FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31820/04 by Susanne RIESS-PASSER against Austria

The European Court of Human Rights (First Section), sitting on 20 September 2007 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr L. Loucaides ,

Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner, Mr K. Hajiyev , Mr D. S pielmann , judges ,

and Mr A. Wampach , Deputy S ection Registrar ,

Having regard to the above application lodged on 23 August 2004,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Susanne Riess -Passer, is an Austrian national who was born in 1961 and lives in Salzburg . She was rep resented before the Court by Gheneff-Rami , a law firm in Vienna . The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff , Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A. The circumstances of the case

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

On 16 September 2002 the applicant who, at that time, was the Vice-Chancellor of the Republic of Austria, brought proceedings under the Media Act ( Mediengesetz ) against Verlagsgruppe News, a limited liability company which is the owner of the weekly “Format”, since it had published an article accusing her of corruption. The applicant was represented by counsel in these and the subsequent proceedings.

By judgment of 13 February 2003 the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ) found that the accusations voiced against the applicant amounted to defamation and ordered Verlagsgruppe News to withdraw the issue of “Format”, to publish the judgment and to pay compensation to the applicant. That judgment was upheld by the Vienna Court of Appeal ( Oberlandesgericht ) on 15 September 2003.

On 5 December 2003 the applicant requested the Vienna Regional Criminal Court to impose a fine on Verlagsgruppe News under Section 20 of the Media Act, arguing that it had not duly published the judgment of 13 February 2003. In particular, she claimed that, although the judgment had been published in “Format” on 5 December 2003 , the heading had been incorrect and the publication was smaller and less visible than the incriminated article had been. Subsequently, the applicant filed further identical requests each time a new issue of “Format” was published without rectifying these shortcomings.

By decision of 31 December 2003 the Vienna Regional Criminal Court dismissed the applicant ’ s requests, finding that the change of heading was irrelevant and that the publication of the judgment was equivalent to the impugned publication in terms of visibility. Upon the applicant ’ s appeal the Vienna Court of Appeal quashed the decision on 17 February 2004 . It considered that the change of heading was indeed misleading and that the judgment had therefore not been duly published as required by Section 20 of the Media Act. It ordered Verlagsgruppe News to pay the applicant 1,200 euros (EUR).

On 9 March 2004 Vienna Regional Criminal Court granted the applicant ’ s requests made after its initial decision of 31 December 2003 . It ordered Verlagsgruppe News to pay EUR 3,800 to the applicant. Verlagsgruppe News appealed against this decision.

On 14 April 2004 the Vienna Court of Appeal partly granted the appeal, dismissing those of the applicant ’ s requests which had been made after the decision of 31 December 2003 but before the service of the appeal judgment of 17 February 2004 . Consequently, it reduced the fine to be paid to the applicant.

Throughout the proceedings under section 20 of the Media Act, the courts took their decisions sitting in camera. The applicant did not request a hearing nor did she complain about the lack of a hearing in her appeals.

B. Relev ant domestic law and practice

1. The Media Act

In cases in which publication of a judgment has been ordered but has not been duly and/or timely complied with, Section 20 of the Media Act provides that the court shall, upon the claimant ’ s request and after having heard the media owner, impose a fine on the latter which is payable to the claimant.

The Media Act does not provide for the holding of hearings in proceedings concerning the imposition of fines. The courts ’ practise is to take decisions under Section 20 of the Media Act in camera.

2. Case-law relating to the holding of (public) hearings

In the light of the Court ’ s Werner v. Austria judgment of 24 November 1997 ( Reports of Judgments and Decisions 1997 ‑ VII) the Supreme Court found in a judgment of 30 June 1999 (13Os86/99) that the relevant provision, namely section 6 § 3 of the Criminal Proceedings Compensation Act, which required the courts to hear the claimant but was silent as regards the holding of a public hearing, had to be interpreted in conformity with the requirements of Article 6 § 1 of the Convention. The courts were therefore required to hold a public hearing. In a judgment of 12 December 1999 (G 259/98) the Constitutional Court confirmed that such an interpretation of section 6 § 3 of the said Act was in conformity with the constitution.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention about the lack of a hearing in the proceedings under Section 20 of the Media Act.

THE LAW

The applicant complained about the lack of a hearing. She relied on Article 6 § 1 of the Convention which, so far as material, reads as follows:

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

As to the admissibility of the application the Government, referring to the Court ’ s case-law, contended that Article 6 did not apply to the proceedings under Section 20 of the Media Act (see, in particular, Freilinger and Others v. Austria , no. 4533/02, 9 February 2006, concerning proceedings under the Enforcement Act). While the proceedings under section 6 of the Media Act involved the determination of a civil right, namely the right to compensation and other remedial measures in case of defamation in a medium, the subsequent proceedings under section 20 of the Media Act were similar to enforcement proceedings. They did not involve the determination of the merits of the claim, but served to ensure that the publication of the judgment ordered in the main proceedings was complied with. Fines imposed under section 20 were a means of coercion to ensure compliance.

Furthermore, the Government asserted that the applicant had failed to exhaust domestic remedies, since she had not requested a hearing either at first or at second instance. In the light of the Supreme Court ’ s case-law (see above, relevant domestic law and practice) such a request offered reasonable prospects of success. Moreover, the applicant had not complained about the lack of a hearing in her appeal.

Alternatively, as to the merits of the application, the Government argued that there were special circumstances which justified dispensing with a hearing, since the only issue to be determined in the proceedings under section 20 of the Media Act was whether Verlagsgruppe News had correctly published the judgment of 13 February 2003. This was a question of law which could be determined on the basis of the file.

For her part, the applicant asserted that Article 6 of the Convention applied to the proceedings at issue. The indemnity imposed under section 20 of the Media Act was not a fine but compensation for damages, since the sum had to be paid to the injured party and not to the State (see Krone Verlag GmbH & Co. KG v. Austria (no. 2) , no. 40284/98, § 39 , 6 November 2003 ). The proceedings could not be compared to ordinary enforcement proceedings, since the amount of the indemnity had to be fixed with regard to a number of factors.

As to exhaustion of domestic remedies, the applicant conceded that she did not request a hearing throughout the proceedings and did not complain about the lack of a hearing in her appeal. However, she asserted that doing so would not have offered prospects of success, since it was the courts ’ practise not to hold hearings.

The Court considers that it does not have to examine in the present case whether or not Article 6 of the Convention applies to proceedings under section 20 of the Media Act, since, in any case, the application is inadmissible for the following reasons.

The Court reiterates that Article 35 § 1 requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Akdi var and Others v. Turkey , judgment of 16 September 1996, Reports 1996 ‑ IV, p. 1210, § 66) . In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is for the Government to show that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered re asonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case (ibid., p. 1211, § 68).

In the present case it is undisputed that the applicant did not make any attempt to obtain a hearing in the proceedings at issue. The Court finds that there is force in the Government ’ s argument that either requesting a hearing at first instance or complaining about the lack of a hearing in her appeal would have offered reasonable prospects of success. Admittedly, section 20 of the Media Act does not provide for the holding of a hearing and the courts ’ practice was not to do so. However, there i s case-law by the Supreme Court , confirmed by the Constitutional Court (see above, relevant domestic law and practice) to the effect that, where domestic law is silent on the issue while Article 6 of the Convention requires a hearing, the courts have to interpret the relevant provisions in conformity with the Convention and, thus, to hold a hearing.

The Court notes that although the Supreme Court ’ s decision concerned proceedings under the Criminal Proceedings Compensation Act, the legal situation is comparable, since such proceedings fall under the civil head of Article 6 of the Convention and therefore require a hearing (see Werner , cited above, pp. 2508-09, §§ 38-40 and 51) while domestic law and practice did not provide for one. The applicant did not advance any argument why the courts would have come to another conclusion in the context of the proceedings under section 20 of the Media Act. In sum, the Court finds that the applicant, who was represented by counsel, could be expected to request a hearing or to complain in her appeal about the court ’ s failure to hold one. Since she failed to do so, she failed to exhaust domestic remedies.

It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

André Wampach Christos R ozakis Deputy Registrar President