THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62763/00 by VERLAGSGRUPPE NEWS GMBH against Austria

The European Court of Human Rights (Third Section) , sitting on 16 January 2003 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , Mr K. Traja , Mrs E. Steiner, judges , and Mr V. Berger, Section Registrar ,

Having regard to the above application lodged on 4 July 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant is the Verlagsgruppe News Gesellschaft mbH, a limited liability company with its seat in Tulln (Austria). It is represented before the Court by  Mr G. Zanger, a lawyer practising in Vienna.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

The applicant is the owner and publisher of the weekly magazine “News”.

In its issue no 45/99 the magazine published articles reporting on a planned demonstration against racism and the FPÖ’s policy, and articles about Mr Haider, the Carinthia Regional Governor and, at that time, Chairman of the Austrian Liberal Party ( FPÖ ), commenting, inter alia , on his role in the ongoing process of the creation of the new Federal Government ( Bundesregierung ) after the election of the National Assembly ( Nationalrat ) in October 1999. On the front page it placed a photomontage picturing Mr Haider symbolising the devil: horns attached to a bald head on a blazing red background. This picture was accompanied by the following text sequences:

“Arch-enemy Haider, how he plans to come into power” and

“The Demonstration: Who opposes him” and

“How he further tries to set fire”

On 12 November 1999 Mr Haider brought compensation proceedings against the applicant company claiming compensation under section 6 of the Media Act ( Mediengesetz ) for defamation. He argued that the photomontage, picturing him as devil, constituted offences under the Criminal Code. Further he requested supplementary measures under the Media Act, such as the publication of a notice that proceedings under that Act had been opened and the publication of the judgment.

On 19 November 1999 the St. Pölten Regional Court ( Landesgericht ), without having held a hearing, ordered the applicant company to publish the following notice:

“Notice pursuant to sections 8a (5) and 37 (1) Media Act:

In its issue 45 from 11 November 1999 the periodical ‘News’ published on the front page a portrayal of the claimant as devil. Alongside the following headlines were published: ‘Arch-enemy Haider, how he plans to come into power’; ‘The Demonstration: Who opposes him.’; and ‘How he further tries to set fire.’

The claimant Dr. Jörg Haider filed an application under the Media Act because of this front page against the defendant, the Verlagsgruppe News GmbH.

The proceedings are pending.”

On 7 December 1999 the applicant company filed an appeal. It stressed that the photomontage on the front page had to be considered in connection with the articles in the magazine, in which it had reported on a planned demonstration and its supporters against the FPÖ’s and Mr Haider’s policy,  against racism in general and against Mr Haider’s political position. Further it submitted that the photomontage was easily recognisable as a caricature and that the fundamental message of the publication had been that Mr Haider was the “political arch-enemy” for many Austrian people. The impugned publication had therefore been a value judgment. Finally, the applicant company referred to the Court’s Oberschlick v. Austria judgment (no.1) of 23 May 1991 (Series A no. 204, p. 26, § 59), in which the Court found that the limits of acceptable criticism are wider with regard to a politician acting in his public capacity than in relation to a private individual.

On 22 December 1999 the Vienna Court of Appeal dismissed the applicant company’s appeal.

On 11 July 2000 the St. Pölten Regional Court, after having held a hearing, sentenced the applicant company to a fine of ATS 100,000 and ordered it to publish this judgment in its magazine. It found that the average reader had related the photomontage to the negative characteristics of the devil. The incriminated publication had constituted a debasing denunciation as Mr Haider had been equated with the evil. However, no factual basis could have been deduced from the accompanying headlines.

On 18 December 2000 the Vienna Court of Appeal ( Oberlandesgericht ), after having held a hearing, partly allowed the applicant’s appeal on points of law and fact ( Berufung wegen Nichtigkeit und Schuld ) and the appeal against sentence ( Berufung wegen Strafe ) and reduced the fine to ATS 80,000. It found that the incriminated publication did not constitute an equalisation with the character of the devil. However, it was placed as eye-catcher on the front page and constituted a striking exposure of Mr Haider, in which he was described as debased and publicly ridiculed. Further it found that the photomontage could not be regarded as a caricature. Although the limits of acceptable criticism were wider with regard to a politician acting in his public capacity than in relation to a private individual, defamation was prohibited. Balancing Mr Haider’s personal interest against the rights of the applicant company under Article 10 of the Convention, it found that a politician too was entitled to have his reputation protected, particularly if the debasing picture, taking into account its luridness, had served primarily the company’s business interests (the issue 45/99 of the magazine “News” reached the highest sales volume ever). In this case it found that the personal interest in protecting a person’s reputation outweighed the right secured by Article 10 of the Convention as the emphasis of the publication was put on the personal insulting statement. Therefore, the court concluded that the objective elements of the offence of defamation within the meaning of Section 115 of the Criminal Code had been met. Referring to the Oberschlick v. Austria (no. 1) judgment of 23 May 1991 (Series A no. 204), it found that the photomontage on the front page had to be considered separately from the reports in the magazine as, in any case, its impact had overlaid all potential factual references. The accompanying headlines had not provided a factual basis for the incriminated photomontage and freedom of expression could not justify the personal insulting statement committed by the publication.

B. Relevant domestic law and practice

According to the Media Act, compensation claims may be made either  in criminal proceedings against the publisher or, failing such criminal proceedings, in separate proceedings.

If a publication in the media, viewed objectively, constitutes, inter alia , an insult under Section 115 of the Criminal Code, the insulted person may claim compensation for non-pecuniary damages from the media owner, pursuant to section 6 § 1 of the Media Act.

Section 115 of the Criminal Code, in so far as relevant, reads as follows:

“1. Anyone who, in public or in the presence of several others, insults, mocks, mistreats or threatens to mistreat a third person, shall be liable to imprisonment not exceeding three months or a fine ... unless he is liable to a more severe penalty under another provision. ... ”

Upon request of the insulted person under section 8a § 5 of the Media Act, the competent court has to order the publication of a notice to the effect, that compensation proceedings under the Media Act are pending, if it is to be presumed that the requirements for compensation will be met. If the defendant does not comply with the order to publish the notice, the plaintiff may request the court to impose a fine which cannot exceed ATS 10,000 per published edition of the defendant’s magazine (section 20 § 1 of the Media Act).

In the case of an insulting statement, the amount of damages payable cannot exceed ATS 200,000 (section 6 § 1 of the Media Act). When fixing the amount to be awarded, the competent court has to give particular consideration to the effect of the insulting publication and the economic situation of the media company.

COMPLAINTS

The applicant company complains under Article 6 § 1 of the Convention that the courts did not hold a hearing when deciding on the request to publish a notice that proceedings under the Media Act are pending.

Under Article 6 § 2 of the Convention it complains that this decision violated the presumption of innocence as the notice could have given the impression to the public that the applicant company had indeed committed an offence under the Criminal Code.

Under Article 10 of the Convention the applicant company complains that the Austrian courts’ decisions violated its right to freedom of expression.

THE LAW

1. The applicant company complains about a violation of Article 10 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant company also raises a complaint under Article 6 § 1 of the Convention which, so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...

The Court observes that the complaints under Article 6 of the Convention do not relate to the main proceedings, namely, the compensation proceedings, but to the decision by which it was ordered to publish a notice that proceedings under the Media Act are pending, which was taken without a hearing. The Court will therefore examine whether Article 6 of the Convention applies to this decision.

The Court has previously held that interlocutory proceedings relating to an interim injunction, in which no decision on the merits of the case is made, do not involve a determination of civil rights and obligations (see X v. the United Kingdom no. 7990/77, Commission decision of 11 May 1981, Decisions and Reports 24, p. 57; Österreichische Schutzgemeinschaft für Nichtraucher and Rockenbauer v. Austria , no.17200/91, Commission decision of 2 December 1991, unreported; Apis a.s. v. Slovakia (dec.), no. 39754/98, 13 January 2000, unreported). The Court considers that the decision at issue may be considered an interim decision as it concerned exclusively the publication of a notice that proceedings under the Media Act were pending and did not involve a decision on the merits. The Court, therefore, finds that this decision did not involve a determination of the applicant’s civil rights and obligations.

Further, as regards the criminal head of Article 6 of the Convention, having regard to the three alternative criteria laid down in its case-law, namely, the characterisation of the offence in domestic law, the nature of the offence and the nature and severity of the penalty ( Putz v. Austria, judgment of 22 February 1996, Reports of judgments and decisions 1996-I, p. 324, § 31, with further references), the Court notes that the contested proceedings were not of a criminal nature. Indeed, although the court’s decision may be enforced by imposing a fine, the nature of the proceedings and the severity of the fine the applicant risked incurring was not such as to bring the case into the sphere of criminal law.

Article 6 of the Convention is consequently not applicable to the proceedings leading to the decision ordering the applicant company to publish the notice at issue.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3, and must therefore be rejected in accordance with Article 35 § 4.

3. The applicant company further complains under Article 6 § 2 of the Convention that the decision to publish the notice that proceedings under the Media Act are pending violated the presumption of innocence as that notice could have given the impression to the public that the company had committed an offence under the Criminal Code. Article 6 § 2 reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

It is true that the presumption of innocence is to be observed not only by criminal courts trying cases, but also by other authorities, including courts other than those which are competent to determine a criminal charge (see Sekanina v. Austria , Commission’s Report of 20 May 1992, Decisions and Reports, Series A no. 266, p. 20, § 36; Hammerstein v. the Netherlands , no 34973/97, Commission decision of 1 July 1998, unpublished). The Court, however, finds the complaint under Article 6 § 2 to be unjustified as the notice at issue in no way implied a finding of guilt Article 6 § 2. There is no indication that a notice limited to announcing that proceedings are pending could have given the impression to the public that the applicant company had committed offences under the Criminal Code.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the alleged violation of its rights to freedom of expression;

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President

The photomontage at issue