CASE OF STANDARD VERLAGS GMBH v. AUSTRIA
(Application no. 13071/03)
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:
I. THE CIRCUMSTANCES OF THE CASE
“‘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 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”.
A. Proceedings under the Media Act
“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.”
B. Proceedings under the Copyright Act and the Civil Code
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.”
“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.”
“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...”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“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.”
1. The parties’ submissions
2. The Court’s assessment
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“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...”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(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;
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
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.
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.