AS TO THE ADMISSIBILITY OF
Application No. 21113/93
by J. W.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 12 October 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 August 1992 by
J. W. against Austria and registered on 4 January 1993 under file
No. 21113/93;
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 facts, as they have been submitted by the applicant, may be
summarised as follows.
The applicant, an Austrian citizen living in Lienz (Austria) and
born in 1928, is owner of a hotel in Lienz. Before the Commission he
is represented by Mr. J. Hippacher, a lawyer practising in Lienz.
A. Particular circumstances of the case
On 11 May 1990 the applicant wrote a letter to the Tirol Regional
Police Authority (Landesgendarmeriekommando) complaining inter alia
about Mr. T., a police officer and member of the Oberlienz City Council
(Gemeinderat). This letter contained in particular the following
passage:
"Es ist aber sicher ebenfalls einmalig, daß ein aktiver Gendarmeriebeamter hergeht und unterstützt eine Grundräuberei, wo er doch wissen muß, daß die Unverletzlichkeit des Eigentums schon im Staatsgrundgesetz verankert ist. Ein Beamter, der Eigentum zu schützen hat, geht als pol. Mandatar her und tut das Gegenteil. Er wäre sogar vepflichtet gewesen, nach § 84 der Straf- prozeßordnung vorzugehen und nicht bei dieser Lumperei noch mitzumachen." It is surely a unique situation that a police officer who is on active service supports a robbery of land although he should know that the the inviolability of the right to property is laid down in the Constitution. A civil servant who should protect the right to property acts, in his capacity as a politician, to the contrary. He was even obliged to act in accordance with S. 84 of the Code of Criminal Procedure and should not have taken part in this dirty trick". On 30 January 1992 the Kitzbühel District Court, upon Mr. T.'s request for prosecution (Privatanklage), convicted the applicant of defamation (Üble Nachrede) under Section 111 of the Criminal Code (Strafgesetzbuch) and fined him AS 900. The Court had regard to the letter written by the applicant on 11 May 1990 and in particular the passages quoted above. It considered that the applicant, as he chose to write this letter to the Regional Police Authority, had intended to make Mr. T. contemptible or lower him otherwise in public esteem. The Court further considered that the proof of this allegation according to paragraph 3 of Section 111 of the Criminal Code had not been established. In this respect, the Court pointed out that the City Council's decision granting a third person the building permit for a path which would partly lead over the applicant's land, did not deprive the applicant illegally of his property, as the purchase of the property concerned still had to be negotiated or separate expropriation proceedings had to be instituted. Moreover, the applicant could have filed a complaint with the Regional Authorities, had he only intended to point at the alleged unlawfulness of the City Council's decision. The Court, therefore, dismissed the applicant's requests to examine the City Council's files and documents relating to the building consent proceedings as evidence and to hear witnesses in this respect, as these were no means to prove an unlawful deprivation of his property. In these and the following proceedings the applicant was assisted by counsel. On 10 April 1992 and on 5 May 1992 the Kitzbühel District Court dismissed the applicant's requests for the rectification of the trial record as irrelevant. On 19 June 1992 the Innsbruck Regional Court (Landesgericht) dismissed the applicant's plea of nullity (Nichtigkeitsbeschwerde) and his appeal against conviction (Berufung), and rejected the appeal (Beschwerde) against the District Court's decisions of 10 April 1992 and 5 May 1992. The Court considered that the applicant had not provided sufficient evidence to justify his statements, as he had not shown that Mr. T., when voting in favour of the allegedly unlawful building permit, had acted against his better judgment. Moreover, the Regional Police Authority, to which the letter was sent, would only have been competent to deal with complaints regarding Mr. T.'s conduct as a police officer, not, however, relating to his behaviour as an elected member of the City Council. Furthermore, the Regional Court, having regard to the case-law according to which a politician had to accept even harsh criticism, found that a municipal councillor could not be reproached with the robbery of land and dirty tricks for having participated in allegedly incorrect votes in the municipal council. The Court also considered that the District Court was justified in refusing the applicant's request for the taking of further evidence, as they could not have led to a different result. As regards the decisions of 10 April and 5 May 1992, the Regional Court noted that there was no right to appeal against decisions dismissing requests for the rectification of a trial record. B. Relevant domestic law Section 111 of the Austrian Criminal Code provides as follows: "1. Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine... ... 3. The person making the 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 liable if circumstances are established which gave him sufficient reason to assume that the statement was true." COMPLAINTS 1. The applicant complains under Article 10 of the Convention that his conviction for defamation violated his right to freedom of expression. 2. Under Article 6 of the Convention the applicant considers that the dismissal of his requests for the taking of evidence and the refusal to rectify the trial record deprived him of a fair trial. 3. He also complains under Article 7 of the Convention about his conviction, and the application of Austrian law regarding the local building regulations. THE LAW 1. The applicant complains under Article 10 (Art. 10) of the Convention that his conviction for defamation violated his right to freedom of expression. Article 10 (Art. 10), as far as relevant, provides as follows: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ..." The Commission finds that the applicant's conviction of defamation by the Kitzbühel District Court, as confirmed upon appeal, constituted an interference with the exercise of his freedom of expression. Such interference is in breach of Article 10 (Art. 10), unless it is prescribed by law and necessary in a democratic society for one of the aims mentioned in paragraph 2 of this provision. The Commission considers that applicant's conviction was based on S. 111 of the Austrian Criminal Code, and thus prescribed by Austrian law. Moreover, the interference aimed at protecting "the reputation or rights of others", namely of Mr. T., the police officer and member of the Oberlienz City Council criticised by the applicant. This is a legitimate aim under Article 10 para. 2 (Art. 10-2). It remains to be determined whether the interference was "necessary in a democratic society". The Commission recalls that the Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision (Eur. Court H.R., Observer and Guardian judgment of 26 November 1991, Series A No. 216, pp. 29-30, para. 59). The Commission notes that the applicant was convicted of defamation because he had, in a letter sent to the Regional Police Authority, Mr. T.'s superior authority, alleged that Mr. T. contributed to the "robbery of his land" and took part in a "dirty trick". The Austrian Courts, when convicting the applicant of defamation, found that he had intended to make Mr. T. contemptible and to lower him in public esteem. If he had intended to merely criticise the decision of the Oberlienz City Council, he could have challenged its lawfulness by lodging a complaint with the Regional Authorities. In these circumstances, the Commission finds that, weighing the applicant's interest in criticising Mr. T's vote and behaviour within the City Council and Mr. T.'s right to have his reputation protected against being disparaged in a letter to his superior authority, the interference complained of can be reasonably regarded as "necessary in a democratic society" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention. Accordingly, there is no appearance of a violation of Article 10 (Art. 10) of the Convention. This part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. Under Article 6 (Art. 6) of the Convention the applicant considers that the dismissal of his requests for the taking of evidence and the refusal to rectify the trial record deprived him of a fair trial. The Commission recalls that Article 6 (Art. 6) of the Convention does not give an absolute right to the examination of every witness or evidence proposed by the defence (Eur. Court H.R., Engel and others judgment of 6 June 1976, Series A no. 22, p. 38, para. 91; Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89). In particular a court is justified in refusing to summon witnesses when it considers that their statements could not be of any relevance to the case (Appl. No. 10486/83, Dec. 9.10.86, D.R. 49, p. 86). In the present case, the Kitzbühel District Court dismissed the applicant's requests to take further evidence, namely in particular to examine witnesses regarding the deliberations in the Oberlienz City Council as being irrelevant. Upon appeal, the Innsbruck Regional Court confirmed that these requests could not clarify the issue of the applicant's guilt. In these circumstances, the Commission finds no indication that the Austrian courts failed to consider relevant evidence. Moreover, there is nothing to show that the applicant, assisted by defence counsel, could not properly present his case, or that the proceedings were otherwise conducted in an unfair or arbitrary manner. Accordingly, the applicant's submissions do not disclose any appearance of a violation of Article 6 (Art. 6), or of any other provision of the Convention. It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2). 3. The applicant further complains under Article 7 (Art. 7) of the Convention about his conviction, and, in this context, about the application of Austrian law regarding the local building regulations. When examining the applicant's complaint under Article 10 (Art. 10) of the Convention, the Commission has already found that his conviction of defamation was based on S. 111 of the Austrian Penal Code. There is no appearance of a violation of his right under Article 7 (Art. 7) of the Convention. Consequently, this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2). For these reasons, the Commission unanimously DECLARES THE APPLICATION INADMISSIBLE. Secretary to the First Chamber President of the First Chamber (M.F. BUQUICCHIO) (A. WEITZEL)
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