Lexploria

Application No. 24500/94

by Raimund PLAUTZ

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 10 April 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 May 1994 by

Raimund PLAUTZ against Austria and registered on 29 June 1994 under

file No. 24500/94;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the information submitted by the respondent

Government on 4 and 16 December 1996 and the comments submitted by the

applicant on 29 January 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1963 and residing

in Klagenfurt. Before the Commission he is represented by Mr. G. Fink

and Mr. P. Bernhart, lawyers practising in Klagenfurt.

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

summarised as follows.

The applicant is a butcher and member of the Carinthian Butchers

Association, a registered co-operative with limited responsibility

(Kärntner Fleischverband, registrierte Genossenschaft mit beschränkter

Haftung). At the time of the following events he was member of the

co-operative's Supervisory Board (Aufsichtsrat) and appointed by the

Board as cash auditor (Kassenprüfer).

On 6 May 1993, an employee of the Association A.G. brought a

private prosecution against the applicant for defamation (üble

Nachrede) with the Klagenfurt District Court (Bezirksgericht). He

submitted that on 29 March 1993 the applicant had carried out a cash

audit. When signing of the record of the cash audit the next day, the

applicant had made the statement: "this is theft" ("das ist Diebstahl")

with reference to A.G. The applicant thus had accused him of a criminal

offence, which however, was untrue and constituted defamation. A.G.

requested that A.W., G.H., A.K., A.S be heard as witnesses.

On 16 June 1993 the applicant, represented by counsel, commented

on the private prosecution. He admitted that he had made the

incriminated statement but claimed that he had been justified in doing

so under Section 111 para. 3 and 114 of the Penal Code. In the course

of the cash audit he had discovered that the book-keeping of A.G. was

incorrect and incomplete, in particular that no proper cash-book

(Kassabuch) existed. The applicant requested the court to hear J.S.

and A.W. as witnesses and to obtain the opinion of an expert on

book-keeping.

On 12 July 1993 the District Court held a hearing, in which it

heard the parties. The Court decided to adjourn the hearing in order

to hear the witnesses requested by the parties and to obtain the

opinion of an expert on book-keeping.

On 10 August 1993 the court-appointed expert submitted his

report. He found that the book-keeping had not been correct, which had

caused financial damage to the Association.

On 21 September 1993 a further court hearing took place.

The District Court heard A.W., G.H., A.K. and A.S. as witnesses.

The parties did not request the taking of further evidence.

On 21 September 1993 the Klagenfurt District Court acquitted the

applicant of the charge of defamation.

The District Court found that A.G. had, at the relevant time,

been in charge of the department of the Association dealing with skins

of slaughtered animals. The workers in this department had the task

of preparing the skins before sending them to a tannery. For this

purpose meat rests were removed and suet scratched off. It had been

a long-standing practice that the meat was sold to third persons as dog

food and the suet scratched off sold back to the Association. The

benefits so drawn had been distributed among the workers as an

incentive to properly carry out this difficult and tiresome work. The

applicant had been familiar with this practice insofar as it concerned

the selling of the meat, although he had repeatedly opposed it, but not

as regards the selling back of the suet to the Association. Only in the

course of the cash audit had he found out about this practice. The

District Court concluded that the applicant had made the incriminated

statement in the fulfilment of a legal duty, namely in his position as

cash auditor, and it was therefore justified under Section 114 para. 1

of the Penal Code.

The District Court based its findings mainly on the statements

of the applicant, who had stated that until the time of the cash audit

he had been unfamiliar with the practice of selling the suet to the

Association. It found this statement credible. On the other hand, the

District Court found the statements of A.S., the general manager

(Obmann) of the Association, and A.K., who had said that they had

informed the applicant earlier about this practice, implausible. With

regard to the statement of A.K., according to which he had informed the

applicant on the day before the latter had made the incriminated

statement on the practice of selling suet, the District Court found

that this had been impossible because the day before the cash audit had

been a Sunday.

On 2 December 1993 A.G. appealed against the District Court's

judgment.

On 11 January 1994 the Klagenfurt Regional Court (Landesgericht)

held a court hearing in the appeal proceedings. The Court decided to

repeat the taking of evidence.

On 25 January 1994 the Regional Court held a further hearing.

The Court heard the parties and also A.W, G.H. A.K. and A.S. as

witnesses. At the end of the hearing the applicant requested that also

R.R. and K.I. should also be heard as witnesses, in order to prove that

the selling of suet to the Association had not been a long-standing

practice and that the management and Supervisory Board had not been

aware of this practice. Upon a question by the Presiding Judge the

applicant specified that R.R. was a member of the management (Vorstand)

and deputy director of the Supervisory Board, while K.I. had been a

member of the Supervisory Board since November 1993. This request was

refused by the Regional Court.

On the same day the Regional Court granted A.G.'s appeal, quashed

the District Court's judgment and convicted the applicant of defamation

(üble Nachrede) under Section 111 para. 1 of the Penal Code

(Strafgesetzbuch). It sentenced the applicant to a fine of 40 daily

rates (Tagessätze) of 250 AS each or 20 days of imprisonment in

default. This judgment was served on the applicant on 31 March 1994.

The Regional Court found, inter alia, that the applicant had been

familiar with the practice of selling suet back to the Association

before he had accused A.G. of theft. He had been informed by A.S.

about this practice and again by A.K. on 29 March 1993. Therefore, the

applicant had made his defamatory statement knowing it to be untrue

(wider besseres Wissen).

As regards the assessment of evidence, the Regional Court found

the statements of A.S. and A.K. were plausible. As regards the

District court's arguments on the implausibility of A.K.'s statement,

the Regional Court noted that a mistake must have occurred since the

29 March 1993 had been a Monday. As regards the statements of A.S.,

the Regional Court noted that this witness had stated not only in the

present proceedings but also in Labour Court proceedings that he had

informed the applicant in 1991 about the practice of selling meat rests

and suet. Therefore it had not been necessary to hear also the

witnesses requested by the applicant. A.S., who had been the general

manager of the Association, had stated in a plausible way that the

Supervisory Board had been informed of this practice and the applicant

himself had admitted that he had been informed by A.G. before the

signing of the cash audit record on 30 March 1993.

On 18 May 1994 the applicant asked the Procurator General

(Generalprokurator) to introduce a plea of nullity for the preservation

of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) in his

case. He submitted that the Regional Court should have applied

Section 114 para. 1 of the Penal Code as he had been justified in

making the incriminated statement. He also submitted that the Regional

Court had disregarded the expert opinion and had refused to take the

evidence he had requested without sufficiently motivating its refusal.

On 27 June 1994 the Procurator General introduced a plea of

nullity for the preservation of the law with the Supreme Court

(Oberster Gerichtshof). The Procurator General submitted that the

applicant had had the duty to carry out a cash audit. He had

criticised a practice which, in his view, had been dubious and could

have caused damage to the Association. In such circumstances his

statement had been justified under Section 114 para. 1 of the Penal

Code as he had to inform the persons concerned about his observations

and the statement he had made did not appear disproportionate. It was

irrelevant whether or not the applicant had had previous knowledge of

the criticised practice of selling suet or not.

On 10 August 1994 the Supreme Court dismissed the plea of

nullity. The Supreme Court found that it could in principle agree with

the legal arguments of the Procurator General. However, they had to

be applied in the context of the particular circumstances of the case.

On the basis of the facts established by the Regional Court, the

applicant had made his defamatory statement knowing it to be untrue.

Thus, he could not rely on the ground of justification provided for by

Section 114 para. 1 of the Penal Code.

On 6 November 1996 the Supreme Court, upon a further plea of

nullity for the preservation of the law lodged by the Procurator

General, quashed the Regional Court's judgment of 25 January 1994 and

ordered that a new hearing be held on the applicant's appeal. The

Supreme Court found that the Regional Court's judgment violated

Article 6 paras. 1 and 3 of the Convention because in the appeal

proceedings the Regional Court had refused to hear witnesses requested

by the applicant.

On 8 January 1997 the Regional Court acquitted the applicant.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

the criminal proceedings conducted against him were unfair. He submits

that the Regional Courts refused to hear the witnesses he had requested

without giving any valid reasons. It further disregarded the expert

opinion. Furthermore, the Regional Court incorrectly applied

Section 114 para. 1 of the Penal Code.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 May 1994 and registered on

29 June 1994.

On 15 May 1996 the Commission decided to communicate the

application to the respondent Government.

On 17 July 1996 the Government requested an extension of the

time-limit for submitting its observations and informed the Commission

the Procurator General had introduced a plea of nullity for the

preservation of the law with the Supreme Court in the applicant's case.

On 4 December 1996 the Government informed the Commission that the

Supreme Court had quashed the Regional Court's judgment and on

16 December 1996 it submitted a copy of the Supreme Court's decision

of 6 November 1996.

On 29 January 1997 the applicant informed the Commission that

meanwhile, on 7 January 1997, the Regional Court had acquitted him.

He therefore considered the matter resolved and did not wish to pursue

his application.

THE LAW

The Commission notes that following his acquittal by the Regional

Court on 8 January 1997 the applicant does not wish to pursue his

application.

In these circumstances the Commission finds pusuant to Article 30

para. 1 (a) (Art. 30-1-a) of the Convention that it is not justified

to continue the examination of the present application. Moreover, the

Commission finds no reason 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, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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PLAUTZ v. AUSTRIA

PLAUTZ v. AUSTRIA

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