the community of flat
owners. The caretaker thereupon brought a private action
(Privatanklage) against the applicant and his wife.
The District Court took into consideration that, according to
the house rules, ball games were admitted only on the playground and
it was the caretaker's duty to see that the house rules were respected.
It further noted that, in the proceedings instituted against the
caretaker by the applicant, it had been established that the ball of
the applicant's son had been confiscated by the caretaker because the
son had been playing with it outside the area where ball games were
permitted. Furthermore the applicant had not been in a position to
prove his allegation that a majority of the eighty flat owners was in
favour of giving more liberty to children at play. In these
circumstances, so the District Court considered, the caretaker had not
only been authorised but even obliged to prevent children from playing
with balls outside the playground. As regards the term "terror
regime" the Court considered it was associated to ideas of murder,
homicide and totalitarian governments massively violating human
rights. As the defendants had not shown that their son or other
children had been ill-treated or injured by the caretaker, the use
of the term "terror regime" was considered to constitute the
expression of contempt in regard of another person's personality or
character within the meaning of Sec. 111 (1) of the Criminal Code
(StGB) which provides:
(German)
"Wer einen anderen in einer für einen Dritten wahrnehmbaren
Weise einer verächtlichen Eigenschaft oder Gesinnung zeiht
oder eines unehrenhaften Verhaltens oder eines gegen die
guten Sitten verstossenden Verhaltens beschuldigt, das
geeignet ist, ihn in der öffentlichen Meinung verächtlich zu
machen oder herabzusetzen, ist mit Freiheitsstrafe bis zu
sechs Monaten oder mit Geldstrafe bis zu 360 Tagessätzen zu
bestrafen."
(English translation):
"A person bringing another to contempt in a manner
perceivable to a third party by denouncing him as being of
mean character or dishonest or having immoral behaviour is
punishable with imprisonment up to six months or a fine up
to 360 day rates."
The appeal (Berufung) and plea of nullity (Nichtigkeits-
beschwerde) of the applicant and his wife were rejected by the
Klagenfurt Regional Court (Landesgericht) on 12 February 1987. This
Court stated, inter alia, that the conviction was compatible with the
Convention as the right to freedom of expression, as guaranteed by
Article 10, was limited in that it did not allow criminal acts.
COMPLAINTS
The applicant stated that his action against the caretaker was
still pending. He considered that his conviction features a means of
intimidation. In this context he mentioned that the fines and the
costs of the proceedings in the amount of 17,452 AS considerably
exceeded his monthly pension. He submitted that the term "terror"
referred to inconsiderate and violent action. He considered that, as
a plaintiff, the safeguarding of his interests justified the use of
the term in question.
He therefore considered that his conviction violated Article 10
as well as Article 7 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION AND FURTHER DEVELOPMENTS
On 8 March 1989 the Commission decided to communicate the
application to the respondent Government for observations on its
admissibility and merits to be submitted before 9 June 1989. On
2 June 1989 the Government requested an extension of this time-limit
until 1 September 1989 on the ground that meanwhile the Attorney
General (Generalprokurator) had lodged a plea of nullity for the
safeguarding of the law against the judgment complained of. On
31 August 1989 the respondent Government informed the Commission that
the judgment had been quashed and the case had been sent back for a
new trial. On 15 April 1990 the applicant wrote that he had been
acquitted and the question of costs had been satisfactorily settled.
He therefore wished to withdraw the application.
REASONS FOR THE DECISION
The applicant has withdrawn the application and there are no
reasons of a general character affecting respect for human rights, as
defined in the Convention, which require the further examination of
the case by virtue of Article 30 para. 1 in fine of the Convention.
For these reasons, the Commission unanimously
DECIDES TO STRIKE THE CASE OFF THE LIST OF CASES.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy