FIFTH SECTION
DECISION
Application no. 55537/10
Herbert HAUPT
against Austria
The European Court of Human Rights (Fifth Section), sitting on 2 May 2017 as a Chamber composed of:
Angelika Nußberger, President,
Erik Møse,
André Potocki,
Yonko Grozev,
Síofra O’Leary,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 20 September 2010,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Herbert Haupt, is an Austrian national who was born in 1947 and lives in Spittal an der Drau. He was represented before the Court by Gheneff-Rami-Sommer Rechtsanwälte KEG, a partnership of lawyers with its office in Vienna.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. Between 2002 and 2004 the applicant was Chairperson of the Austrian Freedom Party (Freiheitliche Partei Österreichs) and, between 28 February 2003 and 20 October 2003, Vice Chancellor of the Federal Government.
1. The publication giving rise to the application
4. On 19 September 2003 a comedy show was aired on ATV+ called “The Worst of the Week” (Das Letzte der Woche), in which a smiling host reported on events of the previous week in a satirical manner. His reports were accompanied by canned laughter. One of the reports concerned the fact that the applicant, then Vice-Chancellor of Austria, had become “godfather” to a baby hippopotamus at Vienna Zoo – a fundraising incentive designed to encourage people to become sponsors of the zoo. The report was illustrated firstly by the host of the programme holding up a photo of the applicant, then by footage of a big and a small hippopotamus strolling around, and then by reverting to footage of the host again. During the report, the host narrated the following text:
“Vice-Chancellor Herbert Haupt is godfather to a baby hippopotamus at Vienna Zoo. Haupt, the leader of the FPÖ [the Austrian Freedom Party], has already visited his godchild. The bigger animal is in fact the Vice-Chancellor. Both got along very well right from the start. There are many similarities: they are both usually surrounded by a lot of brown rats.”
2. The proceedings for compensation under the Media Act instituted by the applicant
5. On 13 October 2003 the applicant lodged a claim for compensation for non-pecuniary damage under section 6 of the Media Act (Mediengesetz), in conjunction with Article 115 of the Criminal Code (Strafgesetzbuch), against ATV Privat TV GmbH & Co KG (hereinafter “ATV”), the owner of the television channel ATV+, alleging that he had been insulted by the expression “brown rats”.
6. On 25 November 2003 the Vienna Regional Criminal Court (Straflandesgericht) dismissed his claim. It held that the applicant had not been called a brown rat, but had rather been compared to a nice and pleasant hippopotamus. The suggestion that the applicant surrounded himself with people of an extreme right-wing ideology did not constitute an insult, especially since the report did not allege that it was his wish to be in contact with those people. Moreover, the report did not show any footage of brown rats in the zoo and was clearly satirical; thus, not even people in the applicant’s day-to-day life could have felt insulted.
7. On 12 February 2004 the Court of Appeal allowed an appeal by the applicant, quashing the first-instance decision and referring the case back to the Regional Court. It agreed with the Regional Court’s finding that the applicant had not been insulted by the statement in question, but disagreed with its finding that it was the responsibility of politicians to choose who they surrounded themselves with. Consequently, the statement had amounted to defamation under Article 111 of the Criminal Code. It further held that proceedings should be remitted to the court of first instance in order to give the opposing party the opportunity to give its side of the story.
8. On 17 May 2004, the Regional Criminal Court, after hearing the applicant, ruled in his favour and ordered ATV to pay him compensation of 2,000 euros (EUR) and to retract the statement at issue. It held that ATV had failed to prove that the applicant had close links to people following an extreme right-wing ideology. The court refused to examine the three witnesses requested by ATV because it found that the latter had failed to substantiate the relevance of the requested witnesses to the proceedings.
9. On 10 January 2005 the Court of Appeal dismissed an appeal by ATV and upheld the Regional Court’s judgment of 17 May 2004. It also confirmed that the request for the three witnesses to be cross-examined had been unfounded in that it would not have served to prove the allegation that the applicant did not distance himself enough from people of questionable ideology in his day-to-day life.
3. The proceedings before the Supreme Court in respect of reopening the case, and the proceedings before the Court
10. On 26 June 2005 ATV introduced an application with the Court in which it complained that its conviction and the order for it to pay compensation to the applicant had violated its rights under Article 10 of the Convention (application. no. 25620/05).
11. On 29 May 2008 that application was communicated to the Austrian Government.
12. Following the communication of the application in the present case, the Government informed the Court that the Procurator General’s Office (Generalprokuratur) had requested the Supreme Court (Oberster Gerichtshof) to quash the Regional Court’s judgment of 17 May 2004 and the Court of Appeal’s judgment of 10 January 2005 and to allow the extraordinary reopening of the proceedings against ATV, in accordance with Article 362 § 1 of the Code of Criminal Procedure.
13. In a judgment of 24 June 2009 the Supreme Court granted the Procurator General’s request and remitted the case to the Vienna Regional Court. It found that (i) there were serious doubts regarding the correctness of the judgments in question as to how the contents of the transmission of the television programme at issue had been assessed and (ii) the Court of Appeal had not paid sufficient attention to the case-law of the European Court of Human Rights and the Supreme Court in this regard, particularly in the light of the principles laid down by the Court in the cases of Nikowitz and Verlagsgruppe News GmbH v. Austria (no. 5266/03, 22 February 2007) and Vereinigung Bildender Künstler v. Austria (no. 68354/01, 25 January 2007). Having regard to the findings of the Court of Appeal the Supreme Court considered that in the present case it was irrelevant whether the applicant had or had not identified himself with National Socialist statements, because the criticism contained in the reference to brown rats in his surroundings expressed the reproach that he had not properly distanced himself from such statements.
14. In the Supreme Court’s view it was common knowledge (gerichtsnotorisch) that at the time of the broadcast of the programme several politicians belonging to the Freedom Party had made neo-Nazi statements. The impugned statement from the broadcast therefore expressed a political criticism of Freedom Party party officials around the applicant and of his failure to distance himself from problematic statements made by them. Because the Court of Appeal had misinterpreted the main reproach made by the programme in respect of the applicant, there had been no collection and assessment of any evidence regarding the question of whether or not the applicant had made any statement distancing himself from statements uttered by Freedom Party officials. Thus, the Supreme Court ruled that the lower courts had to collect and assess further evidence in order to clarify this issue.
15. In the reopened proceedings, the Vienna Regional Criminal Court on 16 October 2009 dismissed the applicant’s claim for compensation and also ordered him to bear the costs in respect of the proceedings incurred by the opposing party. As regards the examination of evidence, the Regional Court listed a number of extreme right-wing or neo-Nazi statements made by high-ranking politicians belonging to the Freedom Party. It found further that the applicant had not publicly dissociated himself from these statements. Therefore, the impugned statement from the broadcast did not concern the applicant’s private and personal sphere but rather his professional, public position as a politician. It constituted a political criticism of the attitude and statements of the politicians from the Freedom Party referred to above and the manner in which the applicant had reacted to them.
16. On 10 March 2010 the Vienna Court of Appeal dismissed an appeal by the applicant against that judgment. It confirmed the findings of the Regional Criminal Court. As regards the applicant’s submissions concerning a breach of Article 1 of Protocol no. 1, the Court of Appeal – referring to the consistent case-law of the Supreme Court – found that there would be no breach of Article 1 of Protocol no. 1 if in proceedings following an extraordinary reopening of proceedings compensation already granted were to be annulled. On 18 March 2010 the lawyer of ATV submitted to the applicant’s lawyer a breakdown of its costs in respect of the proceedings and requested their reimbursement. On an unspecified date the applicant reimbursed those costs.
17. On 29 January 2013 the Court struck application no. 25620/05 out of its list of cases. It found that, following the setting-aside of the domestic judgments that ATV had complained of (the reopening of the proceedings in which the Vienna Regional Court had followed the Supreme Court’s line of reasoning and dismissed in its judgment of 16 October 2009 the compensation claim) the matter had been resolved within the meaning of Article 37 § 1 (b) of the Convention.
B. Relevant domestic law
18. If the publication of an article in a media outlet, viewed objectively, constitutes defamation or an insult within the meaning of Articles 111 and 115 of the Criminal Code respectively, the person defamed or insulted may claim compensation for non-pecuniary damage from the owner of the media outlet in question, under section 6 of the Media Act.
19. Articles 111 and 115 of the Criminal Code, in so far as relevant, read as follows:
Article 111
“1. Any person who accuses another person – as it may be perceived by a third party – of having a contemptible character or attitude, or of behaving contrary to honour or morality, in such a manner as to render him contemptible or otherwise lower him in public esteem, shall be liable to a term of imprisonment not exceeding six months or a fine ...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to render the defamation accessible to a broad section of the public, shall be liable to a term of imprisonment not exceeding one year or a fine ...
3. A person making [such a] statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be held liable if circumstances are established which give him sufficient reason to assume that the statement was true.”
Article 115
“1. Anyone who, either in public or in the presence of several others, insults, mocks, mistreats or threatens to mistreat a third party, shall be liable to imprisonment not exceeding three months or a fine ... unless he is liable to a more severe penalty under another provision ... ”
20. Section 6 of the Media Act, as in force at the time of the events, read as follows:
“(1) Where a medium publishes statements which constitute the actus reus of disparagement, insult, derision or defamation the victim shall have a claim against the owner of the medium ... for damages for the injury suffered ...”
(2) No claim shall arise under subsection (1) above where:
(a) the defamatory statement [in question] is true.”
21. Article 362 § 1 of the Code of Criminal Procedure, as in force since 2008, reads as follows:
“The Supreme Court may, after hearing the Procurator General and without being bound by the conditions set out in Article 353, allow the exceptional reopening of criminal proceedings to the benefit of a person convicted of a crime if an examination of the case file
(i) in the course of the preliminary deliberations on a plea of nullity or following a public hearing ...; or
(ii) upon a special request made by the Procurator General ...
raises considerable doubts as to the correctness of the facts on which a conviction has been based and which cannot be dispelled by further investigations ordered by the Supreme Court itself.”
22. Article 1435 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) reads as follows:
“Even things which have been transferred in order to honour a genuine debt may be reclaimed by the donor from the beneficiary if the legal cause for keeping them has ceased to exist.”
23. Article 363a of the Code of Criminal Proceedings, as in force since 1 March 1997, provides under the heading “Renewal of criminal proceedings” (Erneuerung des Strafverfahrens) as follows:
“1. If it is established in a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette [Bundesgesetzblatt] no. 210/1958) or of one of its Protocols on account of a decision [Entscheidung] or order [Verfügung] of a criminal court, a retrial shall be held on application in so far as it cannot be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned.
2. All applications for a retrial shall be decided by the Supreme Court. Those who are affected by the determined violation as well as the Procurator General’s Office are entitled to file an application. Article 282 § 1 of the Code of Criminal Proceedings shall be applicable analogously. The application is to be filed at the Supreme Court. If the Procurator General’s Office files an application, those who are affected, if the one affected files an application the Procurator General’s Office, shall be heard. Article 35 § 2 of the Code of Criminal Proceedings shall be applicable analogously.”
Further information on this provision may be found in ATV Privatfernseh‑ GmbH v. Austria (dec.) (no. 58842/09, §§ 18-22, 6 October 2015).
COMPLAINTS
24. The applicant complained that there had been a violation of Article 8 of the Convention because the Austrian courts had failed to strike a fair balance between freedom of expression and his interest in the protection of his reputation. His interest in the protection of his reputation should have outweighed ATV’s interest in disseminating on its television channel a statement which was of a lurid and degrading nature.
25. Under Article 6 of the Convention he further complained that the proceedings in respect of his compensation claim had not been concluded within a reasonable time, as required by that provision.
26. Lastly, the applicant complained under Article 1 of Protocol No. 1 that the dismissal of his compensation claim by the Austrian courts in the reopened proceedings – even though the Austrian Courts had already, in a final decision, allowed his claim for compensation – had violated his property rights.
THE LAW
A. Complaint under Article 8 of the Convention
27. The applicant complained that Article 8 of the Convention had been violated because the Austrian courts had failed to protect him against attacks on his reputation by a television channel that had disseminated a statement which had been of a lurid and degrading nature. Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
28. The Court reiterates that according to its case-law the right to reputation is an independent right guaranteed by Article 8 of the Convention, as part of the right to respect for private life, which the State has a positive obligation to protect. In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and be carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Bédat v. Switzerland [GC], no. 56925/08, §§ 72-73; Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012).
29. With regard to cases in which a violation of the rights guaranteed under Article 8 is asserted and the alleged interference with those rights originates in an expression, the Court has already found that the protection granted by the State should be understood as one taking into consideration its obligations under Article 10 of the Convention. It is the latter provision which has been specifically designed by the drafters of the Convention to provide guidance concerning freedom of speech – also a core issue in the present application. Paragraph 2 of Article 10 recognises that freedom of speech may be restricted in order to protect reputation. In other words, the Convention itself announces that restrictions on freedom of expression are to be determined within the framework of Article 10 enshrining freedom of speech (see Karakó, cited above, §§ 20-21). As a matter of principle, the rights guaranteed by these provisions deserve equal respect and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both (see Axel Springer AG v. Germany [GC], § 87 cited above, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012).
30. The Court has already had occasion to lay down the relevant principles which must guide its assessment in this area. It has thus identified a number of criteria within the context of balancing competing rights (see Axel Springer, cited above, §§ 90-95, and Von Hannover, cited above, §§ 109-13). The relevant criteria thus defined are: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, form and consequences of the publication, and, where appropriate, the circumstances in which the statement was made (see Print Zeitungsverlag GmbH v. Austria, no. 26547/07, § 33, 10 October 2013 and, mutatis mutandis, Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 93, 10 November 2015).
31. The most careful scrutiny under Article 10 is required where measures or sanctions imposed on the press are capable of discouraging the participation of the press in debates on matters of legitimate public concern. Furthermore, particularly strong reasons must be provided for any measure limiting access to information which the public has the right to receive. The Court has also observed that the press must not overstep certain bounds, particularly as regards the reputation and rights of others (see, for example, Węgrzynowski and Smolczewski v. Poland, no. 33846/07, § 56-58, 16 July 2013). However, the limits of acceptable criticism are drawn more widely as regards a politician than they are as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 46, ECHR 2007‑IV).
32. As to the form and contents of a publication the Court reiterates that a careful distinction needs also to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 98, ECHR 2004‑XI, and Kasabova v. Bulgaria, no. 22385/03, § 58, 19 April 2011). However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001‑II, and Falter Zeitschriften GmbH v. Austria (no. 2), no. 3084/07, § 41, 18 September 2012).
33. The Court reiterates further that satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist’s or social commentator’s right to such expression must be examined with particular care (see Vereinigung Bildender Künstler v. Austria, no. 68354/01, §33, 25 January 2007; Alves da Silva v. Portugal, no. 41665/07, § 27, 20 October 2009; EON v. France, no. 26118/10, § 60, 14 March 2013; and Welsh and Silva Canha v. Portugal, no. 16812/11, §§ 29 and 30, 17 September 2013), even though the use of this form of expression does not rule out any possibility of restriction under paragraph 2 of Article 10 of the Convention (see Leroy v. France, no. 36109/03, §§ 39 and 44, 2 October 2008, and Instytut Ekonomichnykh Reform, TOV v. Ukraine, no. 61561/08, § 46, 2 June 2016).
34. The Court considers that, notwithstanding the fact that the applicant claims a violation of Article 8 of the Convention, the Court has to determine whether the principles inherent to Article 10 were properly applied by the Austrian courts when examining the applicant’s actions (see Fürst-Pfeifer v. Austria, nos. 33677/10 and 52340/10, § 42, 17 May 2016; Ruusunen v. Finland, no. 73579/10, § 43, 14 January 2014; and Couderc and Hachette Filipacchi Associés, cited above § 93).
35. The Court observes firstly that the applicant, as Vice Chancellor of the Federal Government and Chairperson of the Austrian Freedom Party, is a well-known politician, in respect of whom the limits of acceptable criticism are drawn more widely than they are in respect of a private individual; he thus has to display a greater degree of tolerance in the face of such provocation.
36. As regards the question whether the attack on his personal honor and reputation the applicant complains of attained the requisite level of gravity for Article 8 of the Convention to come into play, the Court has acknowledged in previous cases that because of the special stigma which attaches to activities inspired by National Socialist ideas, any allegation that a person has an ambiguous relation to National Socialism constitutes a very serious reproach (see Wabl v. Austria, no. 24773/94, § 41, 21 March 2000 and Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 42, ECHR 2003‑XI). However, the Court does not consider it necessary to further explore the issue, because it considers this complaint to be inadmissible in any event for the reasons set out below.
37. The Court observes further that the programme at issue constituted a contribution to a public debate on a matter of legitimate public concern, namely statements made by high-ranking members of the Austrian Freedom Party which were criticised in the media as expressing extremist right-wing positions and the question of whether the applicant – in his position as Chairperson of that party – had distanced himself sufficiently from such statements.
38. As regards the contents of the publication, the reference to “brown rats” around the applicant constituted a value judgment which contained in satirical form a criticism of the applicant’s attitude. That criticism cannot be considered to constitute a personal attack; rather, as the Vienna Regional Court found, it constituted a political criticism of the applicant’s position as a politician. In this respect the Court reiterates that even though the truth of a value judgment is not susceptible of proof, a value judgment without any factual basis to support it may be excessive. Having regard to the detailed findings by the Regional Court in which it quoted various problematic statements made by politicians of the Austrian Freedom Party, the Court is satisfied that there was a sufficient factual basis.
39. On these grounds, the Court is satisfied that the judgment of the Vienna Regional Court of 16 October 2009, as upheld by the Vienna Court of Appeal, struck a fair balance between the competing interests in the present case.
40. Consequently, the Court concludes that there is no appearance of a violation of Article 8 of the Convention. It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Complaint under Article 6 of the Convention
41. The applicant complained further that the proceedings in respect of his compensation claim had not been concluded within a reasonable time, as required by Article 6 of the Convention. This provision, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
42. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).
43. The period to be taken into consideration began on 13 October 2003 when the applicant brought an action for compensation under the Media Act against ATV and ended on 10 March 2010 when the Vienna Court of Appeal dismissed the applicant’s appeal. However, the Court considers that the period between 10 January 2005, when the Court of Appeal dismissed the appeal of ATV in the first set of proceedings, and 24 June 2009, when the Supreme Court granted the Procurator General’s request for the extraordinary reopening of the proceedings, cannot be taken into account, as during this period no proceedings concerning the applicant’s claim were pending before the Austrian courts (see Seregina v. Russia, no. 12793/02, § 92, 30 November 2006, Markin v. Russia (dec.), no. 59502/00, 16 September 2004, Rudan v. Croatia (dec.), no. 45943/99, 13 September 2001). Thus, the overall period to be taken into account under Article 6 lasted for approximately one year and eleven months.
44. Given that the case was of some complexity and was dealt with at three levels of jurisdiction over a period of less than two years, there is no appearance of a breach of the reasonable time requirement under Article 6 § 1 of the Convention in the present case.
45. It follows that this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Complaint under Article 1 of Protocol No. 1
46. Lastly, the applicant complained under Article 1 of Protocol no. 1 that the dismissal of his compensation claim by the Austrian courts in the reopened proceedings – even though the Austrian Courts had already, in a “final” decision, granted his claim for compensation – had violated his property rights. This provision reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
47. The Court reiterates that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions”, within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. In order for a legitimate expectation to constitute a possession, the Grand Chamber clarified that, notwithstanding the diversity of the expressions in the case‑law referring to the requirement of a domestic legal basis generating a proprietary interest, the general tenor of the case-law was that the person had to have "an assertable right" which, applying the “sufficient basis in national law" principle enounced in Kopecký, may not fall short of "a sufficiently established, substantive proprietary interest under the national law" (see Béláné Nagy v. Hungary [GC], no. 53080/13, § 79, ECHR 2016; Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004‑IX). Moreover, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see Prince Hans‑Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82 and 83, ECHR 2001-VIII, and Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII).
48. In the present case the central question is whether the applicant had an undisputed claim to the amount of compensation granted to him by the Regional Criminal Court by its judgment of 17 May 2004. For the following reasons the Court considers that this was not the case.
49. In the first place the Court notes that, following the decision by the Court of Appeal of 10 January 2005 dismissing the appeal against the above judgment, the opposing party, on 26 June 2005, introduced an application to the Court under Article 35 of the Convention. Thus, the applicant should have been aware of the situation that under Austrian law such an application could lead to repercussions on the proceedings concerning his compensation award: that is to set into motion proceedings by which the judgment would have to be reconsidered with regard to his opponent´s rights under the Convention. In this respect the Court observes that the applicant´s compensation award was not only accessory to ATV´s criminal conviction, but the very sanction imposed on it for having committed an offence under Article 6 of the Media Act and Article 115 of the Criminal Code (see paragraphs 19 and 20 above). It was therefore clear to the applicant that the setting aside of the judgment would automatically affect the award of his compensation. In this respect the Court further observes that the renewal of criminal proceedings under Article 363a of the Code of Criminal Proceedings (see paragraph 23 above) can be requested by any person who claims a violation of its rights under the Convention. This provision supplements the reopening of criminal proceedings and serves the purpose of effectively ensuring compliance with any judgment of the Court in a specific case at domestic level. Under the established domestic case-law of the Supreme Court the finding of violation by the Court is not a necessary precondition (see ATV Privatfernseh-GmbH v. Austria (dec.), no. 58842/09, §§ 18-22, 6 October 2015). In the present case it was therefore only the communication under Articles 8 and 10 that led the domestic courts to the reconsideration of the case and the setting aside of the conviction with the effect of the dismissal of the compensation claim (see paragraph 16 above) and the Court´s strike-out of ATV´s application (see paragraph 17 above).
50. In these circumstances and having regard to the specific legal situation under domestic law, the Court considers that the applicant has not shown that he had a claim that was sufficiently established and therefore cannot argue that he had “possessions” within the meaning of Article 1 of Protocol No. 1. However, even assuming that the dismissal of the applicant’s compensation claim following the reopening of the criminal proceedings by the Supreme Court on 24 June 2009 constituted an interference with the applicant’s property rights protected under Article 1 of Protocol No. 1, any such interference was compatible with that provision.
51. In this respect the Court reiterates that in order for an interference to be compatible with Article 1 of Protocol No. 1 it must be lawful, be in the general interest and be proportionate, that is, it must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, Geotech Kancev GmbH v. Germany, no. 23646/09, § 65, 2 June 2016 with further references). However, having regard to the findings above concerning an alleged breach of Article 8 of the Convention (see paragraphs 35 et seq.) and the conclusions reached, the Court finds that there were a legal basis and sufficient reasons for the reopening of the proceedings. There are no indications that the dismissal of the applicant’s compensation claim, even though it had been granted in the first set of proceedings by a final and binding judgment, has been disproportionate.
52. Consequently, the Court concludes that there is no appearance of a violation of Article 1 of Protocol 1. It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 1 June 2017.
Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident
Full & Egal Universal Law Academy