AS TO THE ADMISSIBILITY OF
Application No. 12096/86
by Erich REBASSO
against Austria
The European Commission of Human Rights sitting in private
on 5 October 1987 the following members being present:
MM. C.A. NØRGAARD, President
M.A. TRIANTAFYLLIDES
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 4 March 1986
by Erich REBASSO against Austria and registered
on 7 April 1986 under file N° 12096/86;
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, an Austrian citizen born in 1940, is an
employee resident in Vienna. Before the Commission he is represented
by Dr. Unterasinger, a lawyer practising in Graz.
I.
The facts of the present application correspond partly to the
facts submitted by the applicant in Application No. 12007/86 which was
declared inadmissible by the Commission on 5 October 1987.
In particular, the applicant demanded damages before the
Vienna Regional Court (Landesgericht) from a newspaper publisher for
two newspaper articles which had been published in the newspaper "Neue
Kronenzeitung - Kärtner Echo". On 21 March 1985 the Regional Court
held that the two newspaper articles amounted to slander (üble Nachrede)
within the meaning of S.111 of the Austrian Criminal Code
(Strafgesetzbuch) and it awarded the appplicant 35'000.-AS for each.
Upon appeal the Vienna Court of Appeal (Oberlandesgericht) on 19
August 1985 reduced the amounts to the sums of 8'000.- and 5'000.-,
respectively.
II.
The present application concerns facts subsequent to the Court
of Appeal's decision of 19 August 1985.
On 24 August 1985 the "Neue Kronenzeitung - Kärtner Echo"
published the operative part of the decision of the Regional Court of
21 March 1985.
The article had as a first headline the words: "In the name of
the Republic" ("Im Namen der Republik"). There followed in small
print the first sentences of the decision of the Regional Court of 21
March 1985 according to which the two previous newspaper articles
amounted to slander within the meaning of S.111 of the Austrian
Criminal Code. In big letters the article then printed the headlines
of the articles which constituted slander, namely "Good advice was
expensive: Pensioner lost property" ("Guter Rat war teuer: Rentner
verlor Besitz") and "Judge waited: But (the applicant) 'won't come'"
("Richter wartete: Doch [der Beschwerdeführer] 'kummt net'"), as well
as the contested passages thereof. Finally the article also
reproduced from the decision of the Regional Court of 21 March 1985
the damages awarded to the applicant, though here the article
substituted the amounts fixed by the Court of Appeal on 19 August 1985
for those fixed by the Regional Court.
In a separate comment on the same page the newspaper stated
that upon appeal the Court of Appeal had reduced the damages from
twice 35'000.-AS to 8'000.- and 5'000.-AS, respectively, and that at
the public pronouncement of the judgment the presiding judge of the
Court of Appeal had mentioned as a ground for the loss of the
applicant's esteem his "extremely unsound conduct" ("äusserst
unseriöses Verhalten").
III.
The applicant thereupon demanded damages from the newspaper
publisher. He relied on S.6 of the Media Act (Mediengesetz) according
to which such damages must be paid if the criminal offence of slander
has been committed. The applicant submitted in particular that on
24 August 1985 the article in the "Neue Kronenzeitung" had mixed the
decisions of the first and second instance courts, that the parts
which concerned the applicant had been printed in heavier type, and
that he had neither applied for, nor approved, publication of the
previous judgments.
On 18 December 1985 the Review Chamber (Ratskammer) of the
Vienna Regional Court terminated the proceedings (Einstellung),
in non-public proceedings, on the ground that the facts at
issue did not constitute a criminal offence. The Review Chamber
found that the newspaper publisher was free to publish at his own
expense the respective decision since the proceedings could also be
reported by publishing the judgment. It did not amount to slander
within the meaning of S.111 of the Criminal Code, if decisions of
two courts had been mixed or if certain parts of the article had been
printed in heavy type, since the reader would read the whole article.
Finally, the Review Chamber found that the newspaper's further comment
corresponded to the decision of the Court of Appeal of 19 August
1985 in which it had referred to the applicant's "unsound conduct".
Against the decision of the Review Chamber of 18 December 1985
the applicant filed an appeal (Beschwerde) with the Vienna Court of
Appeal, in which he alleged that the newspaper articles of 24 August
1985 amounted to slander.
On 29 January 1986 the Court of Appeal dismissed, in
non-public proceedings, the applicant's appeal. The Court found
that the article was clear for the average reader who would be in a
position correctly to inform himself also of its procedural content.
IV.
S.8 para. 3 of the Media Act provides that, if an applicant
demands damages according to S.6 on the ground of slander, he will
have the rights of a private prosecutor (Privatankläger) and the
provisions concerning private prosecutors in criminal proceedings will
apply accordingly.
The Code of Criminal Procedure (Strafprozessordnung) states in
S.483 that such proceedings are instituted in writing. According to
S.486 para. 3 in combination with S.485 para. 1(4), the Review Chamber
will terminate the proceedings in particular if the act at issue does
not constitute a criminal offence falling within the jurisdiction of
the courts. S.486 para. 4 stipulates in this case for the prosecutor
the possibility of an appeal to the court of second instance. If
there are no objections to the application of the prosecutor, S.487
requires the order of the trial (Hauptverhandlung). According to S.228
the trial is held in public. As regards the publicity of the Review
Chamber proceedings before the trial, S.113 states:
"(1) Whosoever claims during the preliminary enquiries, the
preliminary investigations or in the proceedings following the
indictment, to be a victim by means of an order or a delay of
the investigating judge, has the right in this respect to
request the decision of the Review Chamber and to make the
request either orally or in writing before the investigating
judge or directly before the Review Chamber...
(2) The Review Chamber decides in a non-public session after
hearing the investigating judge and the Public Prosecutor."
"(1) Alle, die sich während der Vorerhebungen, der Vorunter-
suchung oder in dem der Einbringung der Anklageschrift nachfol-
genden Verfahren durch eine Verfügung oder Verzögerung des Unter-
suchungsrichters beschwert erachten, haben das Recht, darüber eine
Entscheidung der Ratskammer zu verlangen und ihr Begehren entweder
schriftlich oder mündlich beim Untersuchungsrichter oder unmittel-
bar bei der Ratskammer anzubringen...
(2) Die Ratskammer entscheidet in nichtöffentlicher Sitzung
nach Anhörung des Untersuchungsrichters und des Staatsanwaltes."
If the Review Chamber in its decision decided to terminate the
preliminary investigations, S.114 para.2 of the Code of Criminal
Procedure provides as a further remedy an appeal (Beschwerde) to the
court of second instance. According to S.114 para. 2 the court in
second instance will thereby decide in a non-public session.
COMPLAINTS
The applicant complains under Article 6 of the Convention that
neither the Review Chamber nor the Court of Appeal conducted the
proceedings publicly.
Under Article 6 the applicant further complains that the
Review Chamber and the Court of Appeal both assumed that a court
decision had been properly published whereas in fact it had not. In
the applicant's submissions, Article 6 contains the right that court
proceedings are properly treated by the media.
THE LAW
1. The applicant has complained that neither the Review Chamber
nor the Court of Appeal conducted the court proceedings publicly.
Article 6 para. 1 (Art. 6-1) of the Convention states, insofar as it is
relevant to the present application:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law."
However, the Commission recalls that Austria ratified the
Convention subject to the reservation that "the provision of Article 6 (Art. 6)
of the Convention shall be so applied that there shall be no prejudice to the
principles governing public court hearings laid down in Article 90 of the 1929
version of the Federal Constitutional Law". Article 90 states:
"Hearings in civil and criminal cases by the trial court shall
be oral and public. Exceptions may be prescribed by law."
The Commission notes that, if an applicant demands damages
according to S.6 of the Media Act on the ground of slander, the
provisions concerning private prosecutors in criminal proceedings
apply accordingly. In the present case the first instance
proceedings at issue were terminated by the Review Chamber during the
phase of the preliminary investigations, i.e. before the trial was
ordered. In this respect the Commission notes the formulation of
S.228 of the Code of Criminal Procedure according to which the trial
shall be held in public, thus in principle not ensuring publicity in
other proceedings (see e.g. No. 460/59, Dec. 7.7.59, Collection 1).
Moreover, S.113 para. 2 confirms the generally non-public nature of
proceedings before the Review Chamber if the latter is handing down a
decision during the preliminary investigations concerning inter alia
the order of the investigating judge. Finally, S.114 para. 2 states
that the court in second instance will decide in a non-public session on
complaints against decisions of the Review Chamber to terminate such
proceedings.
In the Commission's view these provisions indicate sufficiently
the non-public nature of the proceedings concerning the applicant
before the Review Chamber and, on appeal, before the Court of Appeal.
Consequently, the Austrian reservation concerning Article 6 (Art. 6) is
applicable in respect of the applicant's complaint at issue. It follows that
this part of the application is incompatible ratione personae with the
Convention's provisions and must be rejected in accordance with Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains under Article 6 (Art. 6) of the
Convention that the Review Chamber and the Court of Appeal both
assumed that a court decision had been properly published whereas in
fact it had not. In the applicant's submissions Article 6 (Art. 6) contains
the right that court proceedings are properly treated by the media.
The Commission notes that before the Austrian courts the
applicant demanded damages from a newspaper which the courts
granted after considering that the newspaper articles concerned
amounted to slander. The Commission considers that the right to enjoy a good
reputation constitutes a "civil right" within the meaning of Article 6 para. 1
(Art. 6-1) and that the guarantees of that provision are therefore applicable
to the proceedings before the Review Chamber and the Court of Appeal in the
present case (see e.g. No. 8366/78, Dec. 8.3.79, DR 16 p.196). On the other
hand, Article 6 para. 1 (Art. 6-1) does not concern the manner in which
judidial decisions are handled by newspapers and other media.
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 constant
case-law (see e.g. No. 485/59, 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).
The Commission has nevertheless examined the applicant's
complaints under Article 6 para. 1 (Art. 6-1) of the Convention. However, it
finds no indication that the applicant could not present his case
properly or that the proceedings were otherwise unfairly conducted.
As a result the Commission finds that the complaints at issue do not
disclose any appearance of a violation of the rights set out in Article 6 para.
1 (Art. 6-1) of the Convention. The application is therefore in this respect
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 President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)