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Cite as: [2007] ECHR 173

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FIRST SECTION

CASE OF FALTER ZEITSCHRIFTEN GMBH v. AUSTRIA

(Application no. 26606/04)

JUDGMENT

STRASBOURG

22 February 2007

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 Falter Zeitschriften Gmbh v. Austria,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Mr C.L. Rozakis, President,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,

Having deliberated in private on 1 February 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 26606/04) 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 Falter Zeitschriften GmbH (“the applicant company”), on 6 July 2004.

The applicant company was represented by Mr A. Noll, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

The applicant company complained about a breach of its rights under Article 10 of the Convention.

On 4 May 2006 the Court decided to give notice of 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 company is the owner and publisher of the weekly newspaper “Falter”. It has its seat in Vienna.

A. The background of the case and the article at issue

In the autumn of 2000 the police officer Mr Kleindienst revealed that he and some colleagues had repeatedly transmitted data from the central police computer to officials of the Austrian Freedom Party (FPÖ). Subsequently criminal investigations were commenced against several persons, amongst them Mr Kabas, leader of the Vienna branch of the FPÖ, on suspicion of having assisted in abuse of authority (Amtsmissbrauch). On 7 May 2002 the Vienna Public Prosecutor's Office closed the file against Mr Kabas and criminal proceedings against him were discontinued. In the autumn of 2002 the Vienna Regional Court (Landesgericht) convicted Mr Kleindienst and the FPÖ official Mr Kreiβl and sentenced them to six months' imprisonment suspended on probation.

Subsequently, in its issue of “Falter” of 25 September 2002 the applicant company published the following article:

“Spineless justice

COMMENT Informer trial ends with guilty verdicts: shadow cast over public prosecutor's office

The “informer affair” – the case about whether FPÖ politicians obtained secret data from the police computer system in return for money over a period of many years – has provisionally come to a close. Josef Kleindienst, the former FPÖ police trade unionist who set the case in motion with a full confession, and the police officer Michael Kreißl, the former right-hand man of the leader of the Vienna branch of the FPÖ, Hilmar Kabas, were given six-month suspended prison sentences. Among other things, they had disclosed official secrets concerning a drugs raid, allowing the Vienna FPÖ the time to publish press advertisements stirring up feelings against “1,000 Nigerians”. The judgments are not yet final.

The trial was highly instructive. At the hearing the public prosecutor, Michael Klackl, spoke for the first time of “revealing insight into the handling of sensitive police data” and criticised the “alarming networking between politicians [he presumably did not dare to say FPÖ – ed.] and the police”. Josef Kleindienst, whose detailed statements on the informing system within the FPÖ were nevertheless considered much too “vague” by the Ministry of Justice – headed by Mr Haider's friend Dieter Böhmdörfer – to justify bringing charges against high-ranking FPÖ politicians, was described by the independent criminal judge Kurt Wachsmann in the reasoning of the judgment as a person of “absolute credibility”.

How strange. Why, then, were no other high-ranking FPÖ politicians put in the dock? Why were the proceedings against Jörg Haider, Ewald Stadtler, Karl Schnell and 71 other accused FPÖ officials not energetically pursued, even though the “credible” Kleindienst had so heavily incriminated them? Why were the proceedings against the beneficiaries of the informers' services, the politicians, discontinued at a time when not even all the witnesses had been examined? Why did they never have to appear in a public arena before an independent judge, even though they had boasted in Parliament that they had access to secret police files? Could it have been because of political pressure? Because of threats by the FPÖ leadership against public prosecutors, judges and investigators? The public prosecutor's office is not required to justify itself. The notes it keeps in its so-called “journals” are secret.

The “informer affair” involves much more than just a few corrupt police officers and a web of officials, journalists and politicians who for years went unpunished in downloading secret material about political opponents from the police computer system and distributing it among themselves with a view to making public attacks – especially in the Kronen Zeitung – on people they did not like. The facts of the case suggest that the public prosecutor's office allowed itself to be intimidated. That it made such extensive use of its discretionary powers in assessing a witness's “credibility” that independent judges were left out of the picture. At no time did the prosecutors entrust the “preliminary investigation” of the case to an independent investigating judge, as they would in the case of any common shoplifter. They constantly sought to remain in charge of the proceedings in the context of “preliminary inquiries”. The public prosecutor's office was anxious about digging its teeth into the angry FPÖ senior politicians, whose counsel, as the Minister for Justice, was also the highest representative of the State prosecution service. It will not bite barking dogs.

The bourgeois revolutions of the nineteenth century spawned the institution of the independent judge. The search for justice was henceforth supposed to take place in the courtrooms and not in political cabinets. To this day judges cannot be removed from office, are not subject to any instructions, and are supposed to represent a third branch of State power, which can treat everyone the same – above all, even the King – without having to fear personal consequences. However, Austrian criminal law in practice deprives this fundamental principle of all effect. What comes before a judge is decided by the public prosecutor, who is subject to instructions from the private office of the Minister of Justice. Prosecutors know that their career may depend on the click of a minister's fingers. That turns them into cowering vacillators rather than energetic investigators. Instead of raking through the muck and carrying out painstaking investigative work, they look upwards so as not to fall down. Justice ministers from all parties know why they do not wish to relinquish their right to issue instructions.

This brings us to the case of the leader of the Vienna branch of the FPÖ, Hilmar Kabas. Initially the fraud squad actually wanted him to be detained on remand. Kleindienst had not only stated that he had been bribed by Kabas; he also confessed to having handed him a secret file on nuclear crime. Subsequently, according to Kleindienst, they celebrated this coup over boiled beef in the Plachutta restaurant together with a Krone reporter. The judge believed Kleindienst's version of events and convicted him of abusing his office. Kabas should really also have been convicted by this stage as the person receiving the file. Kabas admitted having met at Plachutta but denied having taken possession of a file. The justice system also believed this version, resulting in a grotesque situation in which the person who had handed over the secret file was convicted but the high-ranking official who had received it walked away free. At the hearing – at which Kabas gave evidence under oath as a witness, although he could have asserted his right not to do so – the FPÖ agitator was unable to remember any files being handed over. The judge observed: “This is the question: can he [Kabas – ed.] no longer remember? After all, he does have other things to deal with at present.” Rarely can possibly false evidence have been downplayed so elegantly.

The public prosecutor's office should now at least become active again and investigate Kabas either for giving false testimony or for abusing his office. The accusations against other leading politicians likewise appear in a new light now. Why should Kleindienst have appeared credible in one case but not in his many other confessions? In any event, the public prosecutor, Mr Klackl, will have “another thorough look” at the case concerning Kabas, as a spokesman for the public prosecutor's office confirmed.

One thing has become clear after the trial, however. In proceedings conducted in public by an independent judge the justice system can probe closer to the truth than in secret preliminary proceedings under the sole control of public prosecutors who are subject to instructions.

The “informer affair” may be resumed informally at any time. All that is required is the political will to allow the judges to do their work. The fact that political will is needed for the justice system to start working properly is frankly unacceptable.”

Upon appeal, the Vienna Court of Appeal (Oberlandesgericht) acquitted Mr Kreiβl and Mr Kleindienst on 12 February 2004.

B. The proceedings under the Media Act

On 27 September 2002 Mr Kabas instituted proceedings claiming compensation and publication of the judgment under section 7b of the Media Act (Mediengesetz) with the Vienna Regional Criminal Court (Landesgericht für Strafsachen). He submitted that the following passages of the above article were in violation of his right to be presumed innocent:

“The 'informer affair' involves much more than just a few corrupt police officers and a web of officials, journalists and politicians who for years went unpunished in downloading secret material about political opponents from the police computer system and distributing it among themselves with a view to making public attacks – especially in the Kronen Zeitung – on people they did not like...

Kabas should really also have been convicted by this stage as the person receiving the file...

... a grotesque situation in which the person who had handed over the secret file was convicted but the high-ranking official who had received it walked away free...

...The public prosecutor's office should now at least become active again and investigate Kabas either for giving false testimony or for abusing his office...”

The Regional Court discontinued these proceedings on 13 October 2002. It noted that Mr Kabas had been subject of preliminary investigations (Vorerhebungen) relating to the “police information affair” which had been discontinued under section 90 § 1 of the Code of Criminal Procedure (Strafprozeβordnung). However, the guarantees of presumption of innocence under section 7b of the Media Act concerned only a person who was suspected of a criminal offence and was not yet convicted by final judgment. It did not apply once the criminal proceedings had been discontinued as from this time onwards any statement of a private person which was in violation with the presumption of innocence of another person constituted defamation under section 6 § 1 of the Media Act.

Upon Mr Kabas' complaint, the Vienna Court of Appeal (Oberlandesgericht), on 6 June 2003, quashed this decision and remitted the case to the Regional Court. It noted that section 7b of the Media Act protected any person suspected of a criminal offence, regardless of the state of criminal proceedings and whether the person was suspected by official authorities. Having regard to the article as a whole and the impugned passages in particular, the court found that the conditions of applying section 7b of the Media Act to the present case were met.

Having held a hearing, the Regional Court, on 22 July 2003, found that the impugned passages were in breach of the presumption of Mr Kabas' innocence as guaranteed under section 7b of the Media Act. It therefore ordered the applicant company to pay 2,500 euros (EUR) in compensation to Mr Kabas, to publish the judgment and to pay Mr Kabas' costs of the proceedings. It found that the article taken as a whole was based on the assumption that there were persons whose guilt was established but only some of them were prosecuted. The article's statements concerning the misconduct of the Public Prosecutor's Office and the Minister of Justice could only be understood in the way that the Public Prosecutor's Office, against its better judgment, had refrained from prosecuting clearly guilty criminal offenders. The article suggested that Mr Kleindienst's statement heavily charged Mr Kabas and conveyed that - if everything was perfectly above-board - Mr Kabas should now also be convicted. By calling the situation that Mr Kabas was not convicted “grotesque” the article not only established the juridical not maintainable presumption that a person who had received a file obtained in abuse of office had also committed an offence, but also suggested that this dealing with the matter was against all legal practice. The article conveyed to the reader that under duly conducted criminal prosecution the filing of an indictment against Mr Kabas and his conviction would merely be a matter of form. This message was presented as quasi established fact which was strengthened by the repeated reference to the judge who had considered Mr Kleindienst's statements as absolutely credible. The reader was given the impression that Mr Kabas was undoubtedly guilty and that his conviction was inevitable. The article had therefore crossed the threshold of the simple utterance of suspicion against Mr Kabas.

On 31 October 2003 the applicant company appealed against the judgment, referring in particular to Article 10 of the Convention.

On 15 March 2004 the Vienna Court of Appeal confirmed the Regional Court's judgment. It noted that the expression of an opinion about the Public Prosecutor Office's role in the “informer affair” proceedings and criticism on the discontinuation of the criminal proceedings against Mr Kabas fell under the applicant company's right under Article 10 of the Convention, but in the present case the impugned article went further and portrayed Mr Kabas as established guilty.

II. RELEVANT DOMESTIC LAW

Section 7b of the Media Act (Mediengesetz) is entitled “Protection of the presumption of innocence” (Schutz der Unschuldsvermutung) and, as in force at the relevant time, read as follows:

“1. A person suspected of having committed an offence but not yet convicted by final judgment, who is portrayed in a medium as being guilty or as the perpetrator of the offence and not only as a suspect, is entitled to claim compensation from the media owner for the insult suffered. The amount of compensation shall not exceed 14,535 EUR;...

2. There shall be no right to compensation if

(1) a true report about a hearing at a public session of the National Assembly, the Federal Council, the Federal Assembly, the Diet of a Land or a committee of these general representative bodies is concerned,

(2) a true report about a conviction at first instance is concerned which indicates that the conviction is not final,

(3) the person concerned has made a confession in public or before a medium and has not revoked it,

(4) a direct broadcast (live broadcast) is concerned and the employee of the broadcast has applied the care required of journalists,

(5) a true quotation of the statement of a third person is concerned and if there was a predominant public interest in the publication of the quoted statement.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

The applicant complained of a breach of its rights as provided in Article 10 of the Convention, which, as far as relevant, 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 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

The Government acknowledged that there had been an interference with the applicant's rights under Article 10 of the Convention. They contented, however, that it was prescribed by law and “necessary in a democratic society” within the meaning of § 2 of Article 10. They argued in the first place that the Court of Appeal considered in detail the applicant company's submissions and set out clearly why, in the present case, Mr Kabas' interest in protection of presumption of his innocence continued beyond the discontinuation of the criminal proceedings against him. Furthermore, the interpretation of section 7b of the Media Act in conformity with Article 6 § 2 of the Convention called for an extensive understanding of the protection of the presumption of innocence. While there was certainly public interest in the discussion of the “police information affair”, Mr Kabas' right in the presumption of his innocence outweighed the applicant company's right to freedom of expression. In the impugned article the applicant company depicted Mr Kabas as already convicted and did not inform the reader that the charges against him had already thoroughly been examined by the Public Prosecutor's Office which had closed his file months ago. When weighing the respective interests, the domestic courts had furthermore had regard to the fact that Mr Kabas was not given the opportunity to comment. Moreover, the ex-post appraisal of the present case confirmed that the court's assessment was correct. As Mr Kreiβl and Mr Kleindienst were finally both acquitted, the alleged assistance of Mr Kabas in their criminal acts was impossible. The Government further argued that the measures taken by the Austria courts were also proportionate.

The applicant company maintained its point of view.

The Court finds that the Austrian courts' decisions interfered with the applicant company's right to freedom of expression under Article 10 of the Convention. The interference was prescribed by law, namely by section 7 b of the Media Act and pursued the legitimate aim of protecting the reputation and rights of others.

The parties' arguments concentrated on the necessity of the interference. In this regard, the Court reiterates the principles established by its case–law under Article 10 of the Convention:

(i) The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, 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 De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports 1997-I, pp. 233-234, § 37). Not only does it have the task of imparting such information and ideas, the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, p. 28, § 63; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III; and Unabhängige Initiative Informationsvielfalt v. Austria, no. 28525/95, § 46, 26 February 2002).

(ii) This undoubtedly includes questions concerning the functioning of the system of justice, an institution that is essential for any democratic society. However, even if such a debate is of public interest, there are limits to the right to freedom of expression. In particular, it may prove necessary to protect the judicial system against destructive attacks that are essentially unfounded (see Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 17, § 34) or to protect the presumption of innocence of third persons (see Constantinescu v. Romania, no. 28871/95, §§ 72- 78, ECHR 2000 VIII).

(iii) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. As set forth in Article 10 § 2, this freedom is subject to exceptions, which must, however, be construed strictly and the need for any restrictions must be established convincingly (see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).

(iv) 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-IV).

(v) The notion of necessity implies a “pressing social need”. The Contracting States enjoy a margin of appreciation in this respect, but this goes hand in hand with a European supervision which is more or less extensive depending on the circumstances. In reviewing under Article 10 the decisions taken by the national authorities pursuant to their margin of appreciation, the Convention organs must determine, in the light of the case as a whole, whether the interference at issue was “proportionate” to the legitimate aim pursued and whether the reasons adduced by them to justify the interference are “relevant and sufficient” (see Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 25, §§ 39-40; and The Sunday Times v. the United Kingdom (no. 2), judgment of 26 November 1991, Series A no. 217, p. 28-29, §§ 50).

The Court will examine the impugned article having regard to the above principles and in the light of the situation as it presented itself to the applicant company at the material time. The Court notes at the outset that the article dealt with the criminal proceedings concerning the “police information affair”, an issue of public and political interest at the time of the events. The article expressed criticism on the authorities' dealing with this affair, namely the conduct of the preliminary investigations by the Public Prosecutor's Office. In this context, the article referred to the discontinuance of the proceedings at a pre-trial stage against several FPÖ politicians and cited as a particular example the case of Mr Kabas, leader of the Vienna branch of the FPÖ. As pointed out by the domestic courts, the article suggested that in proper proceedings Mr Kabas should have been prosecuted and convicted. Unlike the domestic authorities, the Court, however, considers that the author of the article thereby expressed a value judgment which was based on a sufficient factual basis.

The Court notes in this regard that the article gave detailed reasons for its findings. It referred to the evidence given by Mr Kleindienst and reproduced these statements, allegedly charging Mr Kabas, in its text. The article further informed the reader that Mr Kleindienst had been considered credible by the judge concerned and had also been convicted on the basis of his testimony. The Court finds that in the light of these facts, which remained uncontested by the domestic courts and the Government, it appears indeed not digressive to question the discontinuance of the criminal proceedings against Mr Kabas.

Furthermore, the Court considers that the applicant company's interest in disseminating this information and its opinion based on this, admittedly formulated in a provocative tone, outweighed the interest of Mr Kabas in the circumstances of the case. In this regard the Court observes that the article reported Mr Kabas' own disavowing testimony at the trial in the proceedings against Mr Kleindienst and expressly informed its reader that Mr Kabas was not prosecuted. Moreover, at the time the article was published, investigations against Mr Kabas had already been discontinued so that the article at issue could not possibly influence the outcome of a pending criminal trial (see mutatis mutandis Worm v. Austria, judgment of 29 August 1997, Reports of Judgments and Decisions 1997 V).

Therefore, the Court considers that the standards applied by the Austrian courts were not compatible with the principles embodied in Article 10 and that the domestic courts did not adduce “relevant and sufficient” reasons to justify the interference at issue, namely the finding that the article at issue was in breach of Mr Kabas' right to the presumption of his innocence and the order to pay compensation. Having in mind that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest, the Court finds that the domestic courts overstepped the narrow margin of appreciation accorded to Member States, and that the interference was disproportionate to the aim pursued and thus not “necessary in a democratic society”.

The Court does not accept that the limited nature of the interference, namely the fact that the compensation the applicant company was ordered to pay was moderate, is decisive; what is of greater importance is that the domestic courts restricted the applicant company's freedom of expression while relying on reasons which cannot be regarded as sufficient and relevant. They therefore went beyond what would have amounted to a “necessary” restriction on the applicant company's freedom of expression.

It follows that 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 a total of 4,955.15 euros (EUR) including VAT in respect of pecuniary damage, whereof 2,455.15 EUR related to the costs of Mr Kabas' proceedings and 2,500 EUR to the compensation it was ordered to pay.

The Government did not contest this claim.

Having regard to the direct link between the courts' order to the applicant company to pay Mr Kabas' costs of his proceedings and compensation on the one hand, and the violation of Article 10 found by the Court on the other, the Court finds that applicant company is entitled to compensation under this head. The applicant company has sufficiently shown that the amounts claimed have actually incurred and are reasonable as to the quantum. The Court, thus, awards the claim in full, namely 4,955.15 EUR. This amount includes VAT.

B. Costs and expenses

The applicant company also claimed 1,715.67 EUR including VAT for the costs and expenses incurred before the domestic courts and 2,378.88 EUR including VAT for those incurred before the Court.

The Government did not contest these claims.

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 the total of the amounts claimed for costs and expenses in the domestic proceedings and for the proceedings before the Court. It, thus, awards 4,094.55 EUR under the head of costs and expenses. This amount includes VAT.

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 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, 4,955.15 EUR (four thousand nine hundred fifty five euros and fifteen cents) in respect of pecuniary damage and 4,094.55 EUR (four thousand ninety four euros and fifty five cents) 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 22 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President