Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13717/88

by H.O.

against Austria

The European Commission of Human Rights sitting in private

on 2 May 1989, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 29 December 1987

by H.O. against Austria and registered on 17 March 1988

under file No. 13717/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1925 and living

in Strass. He is represented by Mr. S. Gloss, lawyer in St. Pölten.

It follows from his statements and the documents submitted by

him that on 27 June 1986 the applicant was convicted by the Langenlois

District Court (Bezirksgericht) of slander (üble Nachrede) for having

addressed two letters to federal and regional offices (Gremien) of the

professional organisation of Austrian wine and liquor wholesale

traders and other persons related to the wine business containing

deliberate untrue accusations against the plaintiff (Privatankläger),

Mr. U.

According to the findings of the District Court an Austrian

newspaper, the "Neue Kronenzeitung", had published an article on

26 February 1983 under the heading "Wines, adulterers and proceedings"

(Weine, Fälscher und Verfahren) about irregularities in the Austrian

wine economy. On account of this article Mr. U brought a private

criminal action against the author of the article. In connection with

these proceedings the Neue Kronenzeitung published a communiqué in

accordance with Section 37 (1) of the Press Act (Mediengesetz) stating

that Mr. U had lodged a private criminal action against W, editor,

who had published the afore-mentioned article. The relevant part of

the article was then repeated, namely that a wine dealer of St.

Margareten used to submit to his German wholesale clients two bills

with different prices. The higher priced bill was paid by the retail

customer while the lower priced bill was used for tax declaration

purposes.

The applicant, who is himself a wine producer, read the article

and sent a copy of it to the federal office (Bundesgremium) of his

professional organisation. He stated that according to trustworthy

information the newspaper article referred to Mr. U who allegedly was

in serious difficulties for having for years practised a system of

double invoicing. This constituted, so the applicant argued, unfair

competition (grobe Benachteiligung von Kollegenbetrieben). He

therefore requested the exclusion of Mr. U from the organisation's

activities as he probably had for years violated the law and the

interests of the profession (da Herr U mit grosser Wahrscheinlichkeit

jahrelang grob gegen unsere Berufsinteressen und das Handelskammer-

gesetz zum Schaden unserer Kollegenschaft verstossen hat).This letter

was transmitted to U who informed the applicant on 19 May 1983 that he

had in fact been accused of double invoicing but it followed from a

report of the competent tax authorities of 21 April 1983 that this

accusation was unfounded. U added that the investigations of the tax

authorities had been carried out by K and that he, U, was prepared to

dispense K from his obligation to keep the matter secret. Furthermore

U's lawyer also wrote to the applicant informing him about the private

criminal action against the editor of the newspaper article and about

the result of an audit carried out in U's enterprise. He stated that

the audit report attested his client's business practices to be

correct. Therefore, so he warned the applicant, he should refrain from

making further incriminating statements as he was now informed about

the true facts.

On 13 February 1985 the editor W asked the applicant whether

it was a common practice in the wine export business to grant

discounts and to what amount. He sent the applicant copies of letters

and order confirmations. One letter sent by the firm R to U, dated

10 December 1976, referred to an order confirmation No. 263/76 and

stressed that the vendor would have to repay 0.50 DM per litre to the

firm 0 once the order had been carried out. The order confirmation

No. 263/76 addressed by R to the client A.O named the vendor U, the

amount of wine ordered and the price per litre (3 DM), as well as a

commission of 5%. In a letter of 13 December 1976 addressed by R to U

it was again stressed that after delivery and payment 1.25 DM would

have to be refunded to R. A further copy annexed to W's request was

an order confirmation No. 272/76 of 13 December 1976 by R addressed to

A.O relating to the order by A.O of 3,000 hectolitres of Austrian wine

for the price of 1.25 DM per litre and a commission of 2% from 0.95 DM

per litre.

On 15 February 1985 the applicant sent a circular letter to

the offices (Gremien) of his professional organisation. Joining

copies of the documents sent to him by W he stated in that letter that

these copies clearly indicated dubious business practices such as tax

evasion, violation of foreign exchange regulations or even fraud

committed by U who should be ousted from his functions in the

professional association at least until the scandalous events were

fully cleared up.

On 25 February 1985 U refuted these accusations by way of a

circular letter sent to the offices concerned.

The applicant sent his reply on 5 March 1985 to the various

authorities concerned stating inter alia:

"A man managing his business in such an unlawful,

unscrupulous and reckless manner has certainly nothing

to do in our profession's organisation" (Ein Mann, der so

verantwortungs- und rücksichtslos seine Geschäfte führt,

hat in der Berufsvertretung sicher nichts verloren).

According to the further findings of the District Court the

applicant was himself a business partner of the firm A.O. However,

the applicant did not contact A.O in order to obtain concrete

information about possible unfair business practices committed by U.

The tax audit report on U's enterprise for the period 1977-79

revealed no irregularities. Investigations by the Public Prosecutor in

Eisenstadt relating to U's wine business were pending.

In the years 1976/77 the average export price for wine of the

quality in question was 5 DM per litre and U's sales corresponded to

this price. U had agreed to the creation of a fund for advertisement

in Germany. This fund was to be financed by an increase of the

habitual retail-price per litre which the seller then refunded to the

wholesaler by way of a commission.

All details of this arrangement were, according to the

District Court, properly recorded in U's accounts.

In view of these findings the District Court concluded that

the applicant's accusations were based on untrue allegations and that

the applicant was aware of this as none of the documents sent to him

by W confirmed what he said in his letters incriminating U. He

therefore violated Sec. 111 (1) of the Criminal Code (StGB) for having,

on the basis of untrue factual allegations, wrongly accused and denigrated

another person for having acted in a dishonest or unfair manner.

The applicant was sentenced to a fine of 30 day rates in the

amount of 1000 AS each corresponding to 15 days' imprisonment in case

of non-payment.

The applicant lodged an appeal (Berufung). He argued that his

letters about U did not contain any untrue factual allegations as he

had only pointed out in them that it followed from the documents

submitted to him by W that U had accepted to repay a certain

percentage of the price obtained by selling his wines. This business

practice was not contested by U and therefore he, the applicant, was

not punishable for the only reason that as an official of the

professional organisation he communicated to the instances concerned

his own opinion on this practice.

On 28 April 1987 the Regional Court (Kreisgericht) in Krems

dismissed the appeal concerning the conviction. It granted however

the appeal against sentence stating that it was not necessary to

impose a further fine (Zusatzstrafe) as the applicant had already been

fined 200 day rates of 800 AS each on 7 April 1986. The judgment

imposing this fine had become final and the appellate court considered

that had the two matters been decided jointly no higher fine would

have been fixed.

The appellate court pointed out in its decision that both U and

U's counsel had informed the applicant that the tax authorities had

examined U's business activities and found no reason for objections.

In these circumstances the applicant disposed of no evidence allowing

the conclusion that U had committed tax evasion, fraud or any

violation of currency exchange regulations. A possible violation of

the law committed by the firm A.O did not justify the accusations made

against U.

The written judgment was served on the applicant on 1 July 1987.

COMPLAINTS

The applicant complains that he was wrongly convicted and

sentenced.

He alleges that his conviction is based on the statements made

by the plaintiff U. He further alleges that at the hearing of his

appeal he requested the Court to examine the file 3 St 223/85 of the

Public Prosecutor's office in Eisenstadt. It relates allegedly to

investigations against U on the basis of suspicion of fraud and

violations of the Food Act (Lebensmittelgesetz). The request was not

granted allegedly on the ground that according to U's submission the

investigation proceedings referred to were not at all related to the

case at issue. The applicant argues that he was thus deprived of the

possibility to prove that his allegations about U's illegal business

activities were correct. He invokes Article 6 paras. 1 and 3 (d) of

the Convention.

THE LAW

The applicant has complained of his conviction on 27 June 1986

by the Langenlois District Court and also of the court proceedings

concerned.

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19 (Art. 19)

of the Convention, its only task is to ensure the observance of the obligations

undertaken by the Parties in the Convention. In particular, it is not

competent to deal with an application alleging that errors of law or fact have

been committed by domestic courts, except where it considers that such errors

might have involved a possible violation of any of the rights and freedoms set

out in the Convention. The Commission refers, on this point, to its

established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222,

236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 pp. 31, 45).

It is true that in this case the applicant also complains that certain

files of the Public Prosecutor in Eisenstadt concerning investigations against

U, plaintiff in the criminal proceedings against the applicant, were not

examined. Allegedly the applicant's defence counsel had, at the hearing of the

applicant's appeal, requested the Court to have the file submitted by the

Eisenstadt prosecution as evidence in the applicant's case. In this connection

the applicant now alleges a violation of Article 6 paras. 1 and (3) (d)

(Art. 6-1, 6-3-d) of the Convention.

However, even assuming that the request to examine

the file relating to criminal investigations against U was not

belated, the applicant has not shown that the investigation

proceedings in question relate to the business transactions which he

referred to in the letters leading to his conviction of slander. In

any event, only a final conviction of U in those proceedings might

possibly have justified the accusations levied by the applicant

against his competitor U within their professional organisation. It

can, in these circumstances, not be found that the files in question

were relevant for the determination of the charges brought in the

criminal proceedings against the applicant.

It follows that the application is manifestly ill-founded

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

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H.O. v. AUSTRIA

H.O. v. AUSTRIA

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