CASE OF STANDARD VERLAGS GMBH AND
KRAWAGNA-PFEIFER v. AUSTRIA
(Application no. 19710/02)
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 and Krawagna-Pfeifer 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
“Sacrifice of the decent
The FPÖ is becoming ever truer to itself and many people are developing an increasingly similar image of it. For any organisation, whether a movement, party or whatever, is moulded by those at the top – how they interact with one another, which people they choose, how they cope with crises. All of this rubs off and has its effects. In the case of the FPÖ leader Jörg Haider this means: people are useful idiots, you can entice them with fine words, appeal to their nobler principles and, indeed, use them as long as they are of service to your own interests.
Dealings within the FPÖ are correspondingly cunning. Haider has never even been soft towards his closest friends and backers and has dropped them as soon as they no longer fitted in with his plans. Friedrich Peter, Mario Ferrari-Brunnenfeld and Krimhild Trattnig are all examples. Others, such as Walter Meischberger or Gernot Rumpold, are allowed all kinds of liberties because they know too much. They have not been damaged either by convictions for tax evasion or by any other slip-ups.
The MP Hermann Mentil was not excluded from the FPÖ on that account and was not scorned by his former colleagues because proceedings had been instituted against him for fraud. That is of little consequence to Jörg Haider, especially as he would otherwise have to bar himself from the FPÖ. After all, Haider was convicted in criminal proceedings at first instance because he had ruined a person’s good reputation and prospects for the future. A conviction, in any event, is of a different order from the institution of proceedings. Mentil was in fact dropped because in the Rosenstingl case Haider needs as many sacrificial victims as possible, to show to the public as and when required.”
“Criminal court convicts Haider
Lawyer Böhmdorfer also convicted of defamation
The FPÖ federal party leader, Jörg Haider, and his lawyer, Dieter Böhmdorfer, were convicted of attempted defamation on Thursday and fined 167,400 schillings and 257,400 schillings respectively. The convictions relate to their ongoing six-year legal dispute with D. [full name], an Innsbruck-based expert in financial law, who was thwarted in his bid to become President of the Audit Office when Mr Haider embroiled him in a motorway-building scandal. Mr Haider had repeatedly been asked to withdraw his allegations in the course of civil proceedings over the past few years. Since no such action was taken, he and his lawyer have now been convicted at first instance by a criminal court. Both have appealed.
In 1992 Mr Haider blocked Mr D.’s candidacy for the post of President of the Audit Office by accusing him of having been involved in a major scandal of the time concerning the building of the Pyhrn motorway. Mr D. lodged a complaint and obtained an order from the Supreme Court requiring Mr Haider to withdraw his accusations in a television broadcast. But according to Thursday’s judgment, the videotape prepared for that purpose once again contained defamatory accusations. As the tape was not broadcast, however, the court ruled that the offence should be classified merely as attempted defamation.”
A. Proceedings under the Media Act
B. Proceedings under the Civil Code
II. RELEVANT DOMESTIC LAW AND PRACTICE
30. 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. 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. 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.”
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
77. In sum the Court awards the first applicant a total amount of EUR 16,000 inclusive of VAT in respect of costs and expenses.
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,
(i) the first applicant EUR 16,000 (sixteen thousand euros) in respect of pecuniary damage;
(ii) EUR 16,000 (sixteen thousand euros) in respect of costs and expenses;
(iii) the second applicant EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, plus any tax that my be chargeable on that amount;
(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 following opinions are annexed to this judgment:
(a) concurring opinion of Mr Jebens;
(b) dissenting opinion of Mr Rozakis, Mrs Tulkens and Mr Spielmann.
CONCURRING OPINION OF JUDGE JEBENS
I agree with the majority that the conclusions of the proceedings against the newspaper and its editor amounted to interferences with the right to freedom of expression that violated Article 10 of the Convention. However, I cannot join the majority’s reasoning regarding the Article 10 issue. That reasoning is to a large extent based on a characterization of the impugned sentence as partly a value judgment, which is not susceptible of proof.
The article, “Sacrifice of the decent”, which was published by the second applicant in the 9 October 1998 issue of “der Standard”, critizes the culture within the FPÖ party, and especially its leader, Mr Jörg Haider. The latter is presented as a rather cynical person in his relations with party colleagues, by references to his behaviour and attitude towards them. I agree that these negative assertions of Mr Haider are value judgments.
The impugned sentence, however, does in my opinion not contain a value judgment, but a factual statement. By claiming that “(a)fter all, Haider was convicted in criminal proceedings at the first instance because he had ruined a person’s good reputation and prospects of the future”, the article brings concrete factual information. Reading the sentence in its context it transpires that the purpose with this is to convince the readers about the correctness of the negative characterizations elsewhere in the article. This classification of the impugned sentence covers in my opinion the whole of it, because it gives the impression that Mr Haider was convicted of actually having ruined another person’s reputation and future. By interpreting the impugned sentence as a value judgment, and consequently not requiring proof of its veracity, the reputation of others would, in my opinion, not be sufficiently protected.
The above referred statement in the 9 October 1998 issue of “der Standard” was correct, insofar as Mr Haider had been convicted in defamation proceedings at the first instance. Mr Haider was, however, only convicted of attempted defamation. The allegation that he had been convicted of having ruined a person’s good reputation and prospects of the future was therefore incorrect.
It is, however, not necessary for me to go further into the questions that thereby arise. The reason is that the difference between the allegation in “der Standard” and the actual conviction of Mr Haider was in my opinion small and must have been of little relevance for its impact on the reader of the article (see, mutatis mutandis, Bergens Tidende and Others v. Norway, no. 26132/95, §§ 54-56, ECHR 2000 IV). Because of this, I agree with the majority that the interference by the Austrian courts with the applicants’ right to freedom of expression was not necessary in a democratic society, and thus in breach of Article 10.
The refusal by the national courts to admit evidence as to the truth of the allegation covers in my opinion the procedural aspect of the case. I therefore agree that there is no need to examine separately the complaint under Article 6.
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 consider that the complaint of the applicants under Article 6 of the Convention is absorbed by the complaints under Article 10, and, therefore, there is no need to examine it separately.
We consider that although the applicants raised the issue of the refusal of the domestic courts to hear a number of witnesses both as an aspect of their complaint under Article 10, and, separately, as a complaint under Article 6, their reference to the refusal of the courts to hear witnesses with regard to their complaint concerning freedom of expression merely supported the main argument of the applicants that the domestic courts did not proceed to a proper assessment of the interests involved in the case, namely the interest of the applicants to express themselves freely vis-à-vis the interest of Mr Haider. It is this reading of that part of the complaint under Article 10, which led the Chamber to its decision not to take up the issue, and not to answer the applicants’ assertion (see paragraph 50 of the judgment). Under Article 6, on the other hand, the applicants raised the same issue, but this time, from a purely procedural angle ; namely that they were not given the opportunity to produce evidence before a court of law, and to examine witnesses who, according to the applicants, were important for the proper establishment of the facts of the case.
For these reasons, we believe that the complaint under Article 6 had to be examined separately, as a distinct complaint which deserved an answer by the Court.