European Court of Human Rights

FIRST SECTION

DECISION

Application no. 11873/05
by Josef KLEINDIENST
against Austria

The European Court of Human Rights (First Section), sitting on 8 January 2009 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
George Nicolaou, judges
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 4 April 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Josef Kleindienst, is an Austrian national who was born in Mistelbach and lives in St. Andrä/Wördern. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for European and International Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a former police officer, who wrote and published the book “I confess” giving an insight into his experience as a police officer. This book triggered the so called “snitcher affair” concerning illegal requests from the EKIS-System, the electronic information system of the criminal police hosted by the Federal Ministry of the Interior. On 23 October 2000 the applicant was questioned by the police for economic crimes during which he referred to a Mr. St.

At the relevant time Mr St. was a member of the Niederösterreich Regional Government (Landesregierung) and Ombudsman (Volksanwalt). Previously he was the vice-chairman of the parliamentarian club of the Austrian Freedom Party (Freiheitliche Partei Österreich – FPÖ).

On 14 November 2000 Mr St. requested an interim injunction (Einstweilige Verfügung) ordering the applicant to refrain from disseminating false accusations against him.

The St. Pölten Regional Court dismissed Mr St.'s request, because the applicant had not made the impugned statement against his better judgment. Appeal proceedings were to no avail and the Supreme Court, on 13 September 2001, eventually confirmed the Regional Court's decision.

On 11 March 2002 Mr St. extended his claim regarding the publication of an interview given by the applicant to the daily newspaper “Der Standard” on 9 February 2001. The interview dealt with the fact that the applicant faced several court proceedings initiated by the FPÖ and its members.

On 27 May 2003 the Regional Court found that some statements were inappropriate and ordered the applicant to refrain from making such statements.

The Court of Appeal, on 17 March 2004, upheld the decision and held that no appeal on points of law was possible.

The applicant filed an extraordinary appeal on points of law (außerordentlicher Revsionsrekurs) with the Supreme Court.

On 24 June 2004 the Supreme Court remitted the case back to the court of first instance, because the applicant should have applied to the Court of Appeal to change its decision concerning the refusal to grant an appeal on points of law.

On 27 August 2004 the Court of appeal rejected the application to request an appeal on points of law.

COMPLAINT

The applicant complained under Article 10 of the Convention about the outcome of the proceedings.

THE LAW

By letter dated 15 September 2008 the Government's observations were sent to the applicant, who was requested to submit any observations together with any claims for just satisfaction in reply by 27 October 2008.

By letter dated 12 November 2008, sent by registered post, the applicant was notified that the period allowed for submission of the applicant's observations had expired and that no extension of time had been requested. The applicant's attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. This letter was returned to the Court bearing the mark “moved”. The applicant has not informed the Registry of any change in his address.

The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Søren Nielsen Christos Rozakis
Registrar President