FIRST SECTION
DECISION
Application no. 36409/04
by STANDARD VERLAGS GmbH and Rottenberg
against Austria
The European Court of Human Rights (First Section), sitting on 1 July 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 6 October 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Standard Verlags GmbH (“the applicant company”), is a limited liability company with its seat in Tulln. The second applicant, Mr Thomas Rottenberg, is an Austrian national living in Vienna. They were represented before the Court by Ms M. Windhager, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador Helmut Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.
I. THE CIRCUMSTANCES OF THE CASE
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The article at issue and its background
The applicant company is the owner and publisher of the daily newspaper der Standard. The second applicant is a journalist employed by the applicant company.
In the evening of 14 March 2001 the Austrian Freedom Party (Freiheitliche Partei Österreichs – FPÖ) organised an election campaign meeting in the context of the elections for the Vienna Municipal Council (Gemeinderat) on the premises of the Alsergrund (9th District of Vienna) Kolping Society. The Kolping Society is a Catholic social organisation. In the course of this event several speeches were given. Among the speakers was an FPÖ member, Mr Amhof, who at the time of the events was a member of the Vienna Municipal Council.
On page 11 of the issue of der Standard of Friday 16 March 2001 the applicant company published the following article written by the second applicant:
“FPÖ promises 'foreigner-free' district
Vienna – The FPÖ election campaign meeting held at the Kolping House in Alsergrund on Wednesday evening has caused dismay among the Austrian Kolping Society. The FPÖ had given prior assurances that it would not use xenophobic slogans, according to the Praeses (spiritual leader) of the Austrian Kolping Society, Ludwig Zack. 'Otherwise we would not have made the meeting room available.'
However, the FPÖ municipal councillor Nikolaus Amhof apparently sounded rather different on the podium, saying that his party would make sure that the 9th District was 'foreigner-free', as Zack recalls, 'literally'.
Other speeches in which RFJ (youth group linked to the FPÖ) officials complained about school classes with too many foreigners, saying 'That is not what I expect my children to face – it doesn't involve integrating foreigners into the class but rather integrating native Austrians into a multicultural society', sounded perfectly harmless in comparison. As did the FPÖ veteran who – likewise on the podium – declared himself to be 'not someone you can't tell anything to but someone you can't tell lies to' and expressed satisfaction 'that people are listening to us here and not to the so-called contemporary witnesses'.”
One day later, on page 2 of the issue of der Standard of Saturday/Sunday 17/18 March 2001, the applicant company published the following article written by the second applicant:
“I never said 'foreigner-free'
Kolping leader 'calm' about prospect of legal action by FPÖ councillor Amhof
Vienna – Ludwig Zack stands firm. 'I can't just say it didn't happen like that. The word was uttered', the Praeses of the Austrian Kolping Society reaffirmed to the Standard on Friday. The word which Zack 'quite definitely' heard was 'foreigner-free'. And the person who said it, according to the 67-year-old priest, was FPÖ municipal councillor Nikolaus Amhof, at the Kolping House in Alsergrund on Wednesday evening.
At an election campaign meeting of his party Amhof is alleged to have stated that the FPÖ would make sure that the 9th District was 'foreigner-free'. Zack wants other witnesses to come forward. But in any event, reports of such a comment have spread further afield. The Standard report triggered an avalanche of indignation: the SPÖ, the Greens and the ÖVP youth wing immediately called for Amhof to withdraw from standing in the municipal council elections.
Nikolaus Amhof insists that this is unfair. The Freedom Party representative claims that he 'never' said anything of the sort, 'not even anything close'. Accordingly, as he told the Standard, Amhof cannot imagine where the Kolping spiritual leader intends to find witnesses who can confirm the alleged comment, and has 'just asked him on the phone to take back his allegation. Otherwise I will sue him.' He adds that there were more than 300 people at the event, 'so we will very soon find out what I really said'.
In Amhof's view, Zack 'is always very quick to get emotional where foreigners are concerned. He must have distorted something.' While unable to judge whether this was intentional or not ('Professor Zack belongs to the progressive wing of the Church'), Amhof suspects 'party-political considerations'. He admits that he very probably did say in his speech that 'Alsergrund should stay Austrian'. That, in his opinion, did not amount to a breach of the FPÖ's agreement with the Kolping Society not to use xenophobic slogans in the house. 'After all, Alsergrund is part of Austria.'
Zack finds it absurd that he is being accused of wishing to interfere in the election campaign and remains calm about the prospect of legal action: 'I think Amhof is now aware of what an outrageous thing he said. Now he wants to undo it.' ”
B. The proceedings giving rise to the application
On 2 April 2001 Mr Amhof instituted criminal proceedings for defamation against Mr Zack and the second applicant under Article 111 of the Criminal Code (Strafgesetzbuch). He further sought compensation for defamation from the applicant company under section 6 of the Media Act (Mediengesetz). He submitted that the defendants had spread a false statement of fact as he had never uttered the word “foreigner-free” at the above-mentioned FPÖ meeting.
In two sets of proceedings judgments of the St Pölten Regional Court, which had acquitted the second applicant and had dismissed Mr Amhof's claims against the applicant company, were set aside by the Vienna Court of Appeal. The latter remitted the case to the Regional Court.
Subsequently, on 16 October 2003, the St Pölten Regional Court, having held a further hearing, convicted the second applicant under Article 111 of the Criminal Code of defamation and sentenced him to a fine of 1,500 euros (EUR), suspended for a three-year probation period. It further ordered the applicant company under section 6 of the Media Act to pay compensation in the amount of EUR 5,000 to Mr Amhof and ruled, lastly, that the judgment was to be published and the remaining issues of der Standard of 16 March 2001 were to be seized.
The Regional Court found it established that Mr Amhof had not said that “he would make the 9th District of Vienna foreigner-free” but that “the 9th District of Vienna should remain Austrian”. It considered that the two statements could not be regarded as equivalent, as the one which had been quoted in the impugned article had xenophobic, negative undertones. The applicants had therefore failed to prove that they had published a true statement. Moreover, the second applicant had not complied with the requirements of journalistic diligence as he had not obtained a comment from Mr Amhof before publishing the article at issue. The alleged pressure of time was not sufficient to release him from this obligation, all the more so as the impugned article had been published only two days after the election campaign meeting. The second applicant had based his article merely on Mr Zack's statement and had not even consulted the other witnesses mentioned by Mr Zack. When fixing the sentence the court had regard to the fact that by rectification in the issue of der Standard a day later, partial redress had been offered.
On 10 March 2004 the Vienna Court of Appeal dismissed an appeal by the applicants. It found that the statement which Mr Amhof had actually made was not equivalent to the statement published by the applicants. As to the applicants' argument that the publication of the impugned article had been possible on 16 March 2001 at the earliest as the FPÖ meeting had taken place in the evening of 14 March 2001 and the editorial deadline was every day at 4 p.m., the court found that not even significant time pressure could release a journalist from the obligation to obtain a comment from a person concerned by an article. Section 6(2)(4) of the Media Act was not applicable as the article, between the lines, identified itself with Mr Zack's statement. Even the correct citation of a third person's comment was protected by Article 10 of the Convention only to the extent that it had been made in the context of objective and detached reporting. That decision was served on the applicants' counsel on 14 April 2004.
The President of the Court of Appeal had previously dismissed a challenge by the applicants for bias on the part of two of the judges, Mr Maurer and Mr Krenn. Referring to the Supreme Court's case-law, it found that the mere fact that these two judges had already participated in the taking of the previous appeal decisions in the first and second round of the proceedings was not in itself sufficient to cast doubt on their impartiality.
C. Reopening of the proceedings following communication of the application
Following communication of the application in the present case, the Government informed the Court that the Procurator General's Office (Generalprokuratur) had lodged a plea of nullity for the preservation of the law.
In a judgment of 21 January 2009 the Supreme Court (Oberster Gerichtshof) set aside the Vienna Court of Appeal's judgment of 10 March 2004. It found that the judgment had violated the law as it had wrongly accepted the Regional Court's conclusion that the statement which Mr Amhof had actually made was not equivalent to the statement published in the impugned article and that, therefore, the applicants had failed to prove that they had published a true statement.
In the reopened proceedings, the Vienna Court of Appeal, sitting with Judge Körber as President and Judges Röggla and Jilke, held a hearing on 15 June 2009.
In a judgment of the same day the Vienna Court of Appeal allowed the applicants' appeal against the St Pölten Regional Court's judgment of 16 October 2003. It acquitted the second applicant on the charge of defamation under Article 111 of the Criminal Code and dismissed Mr Amhof's claim for compensation under section 6 of the Media Act against the applicant company. Furthermore, it dismissed Mr Amhof's requests for seizure of the remaining issues of der Standard of 16 March 2001 and for publication of the judgment. Finally, it ordered Mr Amhof to pay all the costs of the proceedings.
The Court of Appeal found that the applicants had published a true statement. The proof of truth for the purpose of Article 111 § 3 of the Criminal Code only required the impugned statement to be correct in its essence, while it was not necessary that it should correspond to the statement made in respect of every detail. In the present case, there was only a very fine line between the statement made by Mr Amhof that the 9th District of Vienna should “remain Austrian” and the impugned statement published by the applicants that the district in question should become “foreigner-free”. In essence both statements expressed the same negative attitude. Moreover, having regard to the contents of the article as a whole, the applicants had also observed the duty of neutral reporting in respect of the statement at issue.
On 25 February 2010 the applicants, on the basis of the judgment of 15 June 2009, lodged an application with the St Pölten Regional Court to have the costs of the proceedings assessed (Kostenbestimmungsantrag).
On 29 March 2010 the St. Pölten Regional Court fixed the applicants' costs of the proceedings at a total amount of EUR 12,760.96. This sum included the costs claimed by the applicant company in respect of the publication of the judgment. Appeal proceedings are currently still pending.
II. RELEVANT DOMESTIC LAW
Article 111 of the Criminal Code (Strafgesetzbuch) reads as follows:
“1. Anyone who, in such a way that it may be perceived by a third party, accuses another of having 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 ...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year 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.”
Section 6 of the Media Act (Mediengesetz), at the time of the events, read as follows:
“6(1) If the presence in a particular medium of the factual elements of the offence(s) of defamation .... is established, the person concerned shall be entitled to claim compensation from the owner of the medium for the damage suffered. ...
(2) No claim shall arise under (1) in the event of ...
4. a truthful reproduction of a statement by a third person if there was a predominant public interest in the knowledge of the statement quoted.”
The following provisions of the Code of Criminal Procedure (Strafprozeßordnung), which also apply in proceedings under the Media Act, are relevant in the context of the present case:
Article 33
“(2) The Procurator General at the Supreme Court may ex officio or on an application by the Federal Ministry of Justice lodge a plea of nullity for the preservation of the law in respect of judgments of criminal courts that are based on a breach or the incorrect application of the law, ... even if the defendant or the prosecution has not made use of the remedy of a plea of nullity within the statutory time-limit. ...”
Article 292
“... If the Supreme Court finds that the plea of nullity for the preservation of the law is well-founded, it shall acknowledge that the judgment delivered in the criminal case in issue ... has breached the law. This finding shall as a rule have no effect on the defendant. However, if a penalty was imposed on the defendant as a result of such a judgment that has been declared null and void, it shall be open to the Supreme Court, at its discretion, either to acquit the defendant or to apply a more lenient sentence or, according to the circumstances, to order the reopening of the criminal proceedings instituted against him.”
Article 363a
“(1) If a judgment of the European Court of Human Rights finds a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (BGBl no. 210/1958), or one of the Protocols thereto, as a result of a decision or order of a criminal court, the proceedings shall be reopened on application in so far as it cannot be ruled out that the violation may have had an adverse effect for the person concerned on the content of a decision of a criminal court.
(2) Applications to reopen proceedings shall be determined in all cases by the Supreme Court. An application may be submitted by the person affected by the violation found and by the Procurator General ...”
COMPLAINTS
The applicants complained under Article 10 of the Convention that the St Pölten Regional Court's judgment of 16 October 2003, as upheld by the Vienna Court of Appeal's judgment of 10 March 2004, had violated their right to freedom of expression. They submitted in particular that the article had contributed to a political debate. It had been written against the background of the electoral campaign for the Vienna Municipal Council and had accused a candidate of the FPÖ of xenophobic attitudes. Although the applicants had wrongly quoted Mr Amhof, the statement was true in that it correctly reflected the essence of what Mr Amhof had said.
They further complained under Article 6 of the Convention that the proceedings had been unfair in that the judges of the Court of Appeal who had decided their case had been biased.
THE LAW
By letter of 16 December 2009 the Government informed the Court of the outcome of the reopened domestic proceedings, without making any specific requests regarding the further examination of the application. In their letter of 15 March 2010 the applicants stated that they “wished to pursue the application in respect of all costs”. By letter of 19 May 2010 the applicants submitted that meanwhile Mr Amhof had retransferred the compensation he had been awarded by the judgment initially complained of plus the costs of his legal representation. Consequently, the applicants only wished to pursue the application in respect of the remaining costs.
The Court observes that in two recent comparable cases it decided to strike the applications out of its list, considering that the matter had been resolved within the meaning of Article 37 § 1 (b) of the Convention (see Verlagsgruppe News GmbH v. Austria (dec.), no. 43521/06, 19 October 2009, and Standard Verlags GmbH v. Austria (dec.), no. 17928/05, 28 January 2010).
Article 37 § 1 of the Convention, in its relevant parts, provides as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
...
(b) the matter has been resolved; or
...
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
In order to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b) and that there is therefore no longer any objective justification for the applicant to pursue the application, the Court reiterates that it must examine, firstly, whether the circumstances complained of directly by the applicant still obtain and secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002, and Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 45, 7 December 2007).
The Court observes that the judgments complained of by the applicants were set aside by the Supreme Court's judgment of 21 January 2009, which referred the case back to the Vienna Court of Appeal for a rehearing.
In the reopened proceedings, the Vienna Court of Appeal followed the Supreme Court's line of reasoning. In its judgment of 15 June 2009 it acquitted the second applicant on the charge of defamation and dismissed Mr Amhof's claims under the Media Act against the applicant company. Furthermore, it ordered Mr Amhof to pay all the costs of the proceedings.
The applicants have thus already obtained a rehearing of the case, an outcome which would normally follow a finding of a violation of the Convention by the Court pursuant to Article 363a of the Code of Criminal Procedure, which also applies in proceedings under the Media Act (see above). A further examination of the present case by the Court is therefore not required.
As to the question whether the effects of a possible violation of the Convention have been redressed, the Court considers that this is the case as regards the second applicant's acquittal. In respect of the applicant company's claim for remaining costs the Court notes that the Vienna Court of Appeal ordered the claimant to pay all the costs of the proceedings. The applicants have meanwhile submitted a request for assessment of these costs. It is not material that those proceedings are still pending (see, mutatis mutandis, Pisano, cited above, § 47). Finally, the Court refers to the two cases cited above in which it has already noted that it is possible to claim compensation for publication costs under the Media Act (see Verlagsgruppe News GmbH (dec.), and Standard Verlags GmbH (dec.), both cited above).
Moreover, the applicants claimed that they had not received compensation for the costs of the Convention proceedings, for which they claimed the amount of EUR 4,434.05, inclusive of value-added tax. Pursuant to Rule 43 § 4 of the Rules of Court, the Court has discretion to award costs if a case is struck out of the list. That the applicants still have a claim for costs does not therefore prevent the application of Article 37 § 1 of the Convention.
Furthermore the Court is satisfied that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, the case should be struck out of the list.
The Court finds it appropriate in the circumstances of the case to make an award in respect of the costs of the Convention proceedings (see Verlagsgruppe News GmbH (dec.) and Standard Verlags GmbH (dec.), both cited above). The Government commented that the applicants' claim for costs was excessive. The Court considers that the costs claimed were necessary and reasonable as to quantum and awards them in full. Furthermore, the Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases;
Decides
(a) that the Government is to pay the applicant company, within three months from the date of this decision, EUR 4,434.05 (four thousand four hundred and thirty-four euros and five cents), value-added tax included, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy