AS TO THE ADMISSIBILITY OF
Application No. 13717/88
by H.O.
against Austria
The European Commission of Human Rights sitting in private
on 2 May 1989, the following members being present:
MM. J.A. FROWEIN, Acting President
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 29 December 1987
by H.O. against Austria and registered on 17 March 1988
under file No. 13717/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen, born in 1925 and living
in Strass. He is represented by Mr. S. Gloss, lawyer in St. Pölten.
It follows from his statements and the documents submitted by
him that on 27 June 1986 the applicant was convicted by the Langenlois
District Court (Bezirksgericht) of slander (üble Nachrede) for having
addressed two letters to federal and regional offices (Gremien) of the
professional organisation of Austrian wine and liquor wholesale
traders and other persons related to the wine business containing
deliberate untrue accusations against the plaintiff (Privatankläger),
Mr. U.
According to the findings of the District Court an Austrian
newspaper, the "Neue Kronenzeitung", had published an article on
26 February 1983 under the heading "Wines, adulterers and proceedings"
(Weine, Fälscher und Verfahren) about irregularities in the Austrian
wine economy. On account of this article Mr. U brought a private
criminal action against the author of the article. In connection with
these proceedings the Neue Kronenzeitung published a communiqué in
accordance with Section 37 (1) of the Press Act (Mediengesetz) stating
that Mr. U had lodged a private criminal action against W, editor,
who had published the afore-mentioned article. The relevant part of
the article was then repeated, namely that a wine dealer of St.
Margareten used to submit to his German wholesale clients two bills
with different prices. The higher priced bill was paid by the retail
customer while the lower priced bill was used for tax declaration
purposes.
The applicant, who is himself a wine producer, read the article
and sent a copy of it to the federal office (Bundesgremium) of his
professional organisation. He stated that according to trustworthy
information the newspaper article referred to Mr. U who allegedly was
in serious difficulties for having for years practised a system of
double invoicing. This constituted, so the applicant argued, unfair
competition (grobe Benachteiligung von Kollegenbetrieben). He
therefore requested the exclusion of Mr. U from the organisation's
activities as he probably had for years violated the law and the
interests of the profession (da Herr U mit grosser Wahrscheinlichkeit
jahrelang grob gegen unsere Berufsinteressen und das Handelskammer-
gesetz zum Schaden unserer Kollegenschaft verstossen hat).This letter
was transmitted to U who informed the applicant on 19 May 1983 that he
had in fact been accused of double invoicing but it followed from a
report of the competent tax authorities of 21 April 1983 that this
accusation was unfounded. U added that the investigations of the tax
authorities had been carried out by K and that he, U, was prepared to
dispense K from his obligation to keep the matter secret. Furthermore
U's lawyer also wrote to the applicant informing him about the private
criminal action against the editor of the newspaper article and about
the result of an audit carried out in U's enterprise. He stated that
the audit report attested his client's business practices to be
correct. Therefore, so he warned the applicant, he should refrain from
making further incriminating statements as he was now informed about
the true facts.
On 13 February 1985 the editor W asked the applicant whether
it was a common practice in the wine export business to grant
discounts and to what amount. He sent the applicant copies of letters
and order confirmations. One letter sent by the firm R to U, dated
10 December 1976, referred to an order confirmation No. 263/76 and
stressed that the vendor would have to repay 0.50 DM per litre to the
firm 0 once the order had been carried out. The order confirmation
No. 263/76 addressed by R to the client A.O named the vendor U, the
amount of wine ordered and the price per litre (3 DM), as well as a
commission of 5%. In a letter of 13 December 1976 addressed by R to U
it was again stressed that after delivery and payment 1.25 DM would
have to be refunded to R. A further copy annexed to W's request was
an order confirmation No. 272/76 of 13 December 1976 by R addressed to
A.O relating to the order by A.O of 3,000 hectolitres of Austrian wine
for the price of 1.25 DM per litre and a commission of 2% from 0.95 DM
per litre.
On 15 February 1985 the applicant sent a circular letter to
the offices (Gremien) of his professional organisation. Joining
copies of the documents sent to him by W he stated in that letter that
these copies clearly indicated dubious business practices such as tax
evasion, violation of foreign exchange regulations or even fraud
committed by U who should be ousted from his functions in the
professional association at least until the scandalous events were
fully cleared up.
On 25 February 1985 U refuted these accusations by way of a
circular letter sent to the offices concerned.
The applicant sent his reply on 5 March 1985 to the various
authorities concerned stating inter alia:
"A man managing his business in such an unlawful,
unscrupulous and reckless manner has certainly nothing
to do in our profession's organisation" (Ein Mann, der so
verantwortungs- und rücksichtslos seine Geschäfte führt,
hat in der Berufsvertretung sicher nichts verloren).
According to the further findings of the District Court the
applicant was himself a business partner of the firm A.O. However,
the applicant did not contact A.O in order to obtain concrete
information about possible unfair business practices committed by U.
The tax audit report on U's enterprise for the period 1977-79
revealed no irregularities. Investigations by the Public Prosecutor in
Eisenstadt relating to U's wine business were pending.
In the years 1976/77 the average export price for wine of the
quality in question was 5 DM per litre and U's sales corresponded to
this price. U had agreed to the creation of a fund for advertisement
in Germany. This fund was to be financed by an increase of the
habitual retail-price per litre which the seller then refunded to the
wholesaler by way of a commission.
All details of this arrangement were, according to the
District Court, properly recorded in U's accounts.
In view of these findings the District Court concluded that
the applicant's accusations were based on untrue allegations and that
the applicant was aware of this as none of the documents sent to him
by W confirmed what he said in his letters incriminating U. He
therefore violated Sec. 111 (1) of the Criminal Code (StGB) for having,
on the basis of untrue factual allegations, wrongly accused and denigrated
another person for having acted in a dishonest or unfair manner.
The applicant was sentenced to a fine of 30 day rates in the
amount of 1000 AS each corresponding to 15 days' imprisonment in case
of non-payment.
The applicant lodged an appeal (Berufung). He argued that his
letters about U did not contain any untrue factual allegations as he
had only pointed out in them that it followed from the documents
submitted to him by W that U had accepted to repay a certain
percentage of the price obtained by selling his wines. This business
practice was not contested by U and therefore he, the applicant, was
not punishable for the only reason that as an official of the
professional organisation he communicated to the instances concerned
his own opinion on this practice.
On 28 April 1987 the Regional Court (Kreisgericht) in Krems
dismissed the appeal concerning the conviction. It granted however
the appeal against sentence stating that it was not necessary to
impose a further fine (Zusatzstrafe) as the applicant had already been
fined 200 day rates of 800 AS each on 7 April 1986. The judgment
imposing this fine had become final and the appellate court considered
that had the two matters been decided jointly no higher fine would
have been fixed.
The appellate court pointed out in its decision that both U and
U's counsel had informed the applicant that the tax authorities had
examined U's business activities and found no reason for objections.
In these circumstances the applicant disposed of no evidence allowing
the conclusion that U had committed tax evasion, fraud or any
violation of currency exchange regulations. A possible violation of
the law committed by the firm A.O did not justify the accusations made
against U.
The written judgment was served on the applicant on 1 July 1987.
COMPLAINTS
The applicant complains that he was wrongly convicted and
sentenced.
He alleges that his conviction is based on the statements made
by the plaintiff U. He further alleges that at the hearing of his
appeal he requested the Court to examine the file 3 St 223/85 of the
Public Prosecutor's office in Eisenstadt. It relates allegedly to
investigations against U on the basis of suspicion of fraud and
violations of the Food Act (Lebensmittelgesetz). The request was not
granted allegedly on the ground that according to U's submission the
investigation proceedings referred to were not at all related to the
case at issue. The applicant argues that he was thus deprived of the
possibility to prove that his allegations about U's illegal business
activities were correct. He invokes Article 6 paras. 1 and 3 (d) of
the Convention.
THE LAW
The applicant has complained of his conviction on 27 June 1986
by the Langenlois District Court and also of the court proceedings
concerned.
With regard to the judicial decisions of which the applicant
complains, the Commission recalls that, in accordance with Article 19 (Art. 19)
of the Convention, its only task is to ensure the observance of the obligations
undertaken by the Parties in the Convention. In particular, it is not
competent to deal with an application alleging that errors of law or fact have
been committed by domestic courts, except where it considers that such errors
might have involved a possible violation of any of the rights and freedoms set
out in the Convention. The Commission refers, on this point, to its
established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222,
236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45).
It is true that in this case the applicant also complains that certain
files of the Public Prosecutor in Eisenstadt concerning investigations against
U, plaintiff in the criminal proceedings against the applicant, were not
examined. Allegedly the applicant's defence counsel had, at the hearing of the
applicant's appeal, requested the Court to have the file submitted by the
Eisenstadt prosecution as evidence in the applicant's case. In this connection
the applicant now alleges a violation of Article 6 paras. 1 and (3) (d)
(Art. 6-1, 6-3-d) of the Convention.
However, even assuming that the request to examine
the file relating to criminal investigations against U was not
belated, the applicant has not shown that the investigation
proceedings in question relate to the business transactions which he
referred to in the letters leading to his conviction of slander. In
any event, only a final conviction of U in those proceedings might
possibly have justified the accusations levied by the applicant
against his competitor U within their professional organisation. It
can, in these circumstances, not be found that the files in question
were relevant for the determination of the charges brought in the
criminal proceedings against the applicant.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (J.A. FROWEIN)