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FIRST
SECTION
CASE OF STANDARD VERLAGS GMBH v. AUSTRIA (No. 3)
(Application
no. 34702/07)
JUDGMENT
STRASBOURG
10
January 2012
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 (no. 3),
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34702/07)
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 Verlags GmbH (“the applicant company”),
on 3 August 2007.
2. The
applicant company was
represented by Ms M. Windhager, a lawyer practising in Vienna. The
Austrian Government (“the Government”) were represented
by their Agent, Ambassador H. Tichy, Head of the International Law
Department at the Federal Ministry for European and International
Affairs.
3. The
applicant company alleged a violation of the right to freedom of
expression.
- On
20 March 2009 the President of the
First Section decided to give notice of the application to the
Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant company is a limited liability company based
in Vienna.
- The
applicant company is the owner of the daily
newspaper Der Standard. In its issue of 4 April 2006, in the
economics section, the applicant company published
an article dealing with the investigation into losses incurred by
Hypo Alpe-Adria Bank. The article reads as follows:
“Haider’s Hypo now also facing criminal
investigation
After the Financial Market Authority, the prosecution
service is now also looking into allegations of embezzlement against
Hypo Alpe-Adria Bank. Jörg Haider has accused the judicial
authorities of being overzealous and politically motivated.
Klagenfurt – Following the discovery of
massive speculative losses from swap deals, the floodgates are
threatening to open at Carinthia’s Hypo Alpe-Adria Bank. On
Monday the Klagenfurt public prosecutor’s office initiated an
investigation in respect of Hypo senior managers. Chief public
prosecutor Gottfried Kranz said that the investigation, concerning
suspected embezzlement, had been launched by the prosecution service
of its own motion and that it would take the findings of the
Financial Market Authority audit into account.
Regional governor Jörg Haider criticised the
“judicial authorities’ overzealousness” and spoke
of a “politically motivated ploy to deflect attention away from
the Bawag scandal”. His deputy Martin Strutz described the 328
million euros lost as a result of the speculation as a “molehill
that should not be made into a mountain”.
Wolfgang Kulterer, of Hypo Alpe-Adria’s executive
board, and Jörg Haider, who represents Hypo’s shareholders
and also (through Landesholding) performs a supervisory function at
the bank, had previously blamed the speculative losses of 328 million
euros on an individual member of the bank’s treasury
department, Christian Rauscher, the son of a former SPÖ regional
government member with responsibility for finance. In 2004 Rauscher
was not dismissed but merely demoted and transferred, being relieved
of his duties only after the incident of the losses had become known.
Rauscher had been in charge of the treasury department,
together with Andreas Zois, in 2004. The department was, however,
under Kulterer’s personal authority as chairman of the
executive board. To relieve Kulterer of his responsibilities as
regards the treasury department, Josef Kircher was brought in to join
Günther Striedinger and Thomas Morge on the Hypo board in 2004.
At the same time, the 25% managing shareholder of Confida Holding,
Karl-Heinz Moser, was promoted to become chairman of the Hypo
supervisory board. Confida’s Klagenfurt subsidiary, Confida
Treuhand GmbH, audited Hypo’s accounts. The 2004 financial
statements, in which the massive speculative losses were intended to
be adjusted, were signed by the Confida auditors Walter Grojer and
Robert Zankl, the former of whom frequently crops up in circles close
to Haider. As the swap losses were evidently too large-scale for
Confida’s Klagenfurt subsidiary to handle, the audit firm
Deloitte & Touche was consulted and promptly informed the
Financial Market Authority.
Meanwhile, Hypo’s flotation, which surprisingly
had recently been brought forward to 2006, is very much up in the
air. How matters are to proceed will now probably be on the agenda of
Hypo’s shareholder meeting on Wednesday.
Against this background, Hypo Alpe-Adria’s
interest in Bank Burgenland also appears in a new light. In 2004 Hypo
submitted the last and the best bid, but suddenly withdrew its offer.
Buying Bank Burgenland would have made sense because at the time it
had approximately 300 million euros in losses carried forward in its
accounts, which would have allowed Hypo to save on capital-gains tax.
It is possible that the acquisition failed to materialise because of
the substantial losses from the botched swap transaction.”
- On
16 June 2006 Mr Rauscher brought proceedings against the applicant
company for disclosure of his identity in breach of section 7a of the
Media Act (Mediengesetz). He submitted that he was not a
public figure and that his position in the bank had not been such as
to justify the disclosure of his name. He asserted that when
authorising the transactions at issue he had acted in accordance with
his instructions and under the supervision of his superior’s
and the bank’s risk management. The publication of his name had
had negative repercussions on his professional advancement and had
not been justified by any public interest.
- In
its submissions in reply, the applicant company contended that the
article had not depicted the claimant as the person responsible for
the losses but rather as the “scapegoat”. The public
interest in the disclosure of his name outweighed his private
interests since he had held a leading position in the bank and there
was also a connection with the political sphere on account of his
father’s position as a former regional government member
responsible for finance (Finanzlandesrat). Moreover, the
article had reported on the issue in a neutral manner.
- By
judgment of 18 July 2006 the Vienna Regional Criminal Court
(Landesgericht für Strafsachen) dismissed Mr Rauscher’s
action.
- It
noted that the claimant had been head of Hypo Alpe-Adria’s
treasury department which had incurred losses of 288 to 328 million
euros (EUR) in 2004. It also noted that the article, which reported
on the investigation into embezzlement by the public prosecutor’s
office and mentioned the claimant’s full name as the person who
was being blamed for these losses, contained the information that the
claimant was suspected of a criminal offence.
- The
Regional Court observed that section 7a(1) of the Media Act required
a weighing of the claimant’s interest in the protection of his
identity and the public interest in its disclosure.
- It
noted that the claimant, who had lost his job at Hypo Alpe-Adria, was
unemployed. The mentioning of his name in the context of the
speculation scandal as being suspected of the criminal offence of
embezzlement was certainly detrimental to his professional
advancement within the meaning of section 7(2)(2) of the Media Act.
However, it had to be assumed that the claimant’s former
position and activity at Hypo Alpe-Adria was known in banking and
business circles even without the publication of his name in Der
Standard.
- It
remained to be examined whether there was an overriding public
interest in the disclosure of the claimant’s name. The court
noted that it had heard the claimant as a witness and had – on
the basis of his submissions – found that the following facts
were established. Forty-five per cent of Hypo Alpe-Adria was owned by
the Land of Carinthia. Between May and November 2004 the bank
had incurred losses of 288 to 328 million euros as a result of
foreign currency speculations. The claimant had been the head of the
bank’s treasury department from 1996 until 2006, when he had
terminated his employment on his own initiative. In his capacity as
head of the treasury he had had to authorise or refuse foreign
currency transactions. The losses had thus been incurred under his
responsibility. He had only been answerable to the bank’s
executive board, which consisted of three members. The claimant’s
father had been a regional government member responsible for finance
until 1996. While the claimant was head of the bank’s treasury,
his father had been on the bank’s supervisory board.
- The
Regional Court accepted that the claimant, although having been a
senior employee of the bank, was not a public figure. Thus, he did
not have “a position in society” within the meaning of
section 7a(1) of the Media Act, which would justify the publication
of his name. Nor did the fact that his father had held such a
position justify the disclosure of the claimant’s name.
- Nevertheless,
the Regional Court held that there was a connection between the
claimant’s professional activity and public life for the
purposes of this provision: as the Land owned 45% of the bank,
the Land and consequently the taxpayer had to carry a
considerable share of the losses. The claimant had been in a leading
position, being responsible for the very department which had caused
the losses. The public, or in other words, the taxpayer thus had an
overriding interest in receiving information about the identity of
those who were responsible for the enormous losses. Consequently, Der
Standard had been entitled to mention the claimant’s name.
- On
14 February 2007 the Vienna Court of Appeal (Oberlandesgericht)
granted the claimant’s appeal and ordered the applicant company
to pay 5,000 euros (EUR) in compensation to the claimant and to
reimburse his procedural costs.
- The
Court of Appeal agreed with the Regional Court that the claimant had
been presented as someone suspected of embezzling a large sum of
money. However, it found that the Regional Court had wrongly weighed
the conflicting interests at issue:
“The Regional Court’s finding that the
public interest in the publication of the claimant’s name
outweighed his interest in the protection of his identity cannot,
however, be endorsed. The former must be assessed against an
objective standard and, in particular, with reference to the identity
of the person concerned; for that reason the mere public interest in
the reporting of a crime does not by itself suffice. In accordance
with settled case-law, when assessing whether the identity of persons
listed in section 7a(1) of the Media Act may be revealed, a strict
standard must be applied, especially as the general public has, in
principle, no legal right to know the identity of the persons
concerned. ...
At the time the article was published, the investigation
into the “Hypo Alpe-Adria affair” was still in the early
stages. According to the claimant, no proceedings had yet been
brought against him, and the subject matter of the article in
question was only the rumours of accusations against him by two
senior bank officials. However, at this time there was no independent
value in the disclosure of the claimant’s name that would have
outweighed the legitimate interest in protecting his anonymity. The
claimant’s name was clearly disclosed in order to make a
connection with his father, the former regional government member
responsible for finance, and by doing so create a “story”
which would satisfy the public’s curiosity and appetite for the
sensational to a high degree. In practice, the disclosure of the
claimant’s name had no informative value whatsoever and so the
weighing of interests must operate in favour of the claimant. ...
The Regional Court is right in stating that the public
has a very substantial interest in finding out who is responsible for
these enormous losses. However, this does not justify the disclosure
of the claimant’s identity in a situation where the suspicions
are so vague and uncertain. ...
Since the first-instance court found that the
publication of the claimant’s name had had considerable
negative consequences for him, and taking into account the gravity of
the accusation and the wide circulation of Der Standard,
compensation in the amount of EUR 5,000 seems to be appropriate. ...”
II. RELEVANT DOMESTIC LAW
- Section
7a of the Media Act, so far as material, provides as follows:
“(1) Where publication is made, through
any medium, of a name, image or other particulars which are likely to
lead to the disclosure to a larger not directly informed circle of
people of the identity of a person who
1. has been the victim of an offence
punishable by the courts or
2. is suspected of having committed, or has
been convicted of, a punishable offence, and where legitimate
interests of that person are thereby injured and there is no
predominant public interest in the publication of such details on
account of the person’s position in society, of some other
connection with public life, or of other reasons, the victim shall
have a claim against the owner of the medium (publisher) for damages
for the injury suffered. ....”
(2) Legitimate interests of the victim shall
in any event be injured if the publication
1. in the case of subsection (1)1 is such as
to give rise to an interference with the victim’s strictly
private life or to his or her exposure,
2. in the case of subsection (1)2 relates to
a juvenile or merely to a lesser indictable offence or may
substantially prejudice the victim’s advancement.
...”
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
- On
10 July 2003 the Committee of Ministers of the Council of Europe
adopted Recommendation Rec(2003)13 on the provision of information
through the media in relation to criminal proceedings. The Appendix
to that Recommendation contains the following principles:
“Principle 1 - Information of the public via
the media
The public must be able to receive information about the
activities of judicial authorities and police services through the
media. Therefore, journalists must be able to freely report and
comment on the functioning of the criminal justice system, subject
only to the limitations provided for under the following principles.
Principle 2 - Presumption of innocence
Respect for the principle of the presumption of
innocence is an integral part of the right to a fair trial.
Accordingly, opinions and information relating to on-going criminal
proceedings should only be communicated or disseminated through the
media where this does not prejudice the presumption of innocence of
the suspect or accused.
...
Principle 8 - Protection of privacy in the context of
on-going criminal proceedings
The provision of information about suspects, accused or
convicted persons or other parties to criminal proceedings should
respect their right to protection of privacy in accordance with
Article 8 of the Convention. Particular protection should be given to
parties who are minors or other vulnerable persons, as well as to
victims, to witnesses and to the families of suspects, accused and
convicted. In all cases, particular consideration should be given to
the harmful effect which the disclosure of information enabling their
identification may have on the persons referred to in this
Principle.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant company complained that the Vienna
Court of Appeal’s judgment of 14 February 2007 had violated its
right to freedom of expression. It relied on 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
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court notes at the outset that it is not in dispute that the Vienna
Court of Appeal’s judgment of 14 February 2007, which
awarded damages to the claimant, constituted an interference with the
applicant company’s right to freedom of expression as
guaranteed by Article 10 § 1 of the Convention.
- As
to the fulfilment of the conditions set out in Article 10 § 2,
it was common ground between the parties that the interference was
“prescribed by law”, namely section 7a of the Media Act
and served a legitimate aim, namely the protection of the rights and
reputation of others. The Court sees no reason to hold otherwise.
- The
parties’ arguments concentrated on the question whether the
interference was “necessary in a democratic society”
within the meaning of Article 10 § 2 of the Convention.
1. The parties’ submissions
- The
applicant company maintained that the
interference with its right to impart information had not been
necessary. It asserted that the article had contributed to a public
debate, and concerned an issue of considerable public interest,
namely how a bank which was part owned by the Land had lost
enormous amounts of money in foreign currency speculations, thus
ultimately causing damage to the taxpayer.
- Regarding
the question whether it had been entitled to mention Mr Rauscher’s
name, the applicant company noted that the article, while reporting
that the public prosecutor’s office was investigating senior
managers of Hypo Alpe-Adria in connection with suspected
embezzlement, described Mr Rauscher as a scapegoat rather than a
culprit. The applicant company also disputed that its reporting had
damaged Mr Rauscher’s career prospects. His position in the
bank and the huge losses incurred had been known in banking circles
well before the publication of the article at issue. In any case, the
article had done no more than to refer correctly to the claimant’s
position as head of the bank’s treasury. Moreover, it was a
fact that his father, a former member of the regional government, had
been on the bank’s supervisory board at the material time.
Without being able to mention the names of those responsible it would
not have been possible for the press to convey the extent to which
politics and banking were intertwined.
- The
Government, while acknowledging the essential role played by the
press as a “public watchdog”, asserted that in the
present case the interference with the applicant company’s
freedom of expression had been necessary within the meaning of
Article 10 § 2 of the Convention. They argued in particular that
the domestic courts had had to weigh the applicant company’s
interest in imparting information on an issue of public interest
against the rights of the person concerned which were equally
protected by the Convention, namely the presumption of innocence
guaranteed by Article 6 § 2 and the right to respect for
his or her identity, protected by Article 8 as part of a person’s
private life. The necessity to carry out such a weighing of interests
was laid down in section 7a(1)(2) of the Media Act.
- While
reporting on the massive speculation losses of a bank had clearly
been in the public interest, the disclosure of Mr Rauscher’s
name had not. He was not a politician nor a leading businessman or
other public figure. He had just been the treasurer of the bank in
issue. The fact that his father was a politician did not make him a
public figure either. Even the Regional Court, which had dismissed
his claim at first instance, had acknowledged that the article had
created the impression that he was suspected of having committed the
offence of embezzlement in respect of a huge sum of money. In its
judgment of 14 February 2007, the Vienna Court of Appeal set out
convincing reasons for its conclusion that Mr Rauscher’s
interest in the protection of his identity and the presumption of
innocence outweighed the applicant company’s interest in
disclosing his name. The amount of compensation awarded to the
claimant, namely EUR 5,000 was not disproportionate either.
2. The Court’s assessment
(a) General principles
- According
to the Court’s well-established case-law, the test of necessity
in a democratic society requires the Court to determine whether the
interference complained of corresponded to a “pressing social
need”, whether it was proportionate to the legitimate aim
pursued and whether the reasons given by the national authorities to
justify it are relevant and sufficient (see The Sunday Times v.
the United Kingdom (no. 1), 26 April 1979, § 62, Series A
no. 30). In assessing whether such a need exists and what measures
should be adopted to deal with it, the national authorities are left
a certain margin of appreciation. This power of appreciation is not,
however, unlimited but goes hand in hand with a European supervision
by the Court, whose task it is to give a final ruling on whether a
restriction is reconcilable with freedom of expression as protected
by Article 10 (see Bladet Tromsø and Stensaas v. Norway
[GC], no. 21980/93, § 58, ECHR 1999 III).
- An
important factor for the Court’s determination is the essential
function of the press in a democratic society. Although the press
must not overstep certain bounds, in particular in respect of the
reputation and rights of others or of the proper administration of
justice, its duty is nevertheless to impart – in a manner
consistent with its obligations and responsibilities –
information and ideas on all matters of public interest (see Bladet
Tromsø and Stensaas, cited above, § 59, and, as a
recent authority, Flinkkilä and Others v. Finland, no.
25576/04, § 73, 6 April 2010). By reason of the “duties
and responsibilities” inherent in the exercise of the freedom
of expression, the safeguard afforded by Article 10 to journalists in
relation to reporting on issues of general interest is subject to the
proviso that they are acting in good faith and on an accurate factual
basis and provide reliable and precise information in accordance with
the ethics of journalism (see Fressoz and Roire v. France
[GC], no. 29183/95, § 54, ECHR 1999 I, and, as a recent
authority, Eerikäinen and Others v. Finland, no. 3514/02,
§ 60, 10 February 2009). Not only do the media have the
task of imparting such information and ideas, the public has a right
to receive them. Were it otherwise, the press would be unable to play
its vital role of “public watchdog” (see, among many
authorities, Thorgeir Thorgeirson v. Iceland, 25 June 1992, §
63, Series A no. 239).
- In
sum, the Court’s task in exercising its supervisory function is
not to take the place of the national authorities but rather to
review under Article 10, in the light of the case as a whole, the
decisions they have taken pursuant to their power of appreciation
(Fressoz and Roire, cited above, § 45).
(b) Application of these principles to the
present case
- The
present case concerns an article published by the applicant company
in its daily newspaper Der Standard, reporting on the enormous
speculation losses incurred by Hypo Alpe-Adria and on the criminal
investigation into embezzlement which had been opened by the public
prosecutor in respect of the senior management of the bank. It raises
the question whether the applicant company was entitled to disclose
the name of the claimant, who had been the head of the bank’s
treasury at the time when the losses were incurred.
- The
domestic courts disagreed on the issue. The Vienna Regional Criminal
Court held that although the claimant was not a public figure, there
was a link between his professional activity and public life in that
the Land of Carinthia owned 45% of the bank. As it was
ultimately for the taxpayer to bear a considerable share of the
losses, there was an overriding public interest in receiving
information on the identity of those responsible. The Vienna Court of
Appeal also considered that the claimant was not a public figure.
While accepting that the public had an interest in being informed of
the speculation losses, it considered that this interest could not
justify the disclosure of the claimant’s name at an early stage
of the criminal investigation where the suspicion was still vague.
- In
the Court’s view the reasons given by the Vienna Court of
Appeal were undoubtedly “relevant” reasons for the
purposes of the necessity test to be carried out under Article 10 §
2. It will next examine whether they were also “sufficient”.
- The
Court agrees with the domestic courts that the case concerned a
balancing of the applicant company’s right to freedom of
expression under Article 10 against the claimant’s right to
protection of his identity. In this connection the Court reiterates
that the concept of “private life” protected by Article 8
of the Convention includes aspects relating to personal identity,
such as a person’s name or picture (see Von Hannover v.
Germany, no. 59320/00, § 50, ECHR 2004 VI with
further references).
- In
cases in which the Court has had to balance the protection of private
life against freedom of expression, one factor it has taken into
account is the position of the person concerned by the publication:
whether or not he or she was a “public figure” or had
otherwise “entered the public scene” (see, for instance,
the following cases in the specific context of criminal proceedings:
News Verlags GmbH & Co.KG v. Austria, no. 31457/96, §
54, ECHR 2000 I, relating to the publication of pictures of the
suspect of a high-profile crime; Verlagsgruppe News GmbH v.
Austria (no. 2), no. 10520/02, § 36, 14 December 2006,
relating to the publication of a picture of a leading business man in
the context of proceedings against him for tax evasion; Egeland
and Hanseid v. Norway, no. 34438/04, § 60, 16 April 2009,
relating to the publication of pictures of a person convicted of
murder in a high-profile case; Flinkkilä and Others,
cited above, § 83, relating to the publication of the name and
picture of the female friend of a senior public figure, a married
man, who had both been involved in a public disturbance which gave
rise to their conviction; and Eerikäinen and Others,
cited above, § 66, concerning the disclosure of the identity and
pictures of the suspect of proceedings relating to social security
fraud).
- In
the present case, both the Vienna Regional Criminal Court and the
Vienna Court of Appeal found that the claimant, as a senior employee
of the bank in issue, was not a “public figure”, nor did
the fact that his father had been a politician make him a public
figure. The Court agrees with this assessment. It does not consider
either that the claimant can be considered to have entered the public
scene. However, the Court observes that the question whether or not a
person, whose interests have been violated by reporting in the media,
is a public figure is only one element among others to be taken into
account (see the case of Eerikäinen and Others, cited
above, §§ 66-72, in which the publication concerned
an ordinary individual but where the court nevertheless found that
the order to pay damages for publishing her name and picture in the
context of a report on an issue of general interest had not been
“necessary” within the meaning of Article 10 § 2
of the Convention).
- Another
important factor which the court has frequently stressed when it
comes to weighing conflicting interests under Article 10 on the one
hand and Article 8 on the other hand, is the contribution made by
articles or photos in the press to a debate of general interest (see,
in the context of criminal proceedings, News Verlags GmbH &
Co.KG, cited above, § 54; Verlagsgruppe News GmbH
(no. 2), cited above, § 37; Flinkkilä and
Others, cited above, § 76; and Eerikäinen and
Others, cited above, § 66).
- It
is not in dispute in the present case that the article reported on an
issue of public interest. It concerned a banking scandal which led to
enormous losses by a bank, 45% of which was owned by the Land
of Carinthia. Against this background, the article dealt with the
fact that politics and banking were intertwined on the one hand and
reported on the opening of an investigation by the public prosecutor
on the other hand. In this connection the Court reiterates that there
is little scope under Article 10 § 2 of the Convention for
restrictions on political speech or on debate on questions of public
interest (see Sürek v. Turkey (no. 1) [GC], no.
26682/95, § 61, ECHR 1999-IV).
- Moreover,
it is not in dispute that the facts reported in the article were
correct. As head of the bank’s treasury, the claimant held a
position in the management of the bank at the material time, in which
he was responsible for authorising foreign currency transactions and
answerable only to the executive board. The fact that his father was
a former member of the regional government was not in dispute either,
nor the fact – not mentioned in the article but established by
the domestic courts in the course of the proceedings – that he
had been a member of the bank’s supervisory board at the time
when the losses were incurred and the claimant was head of its
treasury.
- The
Vienna Court of Appeal relied heavily on the aspect that the article
reported on the opening of criminal proceedings and, by indicating
the claimant’s name, presented him as a suspect in the
embezzlement of a huge sum of money. The Government, arguing that the
impugned judgment had served to protect the claimant’s right to
be presumed innocent, appear to rely on a similar line of argument.
The Court refers to the particular duties incumbent on the media in
relation to providing information on criminal proceedings (see, in
paragraph 19 above, the Council of Ministers Recommendation
Rec(2003)13). It accepts the Vienna Court of Appeal’s finding
that the disclosure of a suspect’s identity may be particularly
problematic at the early stage of criminal proceedings.
- However,
when assessing the necessity of an interference, the Court must have
regard to the article as a whole. It observes that the article at
issue is not a typical example of court reporting but focuses mainly
on the political dimension of the banking scandal at hand. This is
already made clear by its title “Haider’s Hypo now also
facing criminal investigation”, which refers to Mr Haider, the
then Regional Governor of Carinthia, and by the introductory text in
which Mr Haider is said to have accused the authorities of being
“overzealous and politically motivated”. Apart from
reporting the fact that the public prosecutor had opened an
investigation into the bank’s senior management on suspicion of
embezzlement, the article does not deal with the conduct or contents
of the investigation as such.
- The
article’s focus is instead on the extent to which politics and
banking are intertwined and on the political and economic
responsibility for the bank’s enormous losses. It mentions that
Mr Haider, who himself also represented the Land as a
shareholder and performed a supervisory function at the bank, and Mr
Kulterer from the bank’s executive board, were trying to put
the blame on the claimant and in this context refers to his father,
member of the Socialist Party and former member of the regional
government, thus hinting at motives of party politics. Names, persons
and personal relationships are clearly of considerable importance in
this sphere. It is difficult to see how the applicant company could
have reported on these issues in a meaningful manner without
mentioning the names of all those involved, including the claimant
(see, mutatis mutandis, Flinkkilä and Others,
cited above, § 85, where the Court also considered that the
disclosure of the identity of the person concerned had a direct
bearing on matters of public interest). That distinguishes the
present case from a case in which the Court declared inadmissible the
complaint by the publisher of an Austrian news magazine, which had
been ordered to pay compensation for having disclosed the name of a
police officer at an early stage of criminal proceedings against him.
The Court found in that case that the disclosure of the police
officer’s name did not add anything to the information already
given in the article (Wirtschafts-Trend
Zeitschriften-Verlagsgesellschaft mbH v. Austria (no. 2) (dec.),
no. 62746/00, ECHR 2002 X).
- Furthermore,
the Court observes that the Vienna Court of Appeal referred to the
Regional Court’s finding that the disclosure of Mr Rauscher’s
identity had been detrimental to him, namely to his professional
advancement. However, it did not counter the Regional Court’s
argument that his name and position at Hypo Alpe-Adria must have been
well known in business circles before the publication of the article
at issue.
- In
sum, the Court finds that the reasons adduced by the Vienna Court of
Appeal, though being “relevant” were not “sufficient”.
The Court therefore considers that the domestic courts have
overstepped the narrow margin of appreciation afforded to them with
regard to restrictions on debates of public interest. It follows that
the interference with the applicant company’s right to freedom
of expression was not “necessary in a democratic society”.
- Consequently,
there has been a violation of Article 10 of the Convention.
II. 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 company claimed 8,037.14 euros (EUR)
in respect of pecuniary damage. This sum is composed of EUR 5,000,
which it had to pay to Mr Rauscher as compensation, plus EUR 250 and
EUR 2,787.14, which it had to pay him for court fees and legal
representation respectively. The latter amount includes value-added
tax (VAT).
- The
applicant company did not request an award in respect of
non-pecuniary damage.
- The
Government contended that the 20% VAT included in the costs for legal
representation did not constitute a financial burden for the
applicant company, since it was entitled to input tax deduction
(Vorsteuerabzug).
- The
Court finds that there is a causal link between the violation of
Article 10 and the pecuniary damage claimed by the applicant company.
The latter is therefore entitled to claim damages under this head.
However, the Court finds that the Government’s argument in
respect of VAT is pertinent, as commercial companies, in contrast to
private individuals, are entitled to input tax deduction. According
to the bill submitted by the applicant company, the amount which it
had to pay the claimant as reimbursement for his legal representation
contained VAT in the amount of EUR 435.02. The Court reduces the
amount claimed by the applicant company accordingly (see, as a
similar case, Verlagsgruppe News GmbH (no. 2),
cited above, § 48). It therefore awards EUR 7,602.12 under the
head of pecuniary damage.
B. Costs and expenses
- The
applicant company also claimed EUR 2,378.19 for
the costs and expenses incurred before the domestic courts and EUR
3,706.56 for those incurred in the Convention proceedings. These sums
include VAT.
- The
Government asserted that the claim was excessive. They submitted in
particular that, in respect of the Convention proceedings, the
applicant company claimed more than twice the amount that is due
according to the relevant domestic law. Moreover, the argument
concerning VAT also applied in respect of the applicant company’s
own costs of legal representation.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, having regard
to the documents in its possession and the above
criteria and taking into account the Government’s argument in
respect of VAT, the Court considers it reasonable to award the
sum of EUR 4,500 covering costs and expenses under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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
- Declares the application
admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant company,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the following amounts:
(i) EUR
7,602.12 (seven thousand six hundred and two euros twelve cents),
plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR
4,500 (four thousand five hundred euros), plus any tax that may be
chargeable to the applicant company, 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 the remainder of
the applicant company’s claim for just
satisfaction.
Done in English, and notified in writing on 10 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
