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GRÜSSINGER v. Austria

Doc ref: 13399/87 • ECHR ID: 001-833

Document date: March 1, 1991

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GRÜSSINGER v. Austria

Doc ref: 13399/87 • ECHR ID: 001-833

Document date: March 1, 1991

Cited paragraphs only

Application No. 13399/87

by Paul GRÜSSINGER

against Austria

The European Commission of Human Rights sitting in private

on 1 March 1991, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

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 13 July 1987

by Paul GRÃœSSINGER against Austria and registered on 23 November 1987

under file No. 13399/87;

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 applicant is an Austrian citizen, born in 1912 and living

in Klagenfurt.

He has lodged a previous application on another subject-matter

(No. 3159/67) which was rejected in 1968.

It follows from his statements and the documents submitted

that on 18 July 1986 the applicant and his wife were convicted by the

Klagenfurt District Court (Bezirksgericht) of slander (üble Nachrede).

The applicant was ordered to pay a fine of thirty day rates in the

amount of 40 AS and his wife was ordered to pay a fine of twenty day

rates in the amount of 50 AS.

According to the findings of the Court the applicant brought

an action against the caretaker of the dwelling in which he and his

family lived. His memorial was also signed by his wife. In his

submissions to the Court the applicant alleged that the caretaker

often shouted at children, chased them away and threatened them, that

she had confiscated his son's ball when he was playing with it and

that, in her capacity as caretaker, she exercised a "regime of terror"

(Terrorregime) vis-à-vis the children of the community of flat

owners. The caretaker thereupon brought a private action

(Privatanklage) against the applicant and his wife.

The District Court took into consideration that, according to

the house rules, ball games were admitted only on the playground and

it was the caretaker's duty to see that the house rules were respected.

It further noted that, in the proceedings instituted against the

caretaker by the applicant, it had been established that the ball of

the applicant's son had been confiscated by the caretaker because the

son had been playing with it outside the area where ball games were

permitted. Furthermore the applicant had not been in a position to

prove his allegation that a majority of the eighty flat owners was in

favour of giving more liberty to children at play. In these

circumstances, so the District Court considered, the caretaker had not

only been authorised but even obliged to prevent children from playing

with balls outside the playground. As regards the term "terror

regime" the Court considered it was associated to ideas of murder,

homicide and totalitarian governments massively violating human

rights. As the defendants had not shown that their son or other

children had been ill-treated or injured by the caretaker, the use

of the term "terror regime" was considered to constitute the

expression of contempt in regard of another person's personality or

character within the meaning of Sec. 111 (1) of the Criminal Code

(StGB) which provides:

(German)

"Wer einen anderen in einer für einen Dritten wahrnehmbaren

Weise einer verächtlichen Eigenschaft oder Gesinnung zeiht

oder eines unehrenhaften Verhaltens oder eines gegen die

guten Sitten verstossenden Verhaltens beschuldigt, das

geeignet ist, ihn in der öffentlichen Meinung verächtlich zu

machen oder herabzusetzen, ist mit Freiheitsstrafe bis zu

sechs Monaten oder mit Geldstrafe bis zu 360 Tagessätzen zu

bestrafen."

(English translation):

"A person bringing another to contempt in a manner

perceivable to a third party by denouncing him as being of

mean character or dishonest or having immoral behaviour is

punishable with imprisonment up to six months or a fine up

to 360 day rates."

The appeal (Berufung) and plea of nullity (Nichtigkeits-

beschwerde) of the applicant and his wife were rejected by the

Klagenfurt Regional Court (Landesgericht) on 12 February 1987. This

Court stated, inter alia, that the conviction was compatible with the

Convention as the right to freedom of expression, as guaranteed by

Article 10, was limited in that it did not allow criminal acts.

COMPLAINTS

The applicant stated that his action against the caretaker was

still pending. He considered that his conviction features a means of

intimidation. In this context he mentioned that the fines and the

costs of the proceedings in the amount of 17,452 AS considerably

exceeded his monthly pension. He submitted that the term "terror"

referred to inconsiderate and violent action. He considered that, as

a plaintiff, the safeguarding of his interests justified the use of

the term in question.

He therefore considered that his conviction violated Article 10

as well as Article 7 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION AND FURTHER DEVELOPMENTS

On 8 March 1989 the Commission decided to communicate the

application to the respondent Government for observations on its

admissibility and merits to be submitted before 9 June 1989. On

2 June 1989 the Government requested an extension of this time-limit

until 1 September 1989 on the ground that meanwhile the Attorney

General (Generalprokurator) had lodged a plea of nullity for the

safeguarding of the law against the judgment complained of. On

31 August 1989 the respondent Government informed the Commission that

the judgment had been quashed and the case had been sent back for a

new trial. On 15 April 1990 the applicant wrote that he had been

acquitted and the question of costs had been satisfactorily settled.

He therefore wished to withdraw the application.

REASONS FOR THE DECISION

The applicant has withdrawn the application and there are no

reasons of a general character affecting respect for human rights, as

defined in the Convention, which require the further examination of

the case by virtue of Article 30 para. 1 in fine of the Convention.

For these reasons, the Commission unanimously

DECIDES TO STRIKE THE CASE OFF THE LIST OF CASES.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

LEXI

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