EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 22714/93
Alfred Worm
against
Austria
REPORT OF THE COMMISSION
(adopted on 23 May 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-11) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 12-16). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-31) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 17-30). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(para. 31). . . . . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 32-45) . . . . . . . . . . . . . . . . . . . . .7
A. Complaint declared admissible
(para. 32). . . . . . . . . . . . . . . . . . . . .7
B. Point at issue
(para. 33). . . . . . . . . . . . . . . . . . . . .7
C. Article 10 of the Convention
(paras. 34-44). . . . . . . . . . . . . . . . . . .7
CONCLUSION
(para. 45). . . . . . . . . . . . . . . . . . . . 10
DISSENTING OPINION OF MM. E. BUSUTTIL, A. WEITZEL,
J.-C. SOYER, H.G. SCHERMERS, F. MARTINEZ,
MRS. J. LIDDY, MM. L LOUCAIDES, I. CABRAL BARRETO,
N. BRATZA, G. RESS, K. HERNDL . . . . . . . . . . . . . . . 11
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 12
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is an Austrian citizen, born in 1945 and resident
in Vienna. He was represented before the Commission by Mr. W. Masser,
a lawyer practising in Vienna.
3. The application is directed against Austria. The respondent
Government were represented by their Agent, Ambassador F. Cede, Head
of the International Law Department at the Federal Ministry of Foreign
Affairs.
4. The case concerns the applicant's complaint about his conviction
under the Austrian Media Act for having exercised prohibited influence
on criminal proceedings. The applicant invokes Article 10 of the
Convention.
B. The proceedings
5. The application was introduced on 28 July 1993 and registered on
30 September 1993.
6. On 17 January 1995 the Commission (First Chamber) decided,
pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
the parties to submit written observations on its admissibility and
merits.
7. The Government's observations were submitted on 2 May 1995. The
applicant replied on 23 June 1995.
8. On 18 October 1995 the Commission (First Chamber) decided to
refer the case to the Plenary Commission.
9. On 27 November 1995 the Commission declared the application
admissible.
10. The text of the Commission's decision on admissibility was sent
to the parties on 11 December 1995 and they were invited to submit such
further information or observations on the merits as they wished. The
parties did not submit further observations.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
13. The text of this Report was adopted on 23 May 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
15. The Commission's decision on the admissibility of the application
is annexed hereto.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
17. The applicant, who is a journalist by profession, was working for
"Profil", an Austrian periodical dealing mostly with politics. He
investigated and reported on the case of Mr. Androsch, a former
Minister of Finance, who was involved in the following sets of criminal
proceedings.
18. In 1989 Mr. Androsch was convicted by the Vienna Court of Appeal
(Oberlandesgericht) of having made false statements as a witness in two
incidents. The Court found that he had, before a parliamentary
investigation committee (Untersuchungsausschuß), inter alia wrongly
stated that certain amounts of money on an account belonging to him,
had been put at his disposal by a Mr. S., whereas they had actually
been transferred from anonymous accounts, belonging to him and his
wife. Further, he had, in criminal proceedings against financial
officers charged with abuse of authority, stated that several anonymous
accounts belonged to Mr. S., although they belonged to him, his wife
and his mother.
19. In 1991 the Vienna Regional Criminal Court (Landesgericht für
Strafsachen) conducted criminal proceedings against Mr. Androsch
concerning charges of tax evasion. It held hearings, inter alia, on
25 and 26 May 1991.
On 1 July 1991 the periodical "Profil" published a two-page
article by the applicant, relating to the above proceedings.
20. The article started by describing the atmosphere in the court
room, stating that Mr. Androsch and his counsel displayed a
condescending attitude towards the presiding judge and the public
prosecutor. In contrast, the latter two were described as being well-
prepared and polite. Then the article turned to the anonymous accounts
at issue in the proceedings. It suggested that the device used was
quite simple, because Mr. Androsch, being in office as a Minister of
Finance until January 1981, could count on the misguided loyalty of his
financial officers. After he left, these officers were busy covering
up the whole matter. When this was no longer possible, as a court had
started investigations, Mr. Androsch's advisers delayed the
proceedings. Next, the article turned to Mr. Androsch's defence,
stating that he brought his deceased adoptive father into play, to whom
he had already earlier ascribed black money, which the latter had
actually never owned. The article then stated that inter alia the
Vienna Court of Appeal and the Finance Authorities had already proved
that Mr. Androsch was lying, as regards this question. It continued
as follows:
"Der Geldfluß der sieben Schwarzgeldkonten läßt keine andere Auslegung als die der Steuerhinterziehung durch Androsch zu. Dessen Verantwortung vor Gericht war - nach so vielen Jahren hätte man sich zumindest zurechtgezimmerte Argumente erwartet - blamabel: Immer dann, wenn ihn Richter Zeilinger auf den Punkt fragte, flüchtete er sich entweder in Erinnerungslücken oder schob den toten 'Wahlvater' vor. Sogar der verblichene Sir Arthur Stein, der Erforscher der Seidenstraße, wurde strapaziert: Von ihm will er ein Legat geerbt haben." "The sloshing around of money of the seven "black" accounts permits no other interpretation than that Androsch was evading taxes. His defence before the court - after so many years one would at least have expected tenable arguments to have been made up - was disgraceful: Whenever judge Zeilinger asked him a precise question he escaped into memory lapses or dragged in his deceased 'adoptive father'. Even the late Sir Arthur Stein, the explorer of the silk route, was invoked: He is supposed to have inherited a legacy from him." 21. The article went on to state that Mr. Androsch did not present any new arguments, while his counsel tried to describe him as a victim of politics. Then it turned again to the psychological relationship between the presiding judge and the accused, stating that the presiding judge remained polite, even when the ostentatious self-confidence of the accused obviously unnerved him. Mr. Androsch on the other hand turned more and more to the public in the court room, making general speeches instead of answering precise questions. Finally, the article reported that the proceedings would continue in autumn, in order to take further evidence. It suggested that this would give Mr. Androsch time to reflect on whether it could be reconciled with the principles of the rule of law that a Minister of Finance held black money accounts. 22. Subsequently, the applicant was charged under S. 23 of the Media Act (Mediengesetz) as regards the passage quoted above, for having exercised prohibited influence on criminal proceedings (verbotene Einflußnahme auf ein Strafverfahren). 23. On 12 May 1992 the Vienna Regional Criminal Court acquitted the applicant. It found that the text at issue was not likely to influence the outcome of the proceedings against Mr. Androsch and that it was not established that the applicant had acted with such an intention. 24. The Court recalled that the Vienna Regional Criminal Court sitting as a court of two judges and two lay judges (Schöffengericht) had, on 8 October 1991, convicted Mr. Androsch of having evaded taxes between 1973 and 1981 and had imposed a fine of AS 1,8 million. The Court found that, in establishing whether the incriminated passage had been likely to influence the result of these proceedings, the wording and contents of the article as a whole, as well as the contents of the proceedings reported upon, the person of the accused, Mr. Androsch, and the person of the applicant had to be taken into account. The article, unlike court reports of the scandal press, analysed the conduct of the presiding judge, the public prosecutor, the defence counsel and in particular the accused, Mr. Androsch, almost as a psychologist would do it. 25. Further, the Court found that it was clear for every reader, who was vaguely familiar with the issue, that the applicant, who had been working for "Profil" as a journalist for many years, had intensively dealt with the so called "Causa Androsch" and had frequently reported upon it. It appeared from the article that the applicant assumed that the investigations of the Finance Authorities were correct. He subjected the statements made by the accused at the trial on 25 and 26 May 1991 to a critical discussion from a psychological point of view. However, his way of writing and the wording used were not likely to influence these proceedings. Even to a lay judge, the applicant's person and his activities as a journalist in the "Causa Androsch" were well-known. Thus he would not expect the applicant to give a neutral account of the proceedings. Moreover, it could not be established that the applicant had acted with the intention to influence the outcome of the proceedings, in particular as it appeared from his statements in court that he was convinced that Mr. Androsch would in any case be convicted. 26. On 19 October 1992 the Vienna Court of Appeal, on the Public Prosecutor's appeal, held a hearing in presence of the applicant and his counsel. The applicant was questioned and stated in particular that the first sentence of the incriminated passage, namely that "the sloshing around of money of the seven "black" accounts permits no other interpretation than that Mr. Androsch was evading taxes", was a quotation from the public prosecutor's statement during the trial. The latter had also frequently referred to the judgment of the Vienna Court of Appeal in the proceedings against Mr. Androsch relating to charges of his having made false statements as a witness. 27. At the end of the hearing, the operative part of the judgment as well as the relevant reasons were given orally. The Court convicted the applicant under S. 23 of the Media Act for having exercised prohibited influence on criminal proceedings and imposed a fine of 40 daily rates of AS 1.200 each (i.e. AS 48,000) or 20 days' imprisonment in case of default of payment. 28. The Court found that the applicant had subjected Mr. Androsch's defence, i.e. evidence in criminal proceedings, not only to a critical discussion from a psychological point of view, as assumed by the Regional Court, but to a negative evaluation. It also contested the Regional Court's assumption that everybody including the lay judges knew the applicant's long-standing commitment in the Androsch case and would, therefore, not be influenced by his article. It was in no way certain that the lay judges regularly read "Profil". On the contrary, in spectacular proceedings like the ones at issue, it happened frequently that lay judges followed the reports in papers they did not usually read. There was no doubt that, at least with regard to the lay judges, the reading of the incriminated article was likely to influence the outcome of the criminal proceedings. 29. Moreover, the applicant's expertise and involvement in the subject matter were rather an argument for, not against, establishing that he had written the article with the intention to influence the outcome of the proceedings. He had researched into the case since 1978 and had written more than a hundred articles about it. From the beginning he had been convinced that Mr. Androsch had committed tax evasion. In the incriminated article he had not only criticised Mr. Androsch's statement but had also anticipated the outcome of the proceedings, namely the conviction of the accused. 30. The judgment was served on the applicant on 25 March 1993. B. Relevant domestic law 31. S. 23 of the Media Act (Mediengesetz) is entitled 'prohibited influence on criminal proceedings' (Verbotene Einflußnahme auf ein Strafverfahren) and reads as follows: "Wer in einem Medium während eines gerichtlichen Strafverfahrens nach rechtskräftiger Versetzung in den Anklagestand, ... , vor dem Urteil erster Instanz den vermutlichen Ausgang des Strafverfahrens oder den Wert eines Beweismittels in einer Weise erörtert, die geeignet ist, den Ausgang des Strafverfahrens zu beeinflussen, ist vom Gericht mit Geldstrafe bis zu 180 Tagessätzen zu bestrafen." "Anyone who discusses, subsequent to the indictment, ..., (and) before the first instance judgment in criminal proceedings, the probable outcome of these proceedings or the value of evidence in a way likely to influence the outcome of the proceedings shall be fined by the court up to 180 daily rates." III. OPINION OF THE COMMISSION A. Complaint declared admissible 32. The Commission has declared admissible the applicant's complaint about his conviction under S. 23 of the Austrian Media Act for having exercised prohibited influence on criminal proceedings. B. Point at issue 33. Accordingly, the issue to be determined is whether there has been a violation of Article 10 (Art. 10) of the Convention. C. As regards Article 10 (Art. 10) of the Convention 34. Article 10 (Art. 10) of the Convention 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 and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." 35. The applicant submits that his conviction violated his right to freedom of expression. He contests the necessity of the interference with this right and argues that there was a public interest in reporting about the proceedings against Mr. Androsch, as he was a former Minister of Finance, and the alleged tax evasion concerned the period when he had been in office. Moreover, his aim was not to discuss the value of Mr. Androsch's statements as evidence in the pending criminal proceedings, but to comment on his moral responsibility and the condescending attitude he adopted during the trial. Further, the applicant points out that Mr. Androsch had already in 1989 been convicted of making false statements in the context of the same facts as were relevant in the criminal proceedings at issue. He contests that the incriminated statements were likely to influence the court, as Mr. Androsch's former conviction was a fact which the court had to take into account in any case. In the circumstances of the case, the public interest in reporting on this matter outweighed the interest in protecting the court from undue influence. 36. The Government submit that the prohibition contained in S. 23 of the Media Act is necessary in a democratic society in order to enable the judges, and in particular the lay judges, to exercise their office independently without undue influence through media campaigns. The said provision only incriminates such reports on criminal proceedings as are likely to influence their outcome and are disseminated before the judgment of first instance. In the present case, the applicant, when writing that no other interpretation was possible than that Mr. Androsch was evading taxes, made a statement, which amounted to a typical media prejudgment of the accused. He thereby went beyond the limits of a permissible reporting on the trial. Moreover, the Government submit that the interference complained of was also necessary for the protection of the accused, and in particular to guarantee that the presumption of innocence was respected by the media. Finally, the Government submit that the fine imposed on the applicant was not disproportionate to these aims. 37. The Commission finds that the applicant's conviction amounts to an interference by public authority with the exercise of the applicant's right to freedom of expression, which is in breach of Article 10, (Art. 10) if it does not fall within one of the exceptions provided for in paragraph 2 of this Article, namely being prescribed by law and necessary in a democratic society for one of the aims mentioned in this paragraph (Eur. Court H.R., Observer and Guardian judgment of 26 November 1991, Series A no. 216, p. 27, para. 49). 38. The Commission notes that the contested decision was prescribed by law, i.e. the Austrian Media Act. It served a legitimate aim, namely maintaining the authority and impartiality of the judiciary, which phrase also includes the protection of the rights of litigants (see Eur. Court H.R., Observer and Guardian judgment, loc. cit., p. 28, para. 56; Sunday Times judgment of 26 April 1979, Series A no. 30, p. 34, para. 56). 39. As regards the necessity of the interference complained of, the Commission recalls that the adjective "necessary" within the meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a "pressing social need". 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, embracing both the law and the decisions applying it, even those given by independent courts. The interference complained of has to be looked at in the light of the case as a whole, and it has to be determined whether it was "proportionate to the legitimate aim pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient", due regard being had to the importance of freedom of expression in a democratic society (see Eur. Court H.R., Sunday Times judgment of 26 November 1991, Series A no. 217, p. 29, para. 50; Observer and Guardian judgment, loc. cit., p. 30, para. 59). 40. In the present case, the pursuit of the aims under Article 10 para. 2 (Art. 10-2) has to be weighed against the particular importance of the freedom of expression as far as the press is concerned and the value of open discussion of topics of public concern (cf. Eur. Court H.R., Observer and Guardian judgment, loc. cit.; Barfod judgment of 22 February 1989, Series A no. 149, p. 12, para. 29). In this connection the Commission recalls that it is incumbent on the press to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them (Eur. Court H.R. Lingens judgment of 8 July 1986, Series A no. 103, p. 26, para. 41). 41. The Commission notes that the applicant was accused of having exercised prohibited influence on criminal proceedings as regards one passage of an article published by him in a periodical. He was acquitted at first instance by the Vienna Regional Criminal Court. It found that the applicant had subjected the statements of Mr. Androsch, the accused in the criminal proceedings concerned, to a critical discussion from a psychological point of view. Further, he was a well known journalist who had reported on the Androsch case for years and whom nobody would expect to give a completely neutral account of the proceedings. In conclusion, the Vienna Regional Criminal Court found that the incriminated passage was not likely to influence the outcome of the proceedings. The Vienna Court of Appeal, upon the Public Prosecutor's appeal, quashed the first instance court judgment and convicted the applicant. It found that the applicant had evaluated Mr. Androsch's statements, i.e. evidence in the criminal proceedings against him, in a negative way and anticipated Mr. Androsch's conviction. The Court of Appeal also considered that the incriminated text was likely to influence the outcome of the proceedings at least with regard to the lay judges. 42. The Commission finds that the reasons given by the Vienna Court of Appeal were "relevant" in terms of the aim of maintaining the authority of the judiciary, which includes the interest of the accused to be protected against a prejudgment by the media, in particular where a criminal court is sitting with lay judges. The question remains whether they were "sufficient". 43. The Commission finds that the Vienna Court of Appeal did not weigh the public interest in preventing undue influence of the media on pending criminal proceedings, against the public interest in receiving information relating to the conduct of a former Minister of Finance, who had to face charges of tax evasion. When examining whether the incriminated text was likely to influence the outcome of the proceedings, the said court, unlike the Vienna Regional Criminal Court, did not take the wording and the contents of the article as a whole into account. Moreover, the Vienna Court of Appeal failed to deal with the applicant's defence that he only quoted the public prosecutor's statement at the trial, when writing that there was no other possible interpretation than that Mr. Androsch was evading taxes. The Commission considers that this is an important element, as it is difficult to see how statements which had already been made in court by the Public Prosecutor could be likely to unduly influence the judges. The Commission observes that the incriminated passage is part of a two-page article, which inter alia reports on the background of the criminal proceedings against Mr. Androsch. It follows immediately after reference is made to the fact that Mr. Androsch had already been convicted by an earlier judgment of having made false statements in relation to the ownership of the anonymous accounts, which were at issue in the pending proceedings. Having regard to its specific context, the conclusion suggested by the applicant, namely that Mr. Androsch was evading taxes, appears as merely describing a state of suspicion, which the judges, including the lay judges, were in a position to evaluate independently. In these circumstances, the Commission finds that the reasons adduced by the Vienna Court of Appeal were not "sufficient" for the purposes of Article 10 para. 2 (Art. 10-2). 44. In conclusion the Commission finds that the interference with the applicant's right to freedom of expression was not "necessary in a democtratic society ... for maintaining the authority and impartiality of the judiciary". It was disproportionate to the legitimate aim pursued and therefore not justified under paragraph 2 of Article 10 of (Art. 10-2) on. CONCLUSION 45. The Commission concludes, by 18 votes to 11, that in the present case there has been a violation of Article 10 (Art. 10) of the Convention. Secretary to the Commission President of the Commission (H.C. KRÜGER) (S. TRECHSEL) (Or. English) DISSENTING OPINION OF MM. E. BUSUTTIL, A. WEITZEL, J.-C. SOYER, H.G. SCHERMERS, F. MARTINEZ, MRS. J. LIDDY, MM. L LOUCAIDES, I. CABRAL BARRETO, N. BRATZA, G. RESS, K. HERNDL We agree that the interference with the applicant's right to freedom of expression was prescribed by law and that the essential question is whether the reasons given by the Vienna Court of Appeal were "relevant" and "sufficient" for the purpose of meeting the test of necessity in a democratic society. The Vienna Court of Appeal, in its judgment, recognised the applicant's involvement in the case of Mr. Androsch and his right to criticise Mr. Androsch's statements in defence against the charges of tax evasion. However, weighing the different aspects of the case, the Court of Appeal considered that the applicant's article went beyond permissible criticism and amounted to a negative evaluation of Mr. Androsch's defence which was likely to influence the outcome of the proceedings against him. We are satisfied that the interference complained of was not aimed at restricting the applicant's right to inform the public on the course of criminal proceedings against a well-known former Austrian politician. Moreover, it cannot be considered to have had the result of effectively limiting this right, as it was possible to report on the various aspects of the proceedings against Mr. Androsch, without prejudging their outcome. In particular, the statement that "the sloshing around of money of the seven black accounts permits no other interpretation than that Androsch was evading taxes" cannot be regarded as merely describing the existence of suspicion or, in the absence of any attribution to the public prosecutor, as a mere record of a submission already made in open court by a party to the proceedings, assuming that the public prosecutor did in fact use these words. It amounted to a statement that the applicant considered it beyond doubt that Mr. Androsch was guilty of a criminal offence. It could only be understood by the public in this sense. The statement was published at a time when the court had to reach its verdict and when the impartiality of the lay judges in particular could be affected by extraneous influence. Therefore, bearing also in mind the high profile character of the proceedings, we find that the reasons adduced by the Court of Appeal for the applicant's conviction, were "relevant" and "sufficient" for the purposes of Article 10 para. 2. Furthermore, we are of the opinion that, taking the amount of the fine imposed upon the applicant into account, the interference complained of was "proportionate" to the legitimate aims pursued, of maintaining the authority and, in particular, the impartiality of the judiciary and protecting the right of the accused to the presumption of innocence. We find that, having regard to the margin of appreciation of the member States, the Vienna Court of Appeal was entitled to consider that the applicant's conviction for having exercised prohibited influence on criminal proceedings was "necessary in a democratic society". Accordingly, the interference complained of can be considered to be justified under paragraph 2 of Article 10 of the Convention.
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