by VERLAGSGRUPPE NEWS GMBH
The European Court of Human Rights (First Section), sitting on 19 October 2009 as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 23 October 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Verlagsgruppe News GmbH, is a limited liability company with its seat in Vienna. It was represented before the Court by Mr H. Simon, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Legal Department at the Federal Ministry for European and International Affairs.
I. THE CIRCUMSTANCES OF THE CASE
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The article at issue and its background
In 2005 the Republic of Austria celebrated its 60th anniversary.
On 14 April 2005 the Federal Council (Bundesrat) – the second chamber of the Austrian parliament, composed of representatives of the Länder – discussed the question whether in the context of this celebration and commemoration all persons who had been convicted as deserters by the National Socialist regime should be rehabilitated by a legislative act.
During that debate Mr S.K., a member of the Freedom Party (Freiheitliche Partei Österreichs – “the FPÖ”) and President designate of the Federal Council, took the floor and, in so far as relevant in the context of the present case, stated as follows:
“As to the war: Deserters, a combat unit, but in part murderers of their comrades – an example from the Arctic front. Russians with music were playing by the bunkers to attract deserters, German soldiers who might cross over to the other side. Nine comrades in the bunker, among them a cousin of mine, were shot dead by two deserters. All nine were killed by two deserters in the bunker. That is the problem!
So we have to make a distinction. We have to distinguish which people we are dealing with. Deserters of this kind are murderers. That was how it always was and how it must be in the future, and so I would also like to have some understanding from all those who have stepped up very forcefully to defend the present situation.
Deserters, partisans in Carinthia, who killed a father in front of his children – these were not isolated incidents. A catastrophic state of affairs. They were lieutenants, they were captains, they were the ringleaders of small groups of partisans.”
Mr S.K.’s speech was widely reported in the media and attracted strong criticism. It also led to fierce protests from other political parties as regards his taking office as President of the Federal Council. Eventually, Mr S.K. stepped down as a member of the Federal Council.
In its issue of 2 May 2005 the weekly Profil, of which the applicant company is the owner, published a three-page article with the headline “Phantoms of the present” (Gespenster der Gegenwart). Its sub-heading read as follows:
“NS revisionism. Comments playing down the National Socialist era have intruded on the Republic’s ongoing jubilee celebrations. That is embarrassing, but the price to pay for a coalition with the Freedom Party.”
The thrust of the article was that revisionist views were still widespread in the ranks of the Freedom Party and its offspring the Alliance for the Future of Austria (Bündnis Zukunft Österreich – “the BZÖ”) and had resurfaced on the occasion of the celebrations.
The article started by noting that the Federal Chancellor, Mr Schüssel, had said, in his official speech at the ceremony marking the 60th anniversary of the Republic, that there was no place in Austria’s institutions for people who had doubts about the existence of the gas chambers. It analysed this statement as being directed at Mr J.G. (name given in full), a member of the Federal Council who had said in a TV interview on the eve of the ceremony that one should “examine the question of gas chambers in the Third Reich from a physical and scientific point of view”, adding that he would not say “yes or no” but wanted to “discuss the issue seriously”.
The article went on to say that, in contrast, Mr Schüssel had not found it necessary to say anything about Mr S.K. (name given in full), the then President designate of the Federal Council, who had labelled Wehrmacht deserters as “in part being murderers of their comrades” and had deplored the “brutal persecution” of Nazis after 1945.
The further text consisted mostly of examples of statements made by politicians of the FPÖ or BZÖ, which were adduced in order to demonstrate that there was a tendency, if not to negate, at least to play down the horrors of the National Socialist regime and the gas chambers in particular. The article included a number of pictures of FPÖ or BZÖ politicians, each of which was accompanied by a short statement. Mr S.K.’s picture was on the third page of the article accompanied by the statement: “Wehrmacht deserters are murderers of their comrades.”
B. The proceedings giving rise to the application
On 12 May 2005 Mr S.K. brought proceedings under the Media Act (Mediengesetz) against the applicant company, claiming compensation for defamation in respect of the statement accompanying his picture in the above-meentioned article.
On 18 November 2005 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) granted Mr S.K.’s claim. Relying on section 6 of the Media Act, it found that the impugned statement fulfilled the requirements of the offence of defamation under Article 111 of the Criminal Code (Strafgestzbuch) and ordered the applicant company to pay 4,000 euros (EUR) in compensation. In addition it ordered the applicant company to publish its judgment and to pay the costs of the proceedings.
The court, having regard to the text accompanying Mr S.K.’s picture, found that the statement contained an allegation that he had in a summary manner qualified all deserters from the Wehrmacht as murderers. The fact that the text on the first page of the article was more precise in that it quoted Mr S.K. as having said that “in part deserters are murderers of their comrades” was irrelevant since many readers did not read the article but would just look at the picture and the eye-catching statement accompanying it.
Furthermore, the court noted that the applicant company had adduced evidence to show that the impugned statement would not be misunderstood by the reader if seen against the background of the article and the public debate which Mr S.K.’s speech had sparked off. However, the wording of the statement was unequivocal. Consequently, no taking of evidence was required. The reference to another judgment relating to the same statement but coming to a different conclusion with regard to its meaning was also irrelevant as that judgment was not final.
The court also considered that the applicant company had failed to prove the truth of the impugned statement. According to the record of the Federal Council proceedings, Mr S.K.’s speech on the question whether all Wehrmacht deserters should be rehabilitated had distinguished between deserters who had shot their comrades or others and those who had not committed such crimes.
On 27 December 2005 the applicant company appealed. It maintained that the hidden message conveyed by Mr S.K.’s speech had been that a considerable portion of Wehrmacht deserters were murderers. Both examples of desertion given by him had involved murder, one being the shooting of two deserters’ comrades, the other the shooting of fathers in front of their children. He had added that these were no exceptions. In sum he had tried to emotionalise the debate and to convey the impression that “deserters are murderers”. The applicant company requested that the opinion of a linguistic expert be obtained in order to show that this had been the effect of Mr S.K.’s speech.
The statement accompanying Mr S.K’s picture was on the one hand a shortened version of the message conveyed by him, and on the other hand it was meant to criticise him. In any case, the statement was not to be examined in isolation but in the context of the article as a whole. In the text Mr S.K. had been quoted as saying “in part deserters are murderers of their comrades”. Profil, being a political weekly, was aimed at informed readers, who did not only have a quick look at pictures and headlines, but mostly read the articles and could thus form an opinion.
On 19 April 2006 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant company’s appeal. At the hearing it had read out the article at issue and the transcript of Mr S.K.’s speech.
Supplementing the reasons given by the Regional Court, it noted that the impugned statement accompanying Mr S.K.’s picture had indeed created the impression that he had called all deserters murderers. A considerable number of Profil’s readers read no more than headlines, sub-headings and the text accompanying pictures. Such readers could not know that the statement was a shortened version of what Mr S.K. had said. Moreover, the text which contained more detailed information was placed on another page. Thus, the fact that the text had correctly quoted Mr S.K.’s statement was not relevant. Nor was the fact that his statement had been widely reported in the media and led to a political outcry which had resulted in his stepping down as a member of the Federal Council.
Turning to Mr S.K.’s speech, the court held that it did not allow the conclusion that he had generally labelled Wehrmacht deserters as murderers of their comrades. He had argued that one had to distinguish and had adduced examples to underline this position.
The appellate court also confirmed the Regional Court’s view that the taking of expert evidence as regards the meaning of Mr S.K.’s speech was not required since the court was able to establish the meaning without difficulty.
The judgment was served on the applicant company’s counsel on 4 May 2006.
C. Reopening of the proceedings following communication of the application
Following communication of the application in the present case, the respondent Government informed the Court that the Procurator General had filed a plea of nullity for the preservation of the law.
In a judgment of 26 February 2009 the Supreme Court (Oberster Gerichtshof) set aside the judgments of 18 November 2005 and 19 April 2006, finding that they violated the provisions of the Media Act and the Convention, and ordered a rehearing of the case.
The Supreme Court held that statements disseminated in the media always had to be considered in their context. This principle applied in particular to articles which reported on a political debate. A member of parliament who voiced opinions in a public debate had to be aware that his statements would be disseminated by the media in a shortened manner. There was no room for an isolated assessment of headlines, sub-headings or brief texts accompanying pictures. Any other interpretation would be in conflict with Article 10 of the Convention and its requirements regarding the freedom of the press in the context of public debate. Journalistic freedom also covered the form in which a message was conveyed. The media were entitled to use effective headlines, announcements of articles or short comments accompanying pictures in order to attract the interest of the reader. The average reader was aware that such short texts were of a summary nature and were to be understood in the context of the report or article as a whole. It followed that the judgments at issue, which had assessed the text accompanying Mr S.K.’s picture on its own without having due regard to the contents of the article as a whole, had wrongly applied the law.
In the reopened proceedings, the Vienna Regional Criminal Court held a hearing on 21 May 2008. In a judgment of the same day it dismissed Mr S.K.’s claims and ordered him to pay the costs of the proceedings.
Following the approach outlined by the Supreme Court, it found that the impugned statement accompanying Mr S.K.’s picture had to be read in the context of the article, which had quoted him correctly as stating that “NS deserters were in part murderers of their comrades”. It was not disputed that he had actually made that statement in his speech before the Federal Council. Having regard to the contents of that speech, the impugned statement was a shortened one but it had not distorted the meaning of what Mr S.K. had said.
On 12 January 2009 the Vienna Court of Appeal dismissed an appeal by Mr S.K.
II. RELEVANT DOMESTIC LAW
The following provisions of the Code of Criminal Procedure, which also apply to proceedings under the Media Act, are relevant in the context of the present case:
“(2) The Procurator General at the Supreme Court may ex officio or on an application by the Federal Ministry of Justice lodge a plea of nullity for the preservation of the law in respect of judgments of criminal courts that are based on a breach or the incorrect application of the law, ... even if the defendant or the prosecution has not made use of the remedy of a plea of nullity within the statutory time-limit. ...”
“... If the Supreme Court finds that the plea of nullity for the preservation of the law is well-founded, it shall acknowledge that the judgment delivered in the criminal case in issue ... has breached the law. This finding shall as a rule have no effect on the defendant. However, if a penalty was imposed on the defendant as a result of such a judgment that has been declared null and void, it shall be open to the Supreme Court, at its discretion, either to acquit the defendant or to apply a more lenient sentence or, according to the circumstances, to order the reopening of the criminal proceedings instituted against him.”
“(1) If a judgment of the European Court of Human Rights finds a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (BGBl no. 210/1958), or one of the Protocols thereto, as a result of a decision or order of a criminal court, the proceedings shall be reopened on application in so far as it cannot be ruled out that the violation may have had an adverse effect for the person concerned on the content of a decision of a criminal court.
(2) Applications to reopen proceedings shall be determined in all cases by the Supreme Court. An application may be submitted by the person affected by the violation found and by the Procurator General; ...”
The applicant company complained under Article 10 of the Convention that the Vienna Regional Criminal Court’s judgment of 18 November 2005, as upheld by the Vienna Court of Appeal’s judgment of 19 April 2006, violated its right to freedom of expression. It submitted in particular that the courts had failed to consider the impugned statement in the context of the article as a whole and against the background of the political debate which had been caused by Mr S.K.’s speech. Moreover, the applicant company complained under Article 6 about the courts’ refusal to hear evidence from a linguistic expert in order to show that the impugned statement corresponded to the hidden message conveyed by Mr S.K.’s speech.
In their observations the Government, referring to the Supreme Court’s judgment of 26 February 2009, asked the Court to strike the application out of its list pursuant to Article 37 § 1 (b) of the Convention or, alternatively, to declare it inadmissible on the ground that the applicant company could no longer claim to be the victim of the alleged violation. Following the termination of the reopened proceedings the Government repeated their request.
The applicant company contested the Government’s position and asserted that although the impugned judgments had been set aside, it had not received compensation for the costs incurred for the publication of the judgment and in the proceedings before the Court. In respect of the publication costs it conceded that it had brought a claim for compensation under section 39 of the Media Act in the version in force at the time the impugned judgments had been given. However, these proceedings were still pending. Moreover, if the courts were to find that the amended version of section 39 of the Media Act applied, it would receive compensation for the publication of the judgment of 18 November 2005 only at a lower level, namely that of the cost price instead of the price chargeable for an advertisement.
The Court reiterates that an applicant’s status as a victim may depend on compensation being awarded at domestic level on the basis of the facts about which he or she complains before the Court and on whether the domestic authorities have acknowledged, either expressly or in substance, the breach of the Convention. Only when those two conditions are satisfied does the subsidiary nature of the Convention preclude examination of an application (see, for instance, Scordino v. Italy (dec.), no. 36813/97, ECHR 2003 IV).
The Court observes that the Supreme Court, in its judgment of 26 February 2009, expressly acknowledged that the judgments complained of violated Article 10 of the Convention. Moreover, its line of reasoning reflected the relevant criteria developed by the Convention case-law. Furthermore, the Court observes that the applicant company was not awarded compensation. The applicant company argued that it could still claim to be a victim as it had not received compensation for costs incurred and for the pecuniary damage resulting from the publication of the impugned judgment of 18 November 2005.
In the present case the Court is not called upon to decide on this issue as it considers that, in any case, the requirements for striking the application out of the list are met.
In this connection the Court reiterates that, when establishing whether the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention it must examine, firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of these circumstances have also been redressed (see Pisano v. Italy [GC] (striking out), no. 36732/97, § 42, 24 October 2002, and Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 45, 7 December 2007).
As was already noted above, the Supreme Court set aside the contested judgments. In the reopened proceedings, the Vienna Regional Criminal Court followed the Supreme Court’s reasoning and consequently dismissed Mr S.K.’s claims under the Media Act in a judgment of 21 May 2008. The Vienna Court of Appeal, in a judgment of 12 January 2009, dismissed the claimant’s appeal. That judgment has become final.
The applicant company has thus already obtained a rehearing of the case, an outcome which would normally follow a finding of a violation of the Convention by the Court pursuant to Article 363a of the Code of Criminal Procedure, which applies in proceedings under the Media Act (see above). A further examination of the present case before the Court is thus not required.
As to the question whether the effects of a possible violation have been redressed, the Court notes that it is not in dispute that the applicant company can claim compensation in respect of the costs of the publication of the judgment originally complained of. It is not material that these proceedings are still pending (see, mutatis mutandis, Pisano, cited above, § 47). The applicant company argued that it risked obtaining a lower amount of compensation should the courts find that the new version of section 39 of the Media Act applied. However, the Court notes that the applicant company has not submitted any further details and has not shown that the reduction would be such as to make the redress meaningless.
Finally, the applicant company claimed that it had not received compensation for the costs of the Convention proceedings, amounting to EUR 2,275.93, inclusive of value-added tax. However, pursuant to Rule 43 § 4 of the Rules of Court, the Court has discretion to award costs if a case is struck out of the list. That the applicant company still has a claim for costs does not therefore prevent the application of Article 37 § 1 of the Convention.
Furthermore the Court is satisfied that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, the case should be struck out of the list.
The Court finds it appropriate in the circumstances of the case to make an award in respect of the costs of the Convention proceedings (Rule 43 § 4). The Government commented that the costs claimed were excessive. The Court considers that they were necessary and reasonable as to quantum and awards them in full. Furthermore, 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
Decides to strike the application out of its list of cases;
(a) that the Government is to pay the applicant company, within three months from the date of this decision, EUR 2,275.93 (two thousand two hundred and seventy-five euros ninety-three cents), value-added tax included, 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Søren Nielsen Christos Rozakis