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FIRST
SECTION
CASE OF
STANDARD VERLAGS GMBH v. AUSTRIA
(Application
no. 13071/03)
JUDGMENT
STRASBOURG
2
November 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Standard Verlags GmbH v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 12 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13071/03) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Standard Verlagsgesellschaft mbH, a limited
liability company with its seat in Austria (“the applicant”),
on 4 April 2003.
- The
applicant was represented 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 of Foreign
Affairs.
- On
12 May 2005 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant is the owner of the daily newspaper “der Standard”.
- In
the issue of “der Standard” of 1 March 2000 the applicant
published an article in the context of criminal proceedings on
charges of large scale fraud and embezzlement against a former Member
of Parliament of the Austrian Freedom Party (Freiheitliche Partei
Österreichs, “the FPÖ”), Mr Peter
Rosenstingl.
- The
article whose author, D.G., is a well-known court room reporter,
reads as follows:
“‘I had more important things to do’
–
Ewald Stadler claims he was unaware of Rosenstingl’s
loan machinations
As expected, no Freedom Party (FPÖ) politicians
offered their resignation yesterday in connection with the
Rosenstingl trial. (On the contrary: the FPÖ’s
long-serving legal counsel has suddenly become Minister of Justice.)
There is no way back for the two in the dock, however.
Peter Rosenstingl, the former FPÖ member of the National
Assembly, is accused of having colluded in aggravating the collapse
of the poultry firm belonging to his brother Herbert, known as
‘Chicken’. The public prosecutor has assessed the damage
at 240 million schillings. Eleven people in all are said to have
played a part in the chicken debacle. One of them may have been the
former leader of the Lower Austrian branch of the FPÖ, Bernhard
Gratzer.
He knew little about it
One member of Jörg Haider’s former chicken
coop (if this casual expression is permitted) who is still in office
took his turn in the witness box yesterday: Ewald Stadler, now a
member of the Lower Austrian regional government but at the time the
leader of the FPÖ’s parliamentary group. In that capacity
he is alleged to have known even before November 1997 that loans and
guarantees from the Circle of Liberal Entrepreneurs (RFW) nourished
Rosenstingl’s chickens, fed his suppliers and enticed his
creditors. In any event, Peter Rosenstingl claims to have ‘handed
over all documents’ to Stadler. But Stadler has no recollection
of this. ‘As parliamentary group leader I had more important
things to do than worry about lists of that kind’, he retorts.
In short, the loan machinations apparently passed from him, like a
cup, almost without trace.
Stadler claims that he heard about only one loan, in
which Rosenstingl had agreed to borrow 3.5 million schillings from
RFW funds. Stadler asked for an explanation. Rosenstingl duly ‘served
up a cock-and-bull story’ and referred to an investment on
favourable terms and with a better rate of interest in his tax
consultancy firm, Omikron.
He is alleged to have reiterated that version of events
in mid-November 1997 at a meeting of the Lower Austrian party
executive, in the presence of the federal party leaders. And it was
believed. Stadler himself was doubtful and made an early exit.
‘Whether the federal party was informed or not is
a matter on which everyone may now form his or her own view’,
the judge summed up exclusively for all the journalists in the
courtroom. ‘However, it will not settle the criminal
proceedings.’ Irrespective of this, the fraud trial will drag
on further today with witness statements.”
- The
article was accompanied by a photograph of Mr Stadler and the
following text:
“The former leader of the FPÖ’s
parliamentary group, Ewald Stadler, gives evidence defending the
party’s ignorance of the co-financing of the Rosenstingl
collapse”.
- The
criminal proceedings against Mr Rosenstingl received extensive media
coverage. Mr Rosenstingl and a number of co-accused were eventually
convicted of large scale fraud and embezzlement by the Vienna
Regional Criminal Court. Its judgment was confirmed by the Supreme
Court on 25 September 2001.
A. Proceedings under the Media Act
- On
17 August 2000 Mr Stadler brought private prosecution proceedings for
defamation under the Media Act (Mediengesetz) as regards the
statement:
“He [Mr Stadler] is alleged to have known even
before November 1997 that loans and guarantees from the Circle of
Liberal Entrepreneurs (RFW) nourished Rosenstingl’s chickens,
fed his suppliers and enticed his creditors. In any event, Peter
Rosenstingl claims to have handed over all documents to Stadler.”
- On
29 May 2001 the St. Pölten Regional Court (Landesgericht)
held a hearing. Mr Rosenstingl, who had been called as a witness, had
refused to give evidence on the ground that he risked incriminating
himself. According to the minutes, the applicant contested that Mr
Rosenstingl was entitled to refuse giving evidence and requested the
court to impose a fine on him. The Court dismissed the request for
the taking of evidence, finding that it was irrelevant and that the
case was ready for decision. It did not give any detailed reasons.
- At
the close of the hearing, the court gave judgment ordering the
applicant to pay compensation of 15,000 Austrian schillings (ATS,
that is about 1,090 euros (EUR)) to Mr Stadler and to publish the
judgment.
- In
the Regional Court’s view, the incriminated passage meant that
Mr Stadler already new of Mr Rosenstingl’s fraudulent
transactions before November 1997. However, having regard to the
evidence adduced in the criminal proceedings against Mr Rosenstingl,
the court found that there was no indication that Mr Stadler knew
before November 1997 that loans or guarantees of the Ring of Liberal
Entrepreneurs had been transferred to Rosenstingl’s firm. It
followed from the minutes of the trial against Rosenstingl, that the
latter had not claimed to have given all relevant documents to Mr
Stadler, but had only stated to have met another FPÖ politician
in Stadler’s office and to have given documents to that
politician.
- Referring
to Section 6 of the Media Act, the Regional Court found that the
statement at issue fulfilled the elements of defamation (üble
Nachrede) under Article 111 of the Criminal Code as it insinuated
that Mr Stadler had remained inactive despite being aware of
fraudulent transactions. Thus, it accused him of behaviour likely to
lower him in public esteem. Although the incriminated passage
purportedly cited statements of third persons, the applicant company
remained responsible since it had failed to present these quotes
neutrally without identifying itself with their content. The
article’s style and choice of wording did not fulfil the
requirements of a neutral presentation. In any case, the quote was
not correct as Mr Rosenstingl had not claimed to have given Mr
Stadler all relevant documents nor had it been shown that the latter
knew otherwise about the transactions. The applicant had, thus,
failed to prove the truth of the impugned statement.
- On
18 September 2002 the Vienna Court of Appeal (Oberlandesgericht)
dismissed the applicant’s appeal.
- It
noted the applicant’s argument that the article was of a
satirical nature and that the reader, expecting a certain degree of
exaggeration, concluded in essence that Mr Stadler had known more
than he admitted, or could have known more had he made the necessary
investigations on the basis of the documents given to him.
- The
Court of Appeal conceded that D.G.’s court room reports
differed from usual reports of this genre. His irony and sarcasm were
well-known and appreciated by the reader. In the present case
however, the issue was not whether the author had made use of some
degree of exaggeration. He had simply reported facts which were not
true, as no documents at all had been handed over to Mr Stadler.
Furthermore, the court confirmed the Regional Court’s view that
the article had not quoted third persons’ statements correctly
and neutrally.
- Finally,
the Court of Appeal confirmed that the Regional Court had rightly
granted Mr Rosenstingl a right to refuse to give evidence in
accordance with the relevant provisions of the Code of Criminal
Procedure. As the article at issue had reported on the criminal
proceedings against Mr Rosenstingl, it was likely that he would,
inter alia, have to give evidence as regards his fraudulent
transactions. He therefore risked incriminating himself as regards
the charges against him.
- The
decision was served on the applicant’s counsel on 8 October
2002.
B. Proceedings under the Copyright Act and the Civil
Code
- On
14 October 2002 Mr Stadler filed an action under Section 78 of the
Copyright Act (Urheberrechtsgesetz) and under Article 1330 of
the Civil Code (Allgemeines Bürgerliches Gesetzbuch)
requesting the applicant to refrain from publishing his picture
accompanied by the incriminated text, to publish the judgment and to
pay him EUR 2,000 as compensation for non-pecuniary damage. He also
requested a preliminary injunction.
- On
22 November 2002 the applicant and Mr Stadler appeared before the
Vienna Commercial Court (Handelsgericht) and concluded a
partial agreement. The applicant undertook to refrain from publishing
Mr Stadler’s picture accompanied by any text similar to the
impugned statement, and to publish the agreement. The court therefore
limited the hearing to the issue of compensation.
- On
3 December 2001 the Vienna Commercial Court ordered the applicant to
reimburse Mr Stadler’s costs as regards the part of his claim
that was covered by the partial agreement, but dismissed the latter’s
claim for compensation.
- The
Commercial Court, referring to the Supreme Court’s established
case-law as regards the binding force of a conviction in subsequent
civil proceedings (see relevant domestic law and practice, below),
noted that the publication of Mr Stadler’s picture accompanied
by the impugned statement which fulfilled the objective elements of
defamation, had violated his legitimate interests within the meaning
of Section 78 of the Copyright Act. He was, therefore, in principle
entitled to receive compensation if the non-pecuniary damage suffered
went beyond the annoyance usually caused by the unlawful publication
of a picture. However, he had failed to substantiate that he had
suffered any such damage.
- On
16 October 2003 the Vienna Court of Appeal dismissed Mr Stadler’s
appeal.
II. RELVANT DOMESTIC LAW AND PRACTICE
24. Section
6 of the Media Act provides for the strict liability of the publisher
in cases of defamation; the victim can thus claim damages from him.
In this context “defamation” has been
defined in Article 111 of the Criminal Code (Strafgesetzbuch),
as follows:
“1. Anybody who, in such a way that it
may be noticed by a third person, attributes to another a
contemptible characteristic or sentiment or accuses him of behaviour
contrary to honour or morality and such 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. In the case of the offence
defined in paragraph 1 he shall also not be liable if circumstances
are established which gave him sufficient reason to believe that the
statement was true.”
- Section
78 of the Copyright Act, so far as material, provides:
“1. Images of persons shall neither be
exhibited publicly, nor disseminated in any other way in which they
are made accessible to the public, where the legitimate interests of
the person in question or, in the event that they have died without
having authorised or ordered publication, of a close relative would
be injured.”
- Section
1330 of the Civil Code (Allgemeines Bürgerliches
Gesetzbuch) provides as follows:
“1. Anybody who, due to defamation,
suffered a damage or loss of profit, may claim for compensation.
2. The same applies if anyone is
disseminating facts, which jeopardize another person’s
reputation, gain or livelihood, the untruth of which was known or
must have been known to him. In this case there is also a right to
claim a revocation and the publication thereof...”
- It
is the Supreme Court’s constant case-law that a person who has
been convicted in criminal proceedings cannot argue in subsequent
civil proceedings that he has not committed the offence at issue
(lead case 1 Ob 612/95, 17 October 1995, SZ 68/195). The Supreme
Court has also held that a judgment under Section 6 of the Media Act
has this binding effect in subsequent civil proceedings (6 Ob
105/97b, 16 October 1997).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant company complained that the courts’ decisions in both
sets of proceedings violated its right to freedom of expression as
provided in Article 10 of the Convention, which reads 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...
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.”
- The
Government contested that argument.
A. Admissibility
- The
Government argued that the applicant could not claim to be victim as
regards the proceedings under the Civil Code and the Copyright Act in
which it entered into a partial settlement with Mr Stadler (see
paragraph 20 above). Although the Supreme Court’s case-law
concerning the binding effect of penal-law decisions on civil-law
courts may have been one of the reasons for entering into a
settlement, the applicant company would have been free to argue that
the publication of Mr Stadler’s picture did not violate Section
78 of the Copyright Act. Since it chose to enter into a settlement it
could not complain before the Court that its right to freedom of
expression had been violated.
- The applicant company argued that, in the light of the
Supreme Court’s case-law, it had no prospects of success in the
civil proceedings following its conviction under the Media Act.
- The
Court reiterates that where an applicant concludes a settlement in
the domestic proceedings and renounces further use of local remedies,
he or she will generally no longer be able to claim to be a victim in
respect of those matters (see Hay v. the United Kingdom (dec.),
no. 41894/98, ECHR 2000 XI; Powell v. the United Kingdom
(dec.), no. 45305/99, ECHR 2000 V; and Nikishina v. Russia
(dec.), no. 45665/00, 12 September 2000).
- In
the proceedings under the Civil Code and the Copyright Act, the
applicant concluded a partial settlement in which it undertook to
refrain from publishing Mr Stadler’s picture accompanied by any
text similar to the impugned statement. By concluding that
settlement, the applicant accepted the limitation of its right to
freedom of expression and renounced to use available remedies in
respect of the complaint now before the Court.
- In
these circumstances, the Court considers that as far as the civil
proceedings are concerned the applicant cannot claim to be a victim
within the meaning of Article 34 of the Convention. Insofar, its
complaint has to be rejected as being incompatible ratione
personae, pursuant to Article 35 §§ 3 and 4 of the
Convention.
- As
far as the applicant’s complaint relates to the proceedings
under the Media Act, the Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant company limited its submissions to the necessity of the
interference with its right to freedom of expression. It asserted
that the article containing the incriminated statement contributed to
a political debate concerning the possible involvement of leading
representatives of the Freedom Party in the Rosenstingl case.
- The
applicant underlined in particular that the impugned statement had
not accused Mr Stadler of having had positive knowledge of
Rosenstingl’s machinations, but had merely referred to the
allegation of a third party and quoted Rosenstingl as having claimed
to have handed over all documents to Mr Stadler. Moreover, the
applicant emphasised the satirical nature of the article which had
recourse to a certain degree of humoristic exaggeration.
- Finally,
the applicant asserted that the Austrian courts wrongly accepted Mr
Rosenstingl’s refusal to give evidence. The minutes of the
criminal proceedings against Rosenstingl were not conclusive and
could not replace his questioning as a witness.
- The
Government’s observations also concentrated on the necessity of
the interference. They conceded that, in a case like the present one,
concerned as it was with the press exercising its role as “public
watchdog” by criticising a politician, the limits of acceptable
criticism were wider than in respect of a private individual and the
State’s margin of appreciation was narrowly defined. However,
the Austrian courts did not transgress their margin of appreciation
in the present case.
- Referring
to the Court’s case-law relating to the distinction between
facts and value judgments, the Government asserted that the courts
rightly considered the impugned statement as a statement of fact for
which the applicant had failed to adduce proof. The fact that the
article at issue used reported speech to make the allegation against
Mr Stadler was not considered relevant as the applicant had failed to
present the quotation in a neutral manner. The Government contested
the applicant’s explanation that the article was a satire and
the impugned statement was not to be taken literally, arguing that
the article was presented as a court room report placed in the
corresponding section of “der Standard”. In sum, the
courts correctly weighed the applicant’s right to contribute to
a political discussion against Mr Stadler’s interest in the
protection of his reputation. Finally, the sum of compensation
imposed under the Media Act was very modest, namely about 1,090
euros.
- As
to the taking of evidence in the proceedings under the Media Act, the
Government argued that the court’s decision to accept Mr
Rosenstingl’s refusal to give evidence in the proceedings under
the Media Act on the ground that he might incriminate himself, was
justified since the criminal proceedings against him had not been
terminated by final judgment when he was called as a witness on 29
May 2001.
2. The Court’s assessment
- The
present case, so far as it has been declared admissible, concerns
proceedings under the Media Act brought by Mr. Stadler against the
applicant in respect of an article published in “der Standard”
on 1 March 2000. The applicant was ordered to pay Mr. Stadler
compensation and to publish the judgment. It is undisputed that the
courts’ judgments in these proceedings constituted an
interference with the applicant’s right to freedom of
expression.
- It
is not in dispute either that the interference was “prescribed
by law” and served a legitimate aim, namely the protection of
the rights and reputation of others.
- The
parties’ argument concentrated on the necessity of the
interference. As regards the general principles relating to freedom
of the press in the context of political criticism and the question
of assessing the necessity of an interference with that freedom, the
Court refers to the summary of its established case-law in the cases
of Feldek v. Slovakia (no. 29032/95, §§ 72-76,
ECHR 2001 VIII, with further references) and Scharsach and
News Verlagsgesellschaft v. Austria (no. 39394/98, § 30,
ECHR 2003 XI).
- In
accordance with its case-law, the Court will examine whether the
reasons adduced by the domestic courts were “relevant and
sufficient” and whether the interference was proportionate to
the legitimate aim pursued. In so doing the Court will have regard to
the domestic courts’ margin of appreciation.
- As
it did in similar cases, the Court will take the following elements
into account: the position of the applicant, the position of Mr
Stadler who brought the proceedings and the nature and subject matter
of the article at issue (see, for instance, Scharsach and News
Verlagsgesellschaft, cited above, § 31, and Jerusalem v.
Austria, no. 26958/95, § 35, ECHR 2001 II).
- The
applicant company is the owner of one of the leading daily newspapers
in Austria. In that connection the Court reiterates that the press,
in order to play its vital role of “public watchdog” has
the duty to impart – in a manner consistent with its
obligations and responsibilities – information and ideas on all
matters of public interest (see, among many other authorities, De
Haes and Gijsels v. Belgium, judgment of 24 February 1997,
Reports of Judgments and Decisions 1997 I, pp. 233-34, §
37).
- Mr
Stadler is a well-known politician, who was at the material time the
leader of the parliamentary group of the Austrian Freedom Party.
According to the Court’s well-established case-law the limits
of acceptable criticism are wider as regards a politician than as
regards a private individual (see, for instance, Lingens v.
Austria, judgment of 8 July 1986, Series A no. 103, p. 26, §
42).
- Turning
to the nature and subject matter of the article, the Court notes that
the article was not a court room report but rather a political
satire. Its aim was not to inform readers on the conduct of the
criminal proceedings against Mr Rosenstingl, but to raise and discuss
the question whether Mr Stadler or other leading representatives
of the Freedom Party knew or should have known of Rosenstingl’s
machinations with funds of the Circle of Liberal Entrepreneurs. By
dealing with the interrelationship between a political party and an
organisation close to that party on the one hand and the accused of a
large-scale fraud case on the other, the article addressed a subject
of general interest. It therefore concerned a sphere in which
restrictions on freedom of expression are to be strictly construed.
Accordingly, the Court must exercise caution when the measures taken
by the national authorities are such as to dissuade the press from
taking part in the discussion of matters of public interest (see, for
instance, Thoma v. Luxembourg, no. 38432/97, § 58, ECHR
2001 III, and Jersild v. Denmark, judgment of 23
September 1994, Series A no. 298, pp. 25-26, § 35).
- The
Austrian courts considered the impugned statement as a statement of
fact for which the applicant had failed to adduce proof. They found
that the article at issue had raised the allegations against Mr
Stadler by quoting statements purportedly made by third persons
without presenting these quotes in a neutral manner. As regards the
statement purportedly made by Mr Rosenstingl to “have handed
over all documents” to Mr Stadler the courts found that the
quote was incorrect since it followed from the minutes of the
Rosenstingl trial that he had merely claimed to have handed over
certain documents to a third person in Mr Stadler’s office.
- The
Court is not convinced by the domestic courts’ approach. It
disregards the nature of the article as a political satire and its
main thrust which was to cast doubt on the Freedom Party’s
ignorance of Mr Rosenstingl’s machinations.
- As
to the statement allegedly made by Mr Rosenstingl, the Court observes
that the domestic courts accepted his refusal to give evidence on the
ground that he risked incriminating himself in the criminal
proceedings which were pending against him when he was called as a
witness. The acceptance of his refusal to testify therefore served to
protect his rights under Article 6 §§ 1 and 2 of the
Convention. However, it appears problematic that the courts based
their finding that the quotation was incorrect on the minutes of the
trial against Mr. Rosenstingl. There is force in the applicant’s
argument that the minutes were not conclusive, since the question
which documents he had handed over in Mr Stadler’s office and
whether he handed them over to Mr. Stadler himself or to a third
person was not a central issue in the criminal proceedings.
- The
domestic courts criticised in particular that the article had failed
to present the above quotes in a neutral manner. Looking at the
contents of the article as a whole, the Court finds it reasonable to
say that it adopted – at least in part – the contents of
the quotations. However, journalists are not required systematically
and formally to distance themselves from the content of a quotation
that might insult or provoke others or damage their reputation since
such a duty would not be reconcilable with the press’s role of
providing information on current events, opinions and ideas (see,
Thoma, cited above, § 64).
- The
Court observes that the article at issue gave room to Mr Stadler’s
version of the events, namely that he had only known of one loan from
funds of the Circle of Liberal Entrepreneurs by November 1997, had
requested an explanation and had been deceived by the “cock-and-bull”
story Mr Rosenstingl had come up with. Finally, the article raised
questions and allegations but did not claim that any facts were
actually proven. This is demonstrated by the wording of the impugned
statement which says that Mr Stadler “is alleged to have
known” about Rosenstingl’s machinations. Moreover, the
article’s concluding paragraph – by quoting the presiding
judge of the Rosenstingl trial – invites the reader to form his
own opinion on the Freedom Party’s involvement in the
Rosenstingl case.
- Having
regard to all these elements, the Court considers that the impugned
statement seen in its proper context constituted fair comment on
matters of public interest. It is therefore to be regarded as a value
judgment rather than as a statement of fact (see, for instance
Jerusalem, cited above, § 44). Its essential content
was to raise the question whether Mr Stadler knew or should have
known of Rosenstingl’s machinations. That value judgment was
not excessive since it had a certain factual basis even in
Mr Stadler’s own admissions.
- In
conclusion, the Court finds that the reasons adduced by the domestic
courts were not “relevant and sufficient” to justify the
interference. It follows that the interference was not “necessary
in a democratic society” with the meaning of Article 10 §
2 of the Convention.
- There
has accordingly been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the Court’s wrongly accepted
Mr Rosenstingl’s refusal to give evidence. Article 6 §
1, so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair ... hearing ... by [a] ... tribunal...”
- The
Government submitted the argument set out above under Article 10.
The applicant contested the Government’s view.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to the finding relating to Article 10 of the Convention, the
Court considers that it is not necessary to examine whether, in this
case, there has been a violation of Article 6 (see, among other
authorities, Jerusalem, cited above, § 51).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed a total amount of 35,089.08 euros (EUR) in respect
of pecuniary damage. This sum is composed of EUR 1,520.64 for the
publication of the judgment, EUR 1,090.09 for compensation paid to
Mr Stadler and EUR 11,078.35, inclusive of value-added tax
(VAT), for reimbursement of the latter’s legal costs. Moreover,
the sum contains an amount of EUR 21,400 which the Vienna Court of
Appeal, by decision of 26 November 2003, ordered the applicant
to pay for failure to publish the judgment given in the proceedings
under the Media Act in correct form. The applicant did not claim any
compensation for non-pecuniary damage.
- The
Government commented that the applicant had included surcharges in
respect of the publication of the judgment which it had failed to
justify. Moreover, the amount of EUR 21,400 imposed as a fine by in
separate enforcement proceedings was not to be reimbursed since it
had been caused by the applicant’s failure to publish the
judgment properly. Finally, they argued that the costs reimbursed to
Mr Stadler were excessive and were not properly itemised.
- The
Court observes that the documents submitted by the applicant do not
allow verification of the correctness of the surcharges claimed in
respect of the publication of the judgment. Furthermore, it agrees
with the Government’s view that the fine of EUR 21,400 is not
to be reimbursed and that the costs reimbursed to Mr Stadler are
excessive. Making an assessment on an equitable basis, the Court
awards the applicant EUR 8,000 inclusive of VAT, in respect of
pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 6,861.32, inclusive of VAT, for the costs
and expenses incurred before the domestic courts and EUR 5,361.75,
inclusive of VAT, for those incurred before the Court.
- The
Government asserted that the bill of fees submitted by the applicant
in respect of the domestic proceedings was not detailed enough to
verify whether the fees had been calculated correctly. In any case,
the total amount claimed was excessive. As to the costs of the
Convention proceedings, the Government contended that the rate
applied was incorrect and that, consequently, the amount claimed was
excessive.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum.
- In
the present case, regard being had to the information in its
possession and the above criteria, the Court considers it reasonable
to award EUR 5,000 in respect of costs incurred in the domestic
proceedings and EUR 3,000 in respect of costs incurred in the
Convention proceedings.
- In
sum, the Court awards a total amount of EUR 8,000, inclusive of VAT,
under the head of costs and expenses.
C. Default interest
- 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
- Declares unanimously the complaint that the
courts’ decisions in the proceedings under the Media Act
violated the applicant’s right to freedom of expression
admissible and the remainder of the application inadmissible;
- Holds unanimously that there has been a
violation of Article 10 of the Convention;
- Holds by four votes to three that there is no
need to examine the issue separately under Article 6 of the
Convention;
- Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 8,000
(eight thousand euros) in respect of pecuniary damage and EUR 8,000
(eight thousand euros) 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 November 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Mr Rozakis,
Mrs Tulkens and Mr Spielmann is annexed to this judgment.
C.L.R.
S.N.
PARTLY DISSENTING OPINION OF JUDGES ROZAKIS, TULKENS AND
SPIELMANN
While
we agreed with the other members of the Court that in the
circumstances of the case there has been a violation of Article 10 of
the Convention, we are unable to follow them when they considered
that the complaint of the applicant company under Article 6 of the
Convention was absorbed by the complaint under Article 10, and,
therefore, there was no need to examine it separately.
We
consider that although the applicant company raised the issue of the
refusal of the domestic courts to hear a witness, both as an aspect
of its complaint under Article 10, and, separately, as a complaint
under Article 6, its reference to the refusal of the courts to hear
the witness with regard to its complaint concerning freedom of
expression merely supported the main argument of the applicant that
the domestic courts did not proceed to a proper assessment of the
interests involved in the case, namely the interest of the applicant
to a free expression of its opinions vis-à-vis the interest of
its opponent, to whom the incriminated statement referred.
The
Chamber dealt with the issue of the refusal of the witness to give
evidence on the ground that he risked incriminating himself while
considering the Article 10 issue (see paragraph 52 of the judgment).
In our view the Chamber should have dealt with that issue separately,
under Article 6 of the Convention, which was also raised by the
applicant, since both the merits of the complaint and the answer
given by the Court (paragraph 52) pertained more to a discussion
under Article 6, rather than under Article 10.
For
these reasons, we believe that the complaint under Article 6 had to
be examined separately, as a distinct procedural issue of the case.
