FIRST SECTION
DECISION
Application no. 17928/05
by STANDARD VERLAGS GMBH
against Austria
The European Court of Human Rights (First Section), sitting on 28 January 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 17 May 2005,
Having regard to the information submitted by the respondent Government and the comments submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Standard Verlags GmbH, is a limited liability company with its seat in Vienna. It was represented before the Court by Ms M. Windhager, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, 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 proceedings giving rise to the application
The applicant company is the owner of the daily newspaper der Standard.
In the issue of 14 April 2003 der Standard published an article in its regular “commentary” section, written by Mr Skocek, a well-known sports journalist. The article read as follows:
“Idea and method
Peter Westenthaler probably cannot do anything else. That is the idea, if indeed we can speak of an idea in connection with Peter Westenthaler: just as a stone falls to the ground when released from the hand, Westenthaler and his ilk only think of their own kind.
The idea has elevated the former leader of the FPÖ's parliamentary group to a position on the management board of the Federal Football League. For Frank Stronach does not forget his own people. Westenthaler has now brought the former FPÖ media man Kurt Lukasek over to join him at the League as his 'personal assistant'. Gernot Rumpold, the former leading member of the FPÖ's 'young men's wing', may, it seems, be hoping to receive orders from the League.
What is new is not the involvement of senior politicians in professional football – Anton Benya, the former president of the Austrian Trade Union Federation and parliamentary speaker, was always a backer of Rapid Vienna – but the method for putting the idea into practice: first we get ourselves in, then we set the whole thing up for ourselves. This method works in exactly the same way in the Football League as in the pension or university reforms. Westenthaler sets the Football League up for himself as though it belongs to him, just as Günter Stummvoll (to name but one) does in relation to the pension reform. The transformation of the Federal Football League's calm waters into a shallow blue lagoon is merely a speck on the national canvas. And this change of colour is followed by a change of meaning. Cluelessness becomes a trademark – on taking up his job on the board, the lobbyist Westenthaler was free of oppressive knowledge about the meaning of 'lobbyist'. A joint league with Switzerland, the likely benefits of which are unknown to anyone? Let's carry out a study – other people are paying anyway!
Westenthaler is part of a trendy gang, at home in the Viennese night spots, who are taking football hostage. Stronach, the experienced lobbyist, is a sponsor of this. Someone will benefit – but certainly not the Federal Football League.”
On 28 April 2003 Mr Westenthaler brought proceedings under the Media Act (Mediengesetz) against the applicant company. He submitted in particular that the following statements made in the article were untrue and amounted to defamation or insult:
“he cannot do anything else but think of his own kind”;
“we set the whole thing up for ourselves”;
“he sets the Football League up for himself as though it belongs to him”;
“he transforms the Football League into a blue lagoon”;
“cluelessness [is his] trademark”; and
“he orders studies [at the Football League's expense], which are useless”.
He sought compensation under section 6 of the Media Act. Furthermore he requested the withdrawal of the issue of der Standard of 14 April 2003 and an order for publication of the judgment.
In its submissions in reply the applicant company asserted that the impugned statements contained value judgments which, in the circumstances, did not exceed the limits of permissible criticism.
A first judgment of the St Pölten Regional Court, which had refused Mr Westenthaler's claim, was set aside by the Vienna Court of Appeal. As the applicant company had moved its seat to Vienna, the case was subsequently transferred to the Vienna Regional Criminal Court.
In a judgment of 29 April 2004 the Vienna Regional Criminal Court granted Mr Westenthaler's claim. Relying on section 6 of the Media Act, it found that the article fulfilled the requirements of the offences of defamation and insult and ordered the applicant company to pay Mr Westenthaler 4,500 euros (EUR) as compensation. In addition it ordered the withdrawal (Einziehung) of all copies of der Standard of 14 April 2003 which were still available for distribution. Finally, it ordered the publication of its judgment and held that the applicant company had to bear the costs of the proceedings and the publication costs.
The Regional Court found that, given the negative tone of the article as a whole, the average reader would understand the impugned statements as disparaging, insulting and ridiculing Mr Westenthaler's person and professional performance. The article accused him of having used his position at the Austrian Federal Football League (Fußball-Bundesliga – “the AFFL”) to pursue exclusively his and his former party colleagues' personal interests. Moreover, it contained the reproach that he had chosen Mr Lukasek for purely personal motives without any regard to professional qualifications. In addition, the article accused Mr Westenthaler, without giving any factual information, of being characterised by “cluelessness” and wasting the AFFL's money on a useless study.
In sum, the value judgment conveyed by the article, namely that Mr Westenthaler was inferior (minderwertig) as a person and as regards his professional performance, did not have a sufficient factual basis. Nor did the statements at issue taken separately have the required factual basis. The article as a whole, given its overall negative tone, amounted to an unsubstantiated attack on Mr Westenthaler. Since Mr Westenthaler was not criticised in his capacity as a politician but as regards his activity in the AFFL, he did not have to display a particularly high degree of tolerance.
On 10 November 2004 the Vienna Court of Appeal dismissed an appeal by the applicant company. Its judgment was served on the applicant company's counsel on 2 December 2004.
B. Reopening of the proceedings following communication of the application
Following communication of the application in the present case, the respondent Government informed the Court that the Procurator General's Office (Generalprokuratur) would lodge an application for the extraordinary reopening of the proceedings.
In a judgment of 29 April 2008 the Supreme Court (Oberster Gerichtshof) ordered the extraordinary reopening of the proceedings, set aside the judgments of 29 April and 10 November 2004 and ordered a rehearing of the case.
Referring to Article 362 § 1 (2) of the Code of Criminal Procedure (Strafprozeßordnung), the Supreme Court found that there were serious doubts regarding the correctness of the judgments in question. These doubts concerned in particular the assessment of the contents of the article at issue. In particular it appeared that the courts, faced with a choice of various possible interpretations of the contents of the article, had chosen the one which was most disadvantageous to the applicant company when considering that the article was merely aimed at disparaging, insulting and ridiculing the claimant's person and professional performance. Furthermore, the courts had failed to pay sufficient attention to the case-law of the European Court of Human Rights. For instance, the finding that the statement concerning the employment of Mr Lukasek amounted to an excessive value judgment did not comply with the Court's case-law. Mr Lukasek was a former employee of the FPÖ and therefore it could not be said that the statement lacked any factual basis. As the article did not only criticise Mr Westenthaler but voiced general criticism in respect of politically motivated appointments, mentioning the claimant only as one example, it contributed to a public debate. The claimant was a public figure and therefore had to display a higher degree of tolerance towards criticism.
In the reopened proceedings, the Vienna Regional Criminal Court held a hearing on 8 July 2008. In a judgment of the same date it dismissed Mr Westenthaler's claims and ordered him to pay the costs of the proceedings.
Following the approach outlined by the Supreme Court, it found that the impugned article was a commentary voicing strong criticism of the claimant but also of a general phenomenon, namely politically motivated appointments. The value judgments contained in it had a sufficient factual basis. Given that Mr Westenthaler was a public figure, he had to display a higher level of tolerance towards criticism.
On 15 December 2008 the Vienna Court of Appeal dismissed an appeal by the claimant.
II. RELEVANT DOMESTIC LAW
The following provisions of the Code of Criminal Procedure, which also apply to proceedings under the Media Act, are relevant in the context of the present case:
Article 362
“(1) The Supreme Court shall be entitled, after hearing the opinion of the Procurator General, as an exceptional measure and without being bound by the conditions set out in Article 353, to order the resumption of criminal proceedings for the benefit of a person convicted of a serious or a lesser indictable offence, where
1. ...
2. following an inspection of the case file, on an application to that end by the Procurator General, serious doubts arise as to the correctness of the facts underlying the judgment, which cannot be dispelled by means of individual inquiries ordered by the Supreme Court.”
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 applicant company complained under Article 10 of the Convention that the Vienna Regional Criminal Court's judgment of 29 April 2004, as upheld by the Vienna Court of Appeal's judgment of 10 November 2004, violated its right to freedom of expression. It submitted in particular that the article concerned an issue of public interest, namely the system of giving former politicians well-paid positions in other public areas irrespective of their qualifications. Moreover, the applicant company complained under Article 6 of the Convention about the courts' refusal to hear a number of witnesses it had named in order to show that the statements in issue had a sufficient factual basis.
THE LAW
In a letter of 30 March 2009 the applicant company informed the Court that it intended “to pursue the application in respect of the costs of the Convention proceedings.” In a letter of 4 August 2009 the applicant company submitted a claim for pecuniary damages relating to the costs for the publication of the impugned judgment of 29 April 2004.
The Court refers to Article 37 § 1 of the Convention, which 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 his application, the Court considers 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 [GC] (striking out), 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 applicant company were set aside by the Supreme Court's judgment of 29 April 2008, which referred the case back to the lower courts for a rehearing. In its reasoning, the Supreme Court referred to the Court's case-law under Article 10 and found that the court decisions complained of by the applicant company failed to comply with Convention standards.
In the reopened proceedings, the Vienna Regional Criminal Court followed the Supreme Court's line of reasoning and consequently dismissed Mr Westenthaler's claims under the Media Act in a judgment of 8 July 2008. The Vienna Court of Appeal, in a judgment of 15 December 2008, dismissed the claimant's appeal. That judgment has become final.
The applicant company has 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 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 have been redressed, the Court notes that the applicant company claimed that it has not received compensation for the costs incurred for the publication of the judgment of 29 April 2004. The Government commented that the applicant company has not shown that it had been refused reimbursement of these costs. The Court refers to the case of Verlagsgruppe News v. Austria (dec.) (no. 43521/06, 19 October 2009) in which it has already noted, in respect of a comparable situation, that it is possible to claim compensation for publication costs under the Media Act. The applicant has not submitted any reasons which would prevent it from making such a claim. The Court is therefore satisfied that the applicant can claim redress for the costs of the publication of the impugned judgment.
Moreover, the applicant company claimed that it had not received compensation for the costs of the Convention proceedings, for which it claimed the amount of EUR 3,602.97, 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 applicant company still has 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 (Rule 43 § 4). The Government commented that the applicant company's claim for costs was excessive. The Court considers that they 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 3,602.97 (three thousand six hundred and two euros ninety-seven 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