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EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 20915/92

Familiapress Zeitungs-GmbH

against

Austria

REPORT OF THE COMMISSION

(adopted on 3 March 1995)

TABLE OF CONTENTS

Page

I. THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . 1

(paras. 1-3)

II. SUMMARY OF THE FACTS. . . . . . . . . . . . . . . . . . . . . 2

(paras. 4-5)

III. THE PROCEEDINGS BEFORE THE COMMISSION . . . . . . . . . . . . 3

(paras. 6-13)

IV. THE DECISION OF THE COMMISSION. . . . . . . . . . . . . . . . 5

(paras. 14-17)

ANNEX: DECISION ON THE ADMISSIBILITY. . . . . . . . . . . . . . 6

I. THE PARTIES

1. This Report, which is drawn up by the Commission in accordance

with Article 30 para. 1 of the Convention, concerns the application

brought by Familiapress Zeitungs-Gmbh against Austria. The applicant

is a limited company registered in Vienna which is publishing a weekly

newspaper.

2. In the proceedings before the Commission the applicant was

represented by Mr. M. Graff, a lawyer practising in Vienna.

3. The respondent Government were represented by their Agent,

Mr. C. Cede, Ambassador, Head of the International Law Department at

the Federal Ministry of Foreign Affairs.

II. SUMMARY OF THE FACTS

4. The facts of the case are set out in the Commission's decision

on admissibility of 30 November 1994, attached hereto as an appendix

and can be summarised as follows:

5. The case concerns an injunction under the Unfair Competition Act

prohibiting the applicant from publishing parts of a cartoon which had

insulted the "Krone", the largest Austrian daily newspaper. The

applicant complained to the Commission under Article 10 of the

Convention.

III. THE PROCEEDINGS BEFORE THE COMMISSION

6. The application was introduced on 21 July 1992 and registered on

6 November 1992.

7. On 1 December 1993 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

8. On 24 February 1994 the Government submitted their observations.

The observations in reply by the applicant were submitted on

21 April 1994.

9. On 30 November 1994 the Commission declared the application

admissible and took a provisional vote on the question of a violation

of Article 10 (Art. 10) of the Convention.

10. By letter of 24 January 1995 the editing company Mediaprint,

owner of the "Krone", informed the Commission that, in his request for

leave to appeal to the Supreme Court, concerning further proceedings

under the Unfair Competition Act, Mr. Graff, acting as counsel of

Familiapress, had disclosed the Commission's decision to declare the

application admissible and also the provisional opinion of the

Commission on the question of violation. The Commission's admissibility

decision as well as the letter informing him on a strictly confidential

basis about the above provisional opinion were attached to the said

request.

11. Subsequently, the parties were requested to comment on this

matter before 17 February 1995. By letter of 10 February 1995 the

representative of the applicant company replied that the facts as

submitted by Mediaprint were correct. However, he pointed out that he

had asked for confidential treatment of the Commission's letter and had

not expected the other party to denounce him before the Commission. The

Government did not make any comments.

12. On 2 March 1995 the Commission decided to strike the present

application out of its list of cases, pursuant to Article 30 para. 1

(c) (Art. 30-1-c) of the Convention.

13. It adopted the present Report and decided to transmit it to the

Committee of Ministers and the Parties for information and to publish

it. The following members were present when the Report was adopted:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

E. KONSTANTINOV

G. RESS

IV. THE DECISION OF THE COMMISSION

14. The Commission notes that the applicant company used confidential

information as an argument for obtaining leave to appeal in domestic

court proceedings. In particular it disclosed the Commission's

provisional opinion on the question of a violation of Article 10

(Art. 10) and even attached the letter informing it on a strictly

confidential basis of the said provisional opinion. The domestic

proceedings at issue were similar to the proceedings which gave rise

to the present application, in that they related to a dispute under the

Unfair Competition Act between the same parties, i.e. Mediaprint, the

editor of the "Krone", and the applicant company. The submissions were

addressed to the Supreme Court and the applicant company must have been

aware of the fact that they would be brought to the attention of the

opposite party, in accordance with the relevant procedural rules.

15. The Commission considers that the parties are obliged to respect

the confidentiality of its proceedings. In this respect, the Commission

refers to Article 33 (Art. 33) of the Convention which provides that

the "Commission shall meet in camera" and to Rule 17 of its Rules of

Procedure. In the present case, the applicant company disclosed the

Commission's provisional opinion on the question of a violation of the

Convention for the purposes of pleading in domestic court proceedings.

According to the Commission's practice, information on its provisional

opinion is provided to the parties with a view to facilitating friendly

settlement negotiations. At this stage, the applicant is reminded of

the strictly confidential nature of this information. The Commission

finds that the applicant company's conduct constitutes a serious breach

of confidentiality. Furthermore, the explanations given by the

applicant company do not disclose any justification for its conduct.

16. In these circumstances, the Commission considers that it is no

longer justified to continue the examination of the application, within

the meaning of Article 30 para. 1 (c) (Art. 30-1-c) of the Convention.

17. Moreover, as regards the issues raised in the present case, the

Commission finds no reasons of a general character affecting respect

for Human Rights, as defined in the Convention, which require the

further examination of the application by virtue of Article 30 para. 1

(Art. 30-1) in fine of the Convention.

For these reasons, the Commission by a majority

DECIDES TO STRIKE APPLICATION No. 20915/92 OFF ITS LIST OF CASES;

ADOPTS THE PRESENT REPORT;

DECIDES TO SEND THE PRESENT REPORT to the Committee of Ministers for

information, to send it also to the parties' representatives, and to

publish it.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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FAMILIAPRESS ZEITUNGS-Gmbh v. Austria

FAMILIAPRESS ZEITUNGS-Gmbh v. Austria