Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21113/93

by J. W.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 12 October 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 19 August 1992 by

J. W. against Austria and registered on 4 January 1993 under file

No. 21113/93;

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, as they have been submitted by the applicant, may be

summarised as follows.

The applicant, an Austrian citizen living in Lienz (Austria) and

born in 1928, is owner of a hotel in Lienz. Before the Commission he

is represented by Mr. J. Hippacher, a lawyer practising in Lienz.

A. Particular circumstances of the case

On 11 May 1990 the applicant wrote a letter to the Tirol Regional

Police Authority (Landesgendarmeriekommando) complaining inter alia

about Mr. T., a police officer and member of the Oberlienz City Council

(Gemeinderat). This letter contained in particular the following

passage:

"Es ist aber sicher ebenfalls einmalig, daß ein aktiver

Gendarmeriebeamter hergeht und unterstützt eine Grundräuberei,

wo er doch wissen muß, daß die Unverletzlichkeit des Eigentums

schon im Staatsgrundgesetz verankert ist. Ein Beamter, der

Eigentum zu schützen hat, geht als pol. Mandatar her und tut das

Gegenteil.

Er wäre sogar vepflichtet gewesen, nach § 84 der Straf-

prozeßordnung vorzugehen und nicht bei dieser Lumperei noch

mitzumachen."

It is surely a unique situation that a police officer who

is on active service supports a robbery of land although he

should know that the the inviolability of the right to property

is laid down in the Constitution. A civil servant who should

protect the right to property acts, in his capacity as a

politician, to the contrary.

He was even obliged to act in accordance with S. 84 of the

Code of Criminal Procedure and should not have taken part in this

dirty trick".

On 30 January 1992 the Kitzbühel District Court, upon Mr. T.'s

request for prosecution (Privatanklage), convicted the applicant of

defamation (Ãœble Nachrede) under Section 111 of the Criminal Code

(Strafgesetzbuch) and fined him AS 900.

The Court had regard to the letter written by the applicant on

11 May 1990 and in particular the passages quoted above. It considered

that the applicant, as he chose to write this letter to the Regional

Police Authority, had intended to make Mr. T. contemptible or lower him

otherwise in public esteem.

The Court further considered that the proof of this allegation

according to paragraph 3 of Section 111 of the Criminal Code had not

been established. In this respect, the Court pointed out that the City

Council's decision granting a third person the building permit for a

path which would partly lead over the applicant's land, did not deprive

the applicant illegally of his property, as the purchase of the

property concerned still had to be negotiated or separate expropriation

proceedings had to be instituted. Moreover, the applicant could have

filed a complaint with the Regional Authorities, had he only intended

to point at the alleged unlawfulness of the City Council's decision.

The Court, therefore, dismissed the applicant's requests to examine the

City Council's files and documents relating to the building consent

proceedings as evidence and to hear witnesses in this respect, as these

were no means to prove an unlawful deprivation of his property.

In these and the following proceedings the applicant was assisted

by counsel.

On 10 April 1992 and on 5 May 1992 the Kitzbühel District Court

dismissed the applicant's requests for the rectification of the trial

record as irrelevant.

On 19 June 1992 the Innsbruck Regional Court (Landesgericht)

dismissed the applicant's plea of nullity (Nichtigkeitsbeschwerde) and

his appeal against conviction (Berufung), and rejected the appeal

(Beschwerde) against the District Court's decisions of 10 April 1992

and 5 May 1992.

The Court considered that the applicant had not provided

sufficient evidence to justify his statements, as he had not shown that

Mr. T., when voting in favour of the allegedly unlawful building

permit, had acted against his better judgment. Moreover, the Regional

Police Authority, to which the letter was sent, would only have been

competent to deal with complaints regarding Mr. T.'s conduct as a

police officer, not, however, relating to his behaviour as an elected

member of the City Council. Furthermore, the Regional Court, having

regard to the case-law according to which a politician had to accept

even harsh criticism, found that a municipal councillor could not be

reproached with the robbery of land and dirty tricks for having

participated in allegedly incorrect votes in the municipal council.

The Court also considered that the District Court was justified in

refusing the applicant's request for the taking of further evidence,

as they could not have led to a different result. As regards the

decisions of 10 April and 5 May 1992, the Regional Court noted that

there was no right to appeal against decisions dismissing requests for

the rectification of a trial record.

B. Relevant domestic law

Section 111 of the Austrian Criminal Code provides as follows:

"1. Anyone who in such a way that it may be perceived by a

third person accuses another of possessing a contemptible

character or attitude or of behaviour contrary to honour or

morality and of such a nature as to make him contemptible

or otherwise lower him in public esteem shall be liable to

imprisonment not exceeding six months or a fine...

...

3. The person making the statement shall not be punished if it

is proved to be true. As regards the offence defined in

paragraph 1, he shall also not be liable if circumstances are

established which gave him sufficient reason to assume that the

statement was true."

COMPLAINTS

1. The applicant complains under Article 10 of the Convention that

his conviction for defamation violated his right to freedom of

expression.

2. Under Article 6 of the Convention the applicant considers that

the dismissal of his requests for the taking of evidence and the

refusal to rectify the trial record deprived him of a fair trial.

3. He also complains under Article 7 of the Convention about his

conviction, and the application of Austrian law regarding the local

building regulations.

THE LAW

1. The applicant complains under Article 10 (Art. 10) of the

Convention that his conviction for defamation violated his right to

freedom of expression.

Article 10 (Art. 10), as far as relevant, provides as follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority ...

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society ... for the protection

of the reputation or rights of others ..."

The Commission finds that the applicant's conviction of

defamation by the Kitzbühel District Court, as confirmed upon appeal,

constituted an interference with the exercise of his freedom of

expression. Such interference is in breach of Article 10 (Art. 10),

unless it is prescribed by law and necessary in a democratic society

for one of the aims mentioned in paragraph 2 of this provision.

The Commission considers that applicant's conviction was based

on S. 111 of the Austrian Criminal Code, and thus prescribed by

Austrian law. Moreover, the interference aimed at protecting "the

reputation or rights of others", namely of Mr. T., the police officer

and member of the Oberlienz City Council criticised by the applicant.

This is a legitimate aim under Article 10 para. 2 (Art. 10-2).

It remains to be determined whether the interference was

"necessary in a democratic society". The Commission recalls that the

Contracting States have a certain margin of appreciation in assessing

whether such a need exists, but it goes hand in hand with a European

supervision (Eur. Court H.R., Observer and Guardian judgment of

26 November 1991, Series A No. 216, pp. 29-30, para. 59).

The Commission notes that the applicant was convicted of

defamation because he had, in a letter sent to the Regional Police

Authority, Mr. T.'s superior authority, alleged that Mr. T. contributed

to the "robbery of his land" and took part in a "dirty trick". The

Austrian Courts, when convicting the applicant of defamation, found

that he had intended to make Mr. T. contemptible and to lower him in

public esteem. If he had intended to merely criticise the decision of

the Oberlienz City Council, he could have challenged its lawfulness by

lodging a complaint with the Regional Authorities.

In these circumstances, the Commission finds that, weighing the

applicant's interest in criticising Mr. T's vote and behaviour within

the City Council and Mr. T.'s right to have his reputation protected

against being disparaged in a letter to his superior authority, the

interference complained of can be reasonably regarded as "necessary in

a democratic society" within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention. Accordingly, there is no appearance of

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

This part of the application is therefore manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. Under Article 6 (Art. 6) of the Convention the applicant

considers that the dismissal of his requests for the taking of evidence

and the refusal to rectify the trial record deprived him of a fair

trial.

The Commission recalls that Article 6 (Art. 6) of the Convention

does not give an absolute right to the examination of every witness or

evidence proposed by the defence (Eur. Court H.R., Engel and others

judgment of 6 June 1976, Series A no. 22, p. 38, para. 91; Bricmont

judgment of 7 July 1989, Series A no. 158, p. 31, para. 89). In

particular a court is justified in refusing to summon witnesses when

it considers that their statements could not be of any relevance to the

case (Appl. No. 10486/83, Dec. 9.10.86, D.R. 49, p. 86).

In the present case, the Kitzbühel District Court dismissed the

applicant's requests to take further evidence, namely in particular to

examine witnesses regarding the deliberations in the Oberlienz City

Council as being irrelevant. Upon appeal, the Innsbruck Regional Court

confirmed that these requests could not clarify the issue of the

applicant's guilt.

In these circumstances, the Commission finds no indication that

the Austrian courts failed to consider relevant evidence. Moreover,

there is nothing to show that the applicant, assisted by defence

counsel, could not properly present his case, or that the proceedings

were otherwise conducted in an unfair or arbitrary manner.

Accordingly, the applicant's submissions do not disclose any

appearance of a violation of Article 6 (Art. 6), or of any other

provision of the Convention.

It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2).

3. The applicant further complains under Article 7 (Art. 7) of the

Convention about his conviction, and, in this context, about the

application of Austrian law regarding the local building regulations.

When examining the applicant's complaint under Article 10 (Art. 10) of

the Convention, the Commission has already found that his conviction

of defamation was based on S. 111 of the Austrian Penal Code. There

is no appearance of a violation of his right under Article 7 (Art. 7)

of the Convention. Consequently, this part of the application is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2).

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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J.W. v. AUSTRIA

J.W. v. AUSTRIA

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