Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12096/86

by Erich REBASSO

against Austria

The European Commission of Human Rights sitting in private

on 5 October 1987 the following members being present:

MM. C.A. NØRGAARD, President

M.A. TRIANTAFYLLIDES

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 4 March 1986

by Erich REBASSO against Austria and registered

on 7 April 1986 under file N° 12096/86;

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, an Austrian citizen born in 1940, is an

employee resident in Vienna. Before the Commission he is represented

by Dr. Unterasinger, a lawyer practising in Graz.

I.

The facts of the present application correspond partly to the

facts submitted by the applicant in Application No. 12007/86 which was

declared inadmissible by the Commission on 5 October 1987.

In particular, the applicant demanded damages before the

Vienna Regional Court (Landesgericht) from a newspaper publisher for

two newspaper articles which had been published in the newspaper "Neue

Kronenzeitung - Kärtner Echo". On 21 March 1985 the Regional Court

held that the two newspaper articles amounted to slander (üble Nachrede)

within the meaning of S.111 of the Austrian Criminal Code

(Strafgesetzbuch) and it awarded the appplicant 35'000.-AS for each.

Upon appeal the Vienna Court of Appeal (Oberlandesgericht) on 19

August 1985 reduced the amounts to the sums of 8'000.- and 5'000.-,

respectively.

II.

The present application concerns facts subsequent to the Court

of Appeal's decision of 19 August 1985.

On 24 August 1985 the "Neue Kronenzeitung - Kärtner Echo"

published the operative part of the decision of the Regional Court of

21 March 1985.

The article had as a first headline the words: "In the name of

the Republic" ("Im Namen der Republik"). There followed in small

print the first sentences of the decision of the Regional Court of 21

March 1985 according to which the two previous newspaper articles

amounted to slander within the meaning of S.111 of the Austrian

Criminal Code. In big letters the article then printed the headlines

of the articles which constituted slander, namely "Good advice was

expensive: Pensioner lost property" ("Guter Rat war teuer: Rentner

verlor Besitz") and "Judge waited: But (the applicant) 'won't come'"

("Richter wartete: Doch [der Beschwerdeführer] 'kummt net'"), as well

as the contested passages thereof. Finally the article also

reproduced from the decision of the Regional Court of 21 March 1985

the damages awarded to the applicant, though here the article

substituted the amounts fixed by the Court of Appeal on 19 August 1985

for those fixed by the Regional Court.

In a separate comment on the same page the newspaper stated

that upon appeal the Court of Appeal had reduced the damages from

twice 35'000.-AS to 8'000.- and 5'000.-AS, respectively, and that at

the public pronouncement of the judgment the presiding judge of the

Court of Appeal had mentioned as a ground for the loss of the

applicant's esteem his "extremely unsound conduct" ("äusserst

unseriöses Verhalten").

III.

The applicant thereupon demanded damages from the newspaper

publisher. He relied on S.6 of the Media Act (Mediengesetz) according

to which such damages must be paid if the criminal offence of slander

has been committed. The applicant submitted in particular that on

24 August 1985 the article in the "Neue Kronenzeitung" had mixed the

decisions of the first and second instance courts, that the parts

which concerned the applicant had been printed in heavier type, and

that he had neither applied for, nor approved, publication of the

previous judgments.

On 18 December 1985 the Review Chamber (Ratskammer) of the

Vienna Regional Court terminated the proceedings (Einstellung),

in non-public proceedings, on the ground that the facts at

issue did not constitute a criminal offence. The Review Chamber

found that the newspaper publisher was free to publish at his own

expense the respective decision since the proceedings could also be

reported by publishing the judgment. It did not amount to slander

within the meaning of S.111 of the Criminal Code, if decisions of

two courts had been mixed or if certain parts of the article had been

printed in heavy type, since the reader would read the whole article.

Finally, the Review Chamber found that the newspaper's further comment

corresponded to the decision of the Court of Appeal of 19 August

1985 in which it had referred to the applicant's "unsound conduct".

Against the decision of the Review Chamber of 18 December 1985

the applicant filed an appeal (Beschwerde) with the Vienna Court of

Appeal, in which he alleged that the newspaper articles of 24 August

1985 amounted to slander.

On 29 January 1986 the Court of Appeal dismissed, in

non-public proceedings, the applicant's appeal. The Court found

that the article was clear for the average reader who would be in a

position correctly to inform himself also of its procedural content.

IV.

S.8 para. 3 of the Media Act provides that, if an applicant

demands damages according to S.6 on the ground of slander, he will

have the rights of a private prosecutor (Privatankläger) and the

provisions concerning private prosecutors in criminal proceedings will

apply accordingly.

The Code of Criminal Procedure (Strafprozessordnung) states in

S.483 that such proceedings are instituted in writing. According to

S.486 para. 3 in combination with S.485 para. 1(4), the Review Chamber

will terminate the proceedings in particular if the act at issue does

not constitute a criminal offence falling within the jurisdiction of

the courts. S.486 para. 4 stipulates in this case for the prosecutor

the possibility of an appeal to the court of second instance. If

there are no objections to the application of the prosecutor, S.487

requires the order of the trial (Hauptverhandlung). According to S.228

the trial is held in public. As regards the publicity of the Review

Chamber proceedings before the trial, S.113 states:

"(1) Whosoever claims during the preliminary enquiries, the

preliminary investigations or in the proceedings following the

indictment, to be a victim by means of an order or a delay of

the investigating judge, has the right in this respect to

request the decision of the Review Chamber and to make the

request either orally or in writing before the investigating

judge or directly before the Review Chamber...

(2) The Review Chamber decides in a non-public session after

hearing the investigating judge and the Public Prosecutor."

"(1) Alle, die sich während der Vorerhebungen, der Vorunter-

suchung oder in dem der Einbringung der Anklageschrift nachfol-

genden Verfahren durch eine Verfügung oder Verzögerung des Unter-

suchungsrichters beschwert erachten, haben das Recht, darüber eine

Entscheidung der Ratskammer zu verlangen und ihr Begehren entweder

schriftlich oder mündlich beim Untersuchungsrichter oder unmittel-

bar bei der Ratskammer anzubringen...

(2) Die Ratskammer entscheidet in nichtöffentlicher Sitzung

nach Anhörung des Untersuchungsrichters und des Staatsanwaltes."

If the Review Chamber in its decision decided to terminate the

preliminary investigations, S.114 para.2 of the Code of Criminal

Procedure provides as a further remedy an appeal (Beschwerde) to the

court of second instance. According to S.114 para. 2 the court in

second instance will thereby decide in a non-public session.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

neither the Review Chamber nor the Court of Appeal conducted the

proceedings publicly.

Under Article 6 the applicant further complains that the

Review Chamber and the Court of Appeal both assumed that a court

decision had been properly published whereas in fact it had not. In

the applicant's submissions, Article 6 contains the right that court

proceedings are properly treated by the media.

THE LAW

1. The applicant has complained that neither the Review Chamber

nor the Court of Appeal conducted the court proceedings publicly.

Article 6 para. 1 (Art. 6-1) of the Convention states, insofar as it is

relevant to the present application:

"In the determination of his civil rights and obligations

or of 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."

However, the Commission recalls that Austria ratified the

Convention subject to the reservation that "the provision of Article 6 (Art. 6)

of the Convention shall be so applied that there shall be no prejudice to the

principles governing public court hearings laid down in Article 90 of the 1929

version of the Federal Constitutional Law". Article 90 states:

"Hearings in civil and criminal cases by the trial court shall

be oral and public. Exceptions may be prescribed by law."

The Commission notes that, if an applicant demands damages

according to S.6 of the Media Act on the ground of slander, the

provisions concerning private prosecutors in criminal proceedings

apply accordingly. In the present case the first instance

proceedings at issue were terminated by the Review Chamber during the

phase of the preliminary investigations, i.e. before the trial was

ordered. In this respect the Commission notes the formulation of

S.228 of the Code of Criminal Procedure according to which the trial

shall be held in public, thus in principle not ensuring publicity in

other proceedings (see e.g. No. 460/59, Dec. 7.7.59, Collection 1).

Moreover, S.113 para. 2 confirms the generally non-public nature of

proceedings before the Review Chamber if the latter is handing down a

decision during the preliminary investigations concerning inter alia

the order of the investigating judge. Finally, S.114 para. 2 states

that the court in second instance will decide in a non-public session on

complaints against decisions of the Review Chamber to terminate such

proceedings.

In the Commission's view these provisions indicate sufficiently

the non-public nature of the proceedings concerning the applicant

before the Review Chamber and, on appeal, before the Court of Appeal.

Consequently, the Austrian reservation concerning Article 6 (Art. 6) is

applicable in respect of the applicant's complaint at issue. It follows that

this part of the application is incompatible ratione personae with the

Convention's provisions and must be rejected in accordance with Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant further complains under Article 6 (Art. 6) of the

Convention that the Review Chamber and the Court of Appeal both

assumed that a court decision had been properly published whereas in

fact it had not. In the applicant's submissions Article 6 (Art. 6) contains

the right that court proceedings are properly treated by the media.

The Commission notes that before the Austrian courts the

applicant demanded damages from a newspaper which the courts

granted after considering that the newspaper articles concerned

amounted to slander. The Commission considers that the right to enjoy a good

reputation constitutes a "civil right" within the meaning of Article 6 para. 1

(Art. 6-1) and that the guarantees of that provision are therefore applicable

to the proceedings before the Review Chamber and the Court of Appeal in the

present case (see e.g. No. 8366/78, Dec. 8.3.79, DR 16 p.196). On the other

hand, Article 6 para. 1 (Art. 6-1) does not concern the manner in which

judidial decisions are handled by newspapers and other media.

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 constant

case-law (see e.g. No. 485/59, 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).

The Commission has nevertheless examined the applicant's

complaints under Article 6 para. 1 (Art. 6-1) of the Convention. However, it

finds no indication that the applicant could not present his case

properly or that the proceedings were otherwise unfairly conducted.

As a result the Commission finds that the complaints at issue do not

disclose any appearance of a violation of the rights set out in Article 6 para.

1 (Art. 6-1) of the Convention. The application is therefore in this respect

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 President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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REBASSO v. AUSTRIA

REBASSO v. AUSTRIA

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