FIRST SECTION

DECISION

Application no . 58842/09 ATV PRIVATFERNSEH-GMBH against Austria

The European Court of Human Rights (First Section), sitting on 6 October 2015 as a Chamber composed of:

András Sajó, President, Khanlar Hajiyev, Paulo Pinto de Albuquerque, Linos-Alexandre Sicilianos, Erik Møse, Dmitry Dedov, judges, Barbara Leitl-Staudinger, ad hoc judge, and Søren Nielsen, Section Registrar ,

Having regard to the above application lodged on 4 November 2009,

Having regard to the observations submitted by the respondent Government and the observations submitted by the applicant company in reply;

Having deliberated, decides as follows:

THE FACTS

1. The applicant, ATV Privatfernseh-GmbH, is a broadcasting company established under Austrian Law with its seat in Vienna. It is represented before the Court by Mr G. Lansky, a lawyer practising in Vienna.

2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

A. The circumstances of the case

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

1. The broadcast

4. On 19 November 2007 the applicant company aired a broadcast as part of a society programme that showed the then Federal Minister for Health, Families and Youth, A.K., and her partner, P.I., entering a restaurant in Mayerling. The report concerned mainly the Minister ’ s presence at a charity event – an exhibition of contemporary art in a gourmet restaurant and the sale of towels for the benefit of female sport cycling. The commentary referred to the Minister ’ s own forthcoming cookery book on roast pork and the chef ’ s creations for the evening.

5. The report started with the Minister arriving, with her new partner at her side. The introductory commentary stated that they were currently Austria ’ s most observed couple, but rarely appeared in public together. However, that evening the divorced Minister and her new partner, P.I., a senior manager with Austrian railways, came to H. restaurant in Mayerling together to “do good and eat well”.

6. Overlaying images of the couple entering the restaurant and A.K. greeting people, the voice-over continued, stating that A.K. looked fabulous and showed no trace of the difficulties she had successfully left behind her in 2007. On the other hand P.I., the new man at her side, was not entirely prepared for the media ’ s interest: P.I. was in his early thirties, division manager with a company of the Austrian railways and in the middle of divorce proceedings. Because of the pending court proceedings, P.I. did not want to pose officially next to his new love.

7. The images showed P.I. entering beside A.K., later stepping aside and stroking a puppy. A.K. also cuddled the puppy and expressed her love for animals in the direction of the camera.

2. The proceedings under the Media Act

8. On 19 December 2007 P.I. lodged an action under Section 7 of the Media Act ( Mediengesetz ) claiming that the commentary stating that “P.I. was the new man at A.K. ’ s side”, that “he was in the middle of divorce proceedings” and that “because of the pending proceedings he did not want to pose at his new love ’ s side” had violated his most intimate personal sphere.

9. On 26 March 2008 the Vienna Regional Court ( Landesgericht ) ruled that the statement that P.I. was “in the middle of divorce proceedings”, and that these proceedings were pending, infringed his most intimate personal sphere. The court ordered the applicant company to pay compensation in the amount of 500 Euros (EUR), to publish the operative part of the judgment and to bear the costs of the proceedings. However, it dismissed P.I. ’ s claim that the statement that he was “the new man at A.K. ’ s side” and refused to pose with “his new love” compromised his privacy.

10. The court found that the media had already reported on A.K. ’ s new relationship in summer 2007. The print media had also reported that P.I. was still married at the time and that divorce proceedings were pending. P.I. had, however, lodged proceedings under the Media Act against those publications in at least thirteen cases with the Vienna Regional Court alone. P.I. never gave interviews on his personal situation and did not pose for press photographs with A.K. P.I. had been seen in public with A.K. when they went out to dinner on several occasions, or attended several smaller parties and two weddings.

11. The court found the statement on the pending divorce proceedings to be compromising, since the end of a relationship was often considered a personal failure and resulted in adverse reactions from the public, ranging from pity to malice. Divorce proceedings were not public. Pending divorce proceedings had thus no public consequence; only the divorce itself publicly testified to the end of a marriage. While other media had reported on P.I. ’ s failed marriage before the airing of the broadcast, that had happened without his consent. Furthermore, he had objected to those reports by initiating court proceedings against them. Therefore, the applicant company could not argue that the facts broadcast had already been spread by other media.

12. As concerns the reference to the relationship between P.I. and A.K., the court found that, from their appearing together at the charity dinner, the media could assume that P.I. would consent to the reporting. That assumed consent did not include the statements on his pending divorce. The mere fact that A.K. was the Minister for Health, Families and Youth did not suffice to bring the private person P.I. into the public arena.

13. Both the applicant company and P.I. appealed against this judgment. On 15 April 2009 the Vienna Court of Appeal ( Oberlandesgericht Wien ) partly followed P.I. ’ s appeal and declared in addition that P.I. had also been hurt in his most intimate personal sphere by the statement that he was “the new man at A.K. ’ s side, but did not want to pose with his new love”. The applicant company was ordered to pay compensation in the amount of EUR 600 and to publish the operative part of the judgment. It was also ordered to bear the costs of the appeal proceedings.

14. The Court of Appeal referred to case-law according to which the “intimate personal sphere”, within the meaning of the Media Act, not only encompassed events and situations confined to home, but also a “private area within a public space” (“ Privat ö ffentlichkeit ”) meaning that private events in a public space were nevertheless not open for just anyone. When the applicant company thus complained that A.K. and P.I. had appeared in public before the charity dinner, the court referred to this concept of “private area within a public space”. The mere fact that the relationship between P.I. and A.K. had been witnessed in public before was not decisive for determining whether a specific media report was capable of compromising P.I., or not. The allegation of an extramarital affair must be considered to affect adversely the intimate sphere within the meaning of Section 7 of the Media Act, as must the statement on pending divorce proceedings, and in this context the information on a “new partner” and a “new love”. The Court of Appeal reiterated that the phrase “pending divorce proceedings” clearly has a different meaning from “finality of divorce”, since a couple could still decide to discontinue divorce proceedings. However, according to the jurisprudence of the civil courts, the intention to divorce was part of a person ’ s intimate sphere. In response to the applicant company ’ s argument that P.I. himself had demonstrated the end of his marriage in public by appearing with A.K., the Court of Appeal found that such appearances were not comparable to those of public figures within the context of their political work or state functions, but needed to be seen as belonging to that already-mentioned “private area within a public space”. Those appearances had not had any official character and did not allow the conclusion that P.I. had opened up his private life to the public arena. They could also not be interp r eted as consent to exclusive media reporting – not only on the couple attending a charity dinner, but also on their conducting an extramarital affair, being partners and in love, while divorce proceedings in respect of P.I. were still pending.

15. The Court of Appeal also rejected the applicant company ’ s argument that reporting on P.I. as being the Minister ’ s new partner was inseparable from reporting on the Minister herself. It observed that the media were entitled to report on the Minister of Health, Families and Youth ’ s conduct, considering that she was appointed by the People ’ s Party which represented a conservative image on families, that her credibility was at stake and that this was a matter of public interest. However, this did not mean that the media also had the right to violate her partner ’ s private sphere. Indeed, P.I. himself was not a public figure. It would have been sufficient, to satisfy the public interest in the Minister ’ s conduct, to report that she maintained an apparently sexual relationship with a married man. However, it had not been necessary to reveal the identity of that married man. The report in question exceeded the necessary information and also included details on P.I. ’ s marriage.

16. The Court of Appeal altered the decision of the Vienna Regional Court concerning the statement that P.I. was the “new man at A.K. ’ s side and refused to pose with his new love” because this statement had to be seen in the context of the whole broadcast and not separately. Therefore, it was also an infringement of his most intimate personal sphere. That judgment was served on the applicant company ’ s counsel on 4 May 2009.

17. The applicant company did not file a request under Article 363a of the Code of Criminal Proceedings ( Strafprozessordnung ) to the Supreme Court ( Oberster Gerichtshof ).

B. Relevant domestic law and practice

Retrial under Article 363a and 363b of the Code of Criminal Proceedings

“1. If it is established in a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette [ Bundesgesetzblatt ] no. 210/1958) or of one of its Protocols on account of a decision [ Entscheidung ] or order [ Verfügung ] of a criminal court, a retrial shall be held on application in so far as it cannot be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned.

2. All applications for a retrial shall be decided by the Supreme Court. Those who are affected by the determined violation as well as the Procurator General ’ s Office are entitled to file an application. Article 282 § 1 of the Code of Criminal Proceedings shall be applicable analogously. The application is to be filed at the Supreme Court. If the Procurator General ’ s Office files an application, those who are affected, if the one affected files an application the Procurator General ’ s Office, shall be heard. Article 35 § 2 of the Code of Criminal Proceedings shall be applicable analogously.”

“... In the present case there are no indications that a decision or order of a criminal court which had an adverse effect on the applicant had been found to be in violation of Articles 8 and 14 of the Convention by the European Court of Human Rights in respect of the applicant. However, this does not render the application inadmissible.

Article 13 of the Convention required each Contracting State to provide any person, who shows with some plausibility that there has been a violation of his or her rights under the Convention and its Protocols, with an effective remedy, in other words, to ensure that there is a national instance examining whether there has been a violation of a Convention right. Article 363a § 1 of the Code of Criminal Proceedings must not be interpreted as permitting a retrial only in cases where a violation of Convention rights has already been established in a judgment against Austria by the European Court of Human Rights.

The Supreme Court, as the highest instance in Austria in criminal matters established by the Federal Constitution, sees itself called upon to fulfil the obligations under the Convention by ensuring that in the field of criminal law the spirit of the Convention is respected also in cases in which no judgment was issued against Austria by the Court.

The Supreme Court has previously detected lacunae in the law ( planwidrige L ü cke ) as regards the protection of human rights and has used its powers to close them.

...

A judgment by the Court which establishes a violation of the rights under the Convention is a necessary and sufficient precondition for a renewal of the criminal proceedings under Article 363a. But also the legal practice and case-law of the European Court of Human Rights concerning criminal proceedings have changed significantly since the entry into force of this provision. There is therefore a lacuna in law that has to be closed. This must be done by interpreting the relevant law in a way, that a judgment by the Court is no longer a precondition for the renewal of the criminal proceedings under Article 363a. In fact, this can be done by the Supreme Court itself deciding on a violation of the rights and freedoms under the Convention upon an application under Article 363a of the Code of Criminal Proceedings. Also the Supreme Court ’ s previous case-law does not conflict with this result.

This extensive understanding of the provisions dealing with the renewal of criminal proceedings had been necessary not only because of the recent developments in human rights:

The Supreme Court was not involved in any of the seven cases, in which the Court found a violation of the right to freedom of expression under Article 10 in 2006, even though this could have been possible by means of a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) or an extraordinary re ‑ opening under Article 362 § 1 of the Code of Criminal Proceedings ( ausserordentliche Wiederaufnahme des Strafverfahrens ). Therefore, in all these cases the Supreme Court had not been given the opportunity to fulfil its function as the highest instance in criminal matters as foreseen by Article 92 of the Federal Constitution. Therefore, this court did not have the opportunity to examine the question of a possible violation of human rights. On the one side, there are proceedings before the Constitutional Court ( Verfassungsgerichtshof ) in which an allegation of a violation of the rights and freedoms under the Convention can be raised. On the other side, as it is in this case of relevance, the Supreme Court – as the highest instance in criminal matters – has the duty to observe the compliance not only with the fundamental rights guaranteed at the level of ordinary law but also with rights guaranteed at the level of constitutional law (Article 92 ( 1), Article 89 (2) of the Federal Constitution). The Supreme Court has the power to deal in an effective way with alleged violations of human rights committed by the lower courts in proceedings on a plea of nullity, a request for the renewal of proceedings, a fundamental rights complaint ( Grundrechtsbeschwerde ) and proceedings under Section 91 ( Fristsetzungsantrag ) of the Courts Act ( Gerichtsorganisationsgesetz ). These remedies give the Supreme Court the possibilities set out by Article 1 of the Convention not only to follow the Court ’ s case ‑ law but also to take, itself, the initiative for influencing the development of human rights law on its own.

...”

20. In the same judgment, the Supreme Court further stated that it would apply the criteria set out in Article 35 of the Convention on the admissibility of an application also in respect of a request for renewal of criminal proceedings under Article 363a, in particular the six-month time-limit, also in a case which had not been previously examined by the Court and in which no judgment of the Court had been issued.

21. Since then, the Supreme Court has decided in several cases on requests lodged under Article 363a of the Code of Criminal Proceedings as from 2008 onwards (for example the decision of 26 June 2008, 15 Os 41/08f ; of 26 June 2008, 15 Os 25/08b; of 23 July 2008, 13 Os 162/07h ; of 21 August 2008 , 15 Os 30/08p; of 15 January 2009, 12 Os 180/08z; of 14 October 2009, 15 Os 171/08y ; of 14 October 2009, 12 Os 106/09m). In all of these cases the Supreme Court confirmed its leading decision of 1 August 2007 and developed further its case-law in regard to the admissibility of the applications under Article 363a of the Code of Criminal Proceedings. Among these were cases concerning the Media Act (for example the decision of 14 October 2009, 15 Os 171/08y). In cases where the Supreme Court found a violation of rights guaranteed under the Convention, it quashed the lower court ’ s decisions and ordered that a fresh decision be taken (for example the decision of 15 January 2009, 12 Os 160/08h; of 14 January 2010, 13 Os 36/09g; of 17 September 2013, 11 Os 73/13i).

COMPLAINT

23. The applicant company complained that the judgments of the Austrian courts ordering it to pay compensation to P.I., to bear the cost of the proceedings, as well as to publish the operative part of the judgment, violated its right to freedom of expression under Article 10 of the Convention.

24. The Government contested that argument.

THE LAW

25. Article 10 of the Convention reads 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 and regardless of frontiers. ...

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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

26. The Government submitted that the applicant company had failed to exhaust domestic remedies because it had not lodged an application for renewal of the criminal proceedings under Article 363a of the Code of Criminal Proceedings against the judgment of 15 April 2009. Such an application could have been lodged on the basis of the findings of the Supreme Court ’ s decision of 1 August 2007. This decision had been the subject of intense discussion among academic writers, had been published and had been disseminated among lawyers. It was not only published in legal journals specifically intended for lawyers, but also in daily newspapers. Therefore, the applicant company, assisted by lawyers in the proceedings before the domestic courts, must have been aware of this possibility. This remedy had also been used by others, as statistics of the Supreme Court show. Furthermore, this remedy would have been sufficient to afford redress in respect of the breaches alleged.

27. As to the merits, the Government argued that, even taking into account in general the central role the media plays in the implementation of freedom of expression, the incriminated statements could not be regarded as a contribution to a debate of general interest. Even if there was a justified public interest in A.K. ’ s private life, this did not mean that details about the private life of P.I., who was not a public figure, were also of public interest. Also the sanction was proportionate, as no criminal conviction was passed and only a moderate amount of compensation was imposed.

28. This was disputed by the applicant company, which submitted that the application for renewal of the criminal proceedings under Article 363a of the Code of Criminal Proceedings had only exceptional character. Also, all regular remedies had to be exhausted in order to file this remedy. Furthermore, the filing of such an application would not interrupt the six ‑ month time-limit under Article 35 of the Convention for lodging a complaint to the Court. Therefore an application under Article 363a of the Code of Criminal Proceedings could not be considered an effective and appropriate remedy for the purposes of Article 35 of the Convention.

29. The applicant company also argued that the interference was not justified under Article 10 § 2 as the broadcast fulfilled a public interest. The public had a right to be informed about the private life of A.K. and P.I., who had been aware of the fact that the media would be present at the charity event.

30. The Court will first examine the question of whether the applicant company exhausted domestic remedies as required by Article 35 of the Convention. In this respect it reiterates that the object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address allegations that a Convention right has been violated and, where appropriate, to afford redress before those allegations are submitted to the Court (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III and KudÅ‚a v. Poland [GC], no. 30210/96, § 152, ECHR 2000 ‑ XI ).

33. In the present case, the applicant company was ordered by a criminal court to pay compensation under Section 7 of the Media Act ( Mediengesetz ). The appeal was dismissed by the Court of Appeal and the Supreme Court was not involved in domestic court proceedings as the law does not grant the possibility of a plea of nullity to the Supreme Court in such cases. From the material available, it transpires that the Supreme Court, in its case-law on Article 363a of the Code of Criminal Proceedings, has applied this provision in several cases concerning the subject matter.

34. The remedy of an application under Article 363a of the Code of Criminal Proceedings was available to the applicant company. When it lodged the present application on 4 November 2009 to the Court, the applicant company assisted by a lawyer, must have been aware of this possibility.

35. The applicant company has not filed an application to the Supreme Court and has not shown that the present remedy was inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving it from the requirement .

36. Therefore, the applicant failed to exhaust all domestic remedies as required by Article 35.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 29 October 2015 .

Søren Nielsen András Sajó Registrar President