Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23728/94

by Gerhard OBERSCHLICK

against Austria

The European Commission of Human Rights sitting in private on

16 May 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

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

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

Mr. H.C. KRÜGER, Secretary to the Commission.

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 February 1994

by Gerhard OBERSCHLICK against Austria and registered on 21 March 1994

under file No. 23728/94;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant, an Austrian national born in 1942 and residing in

Vienna, is a journalist by profession and editor of the periodical

"Forum". Since 1986 the applicant is also its owner and publisher.

A. Particular circumstances of the case

On 23 May 1991 the European Court of Human Rights delivered its

judgment in a case which had been introduced by the applicant (Eur.

Court H.R., Oberschlick judgment, Series A no. 204). In this judgment

the European Court of Human Rights found a violation of Article 10 of

the Convention as regards the applicant's conviction for defamation for

having published in issue No. 352 of 20 April 1983 of the periodical

"Forum" a criminal information he had laid against a politician. The

European Court of Human Rights also found a violation of Article 6

para. 1 of the Convention in that three of the judges of the Court of

Appeal who decided on the applicant's appeal had already decided on an

earlier appeal of the applicant in the same proceedings.

On 20 November 1991 the applicant requested the Vienna Regional

Court for Criminal Matters (Landesgericht für Strafsachen) to authorise

him under Section 39 para. 2 of the Media Act to publish a notice about

the outcome of the criminal proceedings, referring to the above

Oberschlick judgment of the European Court for Human Rights as the last

decision in his case. He submitted that in 1983 the Vienna Regional

Court had ordered the publisher of "Forum" to publish an information

under Section 37 of the Media Act about the institution of criminal

proceedings against the applicant. His conviction of defamation in

these proceedings was found by the European Court of Human Rights to

be in violation of Article 10 of the Convention. Having regard to

Article 53 of the Convention, a judgment of the European Court of Human

Rights should be considered equal to a final decision by a domestic

criminal court. Therefore a publication about the Oberschlick judgment

of the European Court of Human Rights at the expense of the State

should be authorised.

On 18 March 1993 the Regional Court refused the applicant's

request of 20 November 1991. It found that Section 39 para. 2 of the

Media Act only concerned the termination of the criminal proceedings

by the Austrian courts under domestic law. This decision was served

on the applicant on 2 April 1993 and contained the printed information

that an appeal could be lodged within fourteen days.

On 14 April 1993 the applicant appealed to the Vienna Court of

Appeal (Oberlandesgericht). Invoking Article 53 of the Convention, he

requested, inter alia, the Court of Appeal to apply to the

Constitutional Court (Verfassungsgerichtshof) for review of the

constitutionality of Section 39 para. 2 of the Media Act.

On 7 July 1993 the Vienna Court of Appeal declared the

applicant's appeal inadmissible as no appeal lay against a decision

under Section 39 para. 2 of the Media Act. The Court of Appeal added

that, in any event, the Regional Court's decision was correct. This

decision was served on the applicant on 27 August 1993.

B. Relevant domestic law

Upon the request of the prosecutor, the competent court has to

order that short information on the institution of criminal proceedings

on the charge of an offence committed in the media (in particular

defamation or insult) be published in the medium concerned. The costs

of this publication are part of the costs of the criminal proceedings

themselves (Section 37 of the Media Act). In case of conviction of an

offence committed in the media the court, upon the request of the

prosecutor, has to order the publication of the judgment in the medium

concerned (Section 34 of the Media Act).

If the court had ordered previously the publication of

information under Section 37 of the Media Act and the criminal

proceedings mentioned therein did not result in the seizure of the

relevant publication (which is linked to a conviction), the publisher

may request that information about the outcome of the criminal

proceedings be published at the expense of the State (Section 39

para. 2 of the Media Act).

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. 1 about

the refusal by the Vienna Regional Court to authorise the publication

of information about the outcome of criminal proceedings under Section

39 para. 2 of the Media Act. He submits that this decision violated

his right to property because if he wished to inform the public about

the outcome of the proceedings before the Convention organs he had to

do this at his own expense. He also invokes Article 53 of the

Convention.

2. He also complains about discrimination prohibited by the

Convention in that Section 39 para. 2 of the Media Act only provided

for the publication of the outcome of criminal proceedings at the

expense of the State if domestic proceedings ended without a conviction

and thus without the order of seizure of the relevant publication,

while this provision did not apply if someone obtained a finding of a

violation by the European Court of Human Rights. He relies on Article

14 of the Convention in conjunction with Article 1 of Protocol No. 1.

3. The applicant complains under Article 6 para. 1 of the Convention

about the proceedings regarding his request under Section 39 para. 2

of the Media Act in several respects. He submits that the Court of

Appeal failed to apply to the Constitutional Court for review of the

constitutionality of Section 39 para. 2 of the Media Act as it did not

sufficiently take into account Austria's obligation under Article 53

of the Convention to comply with judgments of the European Court of

Human Rights. He also submits that the Court of Appeal failed to hold

a public hearing on his appeal and to pronounce its decision in public

and that his case was not heard within a reasonable time as required

by Article 6 para. 1 of the Convention.

THE LAW

1. The applicant raises various complaints about Austrian court

decisions and also about the proceedings concerned. The Commission

notes that the Vienna Regional Court dismissed the applicant's request

on 18 March 1993, and that the applicant only lodged his application

on 26 February 1994. On 7 July 1993 the Vienna Court of Appeal declared

the applicant's appeal inadmissible as no appeal lay against the

Regional Court's decision. The question therefore arises whether the

Court of Appeal's decision can, in these circumstances, be regarded as

the "final" decision for calculating the six months' time-limit under

Article 26 (Art. 26) of the Convention. However, the Commission notes

that the Regional Court's decision of 18 March 1993 contained the

printed information that an appeal could be lodged and that the

applicant lodged his appeal relying on this information.

Under these circumstances the Commission finds that the applicant

has complied with the six months' time-limit under Article 26 (Art. 26)

of the Convention.

2. The applicant complains under Article 1 of Protocol No. 1 (P1-1)

about the refusal by the Vienna Regional Court to authorise the

publication of information about the outcome of criminal proceedings

under Section 39 para. 2 of the Media Act.

The Commission finds that the Vienna Regional Court's refusal of

18 March 1993 to authorise a publication of the outcome of the criminal

proceedings in his periodical "Forum" at the expense of the State did

not interfere with his right to peaceful enjoyment of property as

protected by Article 1 of Protocol No. 1 (P1-1).

It follows that this part of the application must be rejected as

incompatible ratione materiae with the provisions of the Convention in

accordance with Article 27 para. 2 (Art. 27-2) of the Convention.

3. He further complains under Article 14 of the Convention in

conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1) about

alleged discrimination in the application of this provision by the

Austrian courts.

The Commission recalls that Article 14 (Art. 14) of the

Convention has no independent existence in that, as stated in the

Convention itself, it covers only "rights and freedoms recognised in

the Convention" (No. 10733/84, Dec. 11.3.85, D.R. 41 p. 211; No.

10503/83, Dec. 16.5.85, D.R. 42 p. 162).

The Commission refers to the above finding that the complaint

under Article 1 of Protocol No. 1 (P1-1) falls outside the scope of the

Convention and therefore is incompatible ratione materiae with its

provisions.

It follows that this part of the application must likewise be

rejected as incompatible ratione materiae with the provisions of the

Convention in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention.

4. The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention about the proceedings regarding his

request under Section 39 para. 2 of the Media Act in several respects.

Article 6 para. 1 (Art. 6-1) of the Convention, as far as

relevant, provides as follows:

"In the determination of his civil rights and obligations

or any criminal charge against him, everyone is entitled to

a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The Commission finds that the proceedings before the Austrian

courts regarding the applicant's request of 20 November 1991 did not

determine any criminal charge against the applicant.

It remains to be examined whether they concerned the

determination of the applicant's civil rights and obligations.

In this respect the Commission recalls that Article 6

(Art. 6) of the Convention only applies to disputes over "rights and

obligations" which can be said, at least on arguable grounds, to be

recognised under domestic law. Article 6 (Art. 6) does not in itself

guarantee any particular content for "rights and obligations" in the

substantive law of the Contracting States (see Eur. Court H.R., James

and others judgment of 21 February 1986, Series A no. 98, p. 46, para.

81, and Lithgow and others judgment of 8 July 1986, Series A no. 102,

p. 70, para. 192). The dispute which gives a right to a determination

by a court must be "genuine and of a serious nature" (see Eur. Court

H.R., Benthem judgment of 23 October 1985, Series A no. 97, p. 14,

para. 32).

In the present case the applicant claimed in the domestic

proceedings a right to the publication at the expense of the Austrian

state of the outcome of proceedings before the Convention organs in

which he was the applicant. Section 39 of the Media Act, however, only

provides for a publication of the outcome of criminal proceedings in

case the seizure of the relevant publication was not ordered and thus

refers to domestic proceedings. The Regional Court in its decision of

18 March 1993 therefore refused the applicant's request. The applicant

in his appeal of 14 April 1993 requested the Court of Appeal to

institute proceedings before the Constitutional Court as he considered

Section 39 of the Media Act to be unconstitutional as not being in

compliance with Austria's obligations under Article 53 (Art. 53) of the

Convention.

The Commission therefore finds that the applicant could not on

arguable grounds claim a right to the publication of the outcome of

proceedings before the Convention organs at the expense of the Austrian

state. The dispute thus did not concern a right within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention and the applicant

therefore cannot rely on that provision in this instance.

It follows that this part of the application must also be

rejected as incompatible ratione materiae with the provisions of the

Convention in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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OBERSCHLICK v. AUSTRIA

OBERSCHLICK v. AUSTRIA

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