FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13540/04 by FALTER ZEITSCHRIFTEN GMBH against Austria

The European Court of Human Rights ( First Section), sitting on 8 February 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. Spielmann, judges , and Mr S. Nielsen , Section Registrar .

Having regard to the above application lodged with the Court on 31 March 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 to the observations in reply submitted by the applicant company,

Having deliberated, decides as follows:

THE FACTS

The applicant company, Falter Zeitschriften GmbH, is the owner and publisher of the weekly newspaper Falter , having its registered office in Vienna . It was represented before the Court by Mr A. Noll, a lawyer practising in Vienna . The respondent Go vernment were represented by Mr F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs

The circumstances of the case

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

In the autumn of 2000 a police officer revealed that he and some colleagues had repeatedly transmitted data from the central police computer to officials of the Austrian Freedom Party ( FPÖ ). Subsequently criminal investigations were opened against several per sons, amongst them Mr Kabas and Mr Kreiβl, who were, respectively, the leader of the Vienna branch of the FPÖ and his secretary.

In May 2002 criminal investigations against Mr Kabas were discontinued. Mr Kreiβl was convicted by the first-instance court in the autumn of 2002, but was subsequently acquitted on appeal.

In the meantime, o n 30 April 2002 , th e applicant company published a one-page article in an issue of Falter commenting on the proceeding and the outcome of the investigations. The relevant passa ge concerning Mr Kabas and Mr Kreiβl read as follows:

“...The commission investigated and proposed to the investigating judge that pre-trial detention be ordered for Hilmar Kabas, head of the Vienna FPÖ, and Michael Kreiβl, his secretary. However, these individuals were both immune. Neither pre-trial detention nor house searches could be ordered rapidly. In those weeks, o n the premises of the Vienna FPÖ so much material , like never before in previous years , was passed through the sh r edder . Files were discovered with some AUF [police labour union] officials in which just those passages subsequently to be found in FPÖ press releases had been highlighted in yellow.... ”

Referring to the penultimate sentence o f this passage, Mr Kabas and Mr Kreiβl instituted proceedings in the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ) , claiming compensation and seeking an order for publication of the judgment under sections 6 and 7b of the Media Act ( Mediengesetz ).

On 4 March 2003 the Regional Court held an oral hearing and examined three witnesses requested by the defence. The press officer of the Vienna Green Party ( D ie Grünen ), which had its pre mises under those of the Vienna FPÖ, stated that at the relevant time the doors of the FPÖ branch had been locked and there had been rumours that the shredder had been in continuous use. The court also examined two journalists from the Salzburger Nachrichten , an Austrian daily newspaper which had reported on the issue. Both stated that two independent, anonymous sources had confirmed that at the relevant time a large amount of paper relating to the “police information scandal” had been shredded on the premises of the Vienna FPÖ . However, the journalists refused to give any further information regarding their sources.

On the same day the court found that the offending statement amounted to defamation under Article 111 of the Criminal Code ( Strafgesetzbuch ) and to a violation of the presumption of innocence of Mr Kabas and Mr Kreiβl, as guaranteed under section 7b of the Media Act ( Mediengesetz ). It ordered the applicant company to pay 1,500 euros (EUR) in compensation to Mr Kabas and Mr Kreiβl respectively, to publish the judgment and to pay the costs of the proceedings to each of them.

The court found that the offending statement, when read in its context, suggested that Mr Kabas and Mr Kreiβl had themselves destroyed evidence concerning the criminal proceedings instituted against them or at least had approved that destruction. This reading also appeared logical in the light of the fact that Mr Kabas and Mr Kreiβl would have benefited the most from the destruction of such material and that they were both, in their respective positions, the responsible persons. However, the evidence obtained at the trial was not su fficient to prove this allegation as the witnesses could not testify to anything they had perceived themselves. Furthermore, the applicant company had not given Mr Kabas and Mr Kreiβl the opportunity to comment on the allegations raised against them. The court lastly noted that the article did not refer to the Salzburger Nachrichten and therefore dismissed the applicant company ’ s argument that the offending statement was a neutral citation.

The applicant company appealed against this judgment. It submitted that the Regional Court should have heard a representative from the administration of the premises in question who could have stated that at the relevant time more paper than average had been put through the shredder by the FPÖ party. The court further should have examined the author of the article in order to give him the opportunity to prove that journalistic diligence had been complied with. It further complained that, in the light of the evidence given by the witnesses at the trial, the court should have reached the conclusion that there had been sufficient proof of the offending statements ’ veracity.

On 8 September 2003 the Vienn a Court of Appeal ( Oberlandesgericht ) confirmed the Regional Court ’ s judgment but increased the amount of compensation to be paid to Mr Kabas and Mr Kreiβl, respectively, to EUR 3,000 . It noted that the applicant company ’ s request for the examination of a representative of the premises in question had not been adequately submitted as it was filed only in written submissions prior to and not at the trial. In any event, however, a statement that more paper than average had been put through the sh r edder would not prove that it had in fact been evidence concerning the “police information affair” which had been destroyed. An examination of the author of the article to prove that journalistic diligence had been complied with had not been necessary. The applicant company had admitted that Mr Kabas and Mr Kreiβl had not been consulted before the writing of the article and it had not alleged that there had been exceptional circumstances, such as official documents , to prove the statement at issue, which would have exonerated it from this obligation. The court finally noted that the assessment of evidence was a matter to be dealt with by the courts. In the present case, the court could not possibly reach the conclusion that the information provided by anonymous sources had been reliable and credible as the journalists ’ statements in this regard had to be considered as uncorroborated assessments by witnesses. In any event, these statements merely asserted that much material had been shredded, but did not prove that Mr Kabas and Mr Kreiβl had been involved.

This judgment was served on the applicant company ’ s counsel on 28 October 2003.

COMPLAINTS

The applicant company complained under Article 10 of the Convention about the above judgments . It submitted in particular that by refusing to consider the information emanating from anonymous sources, the Austrian courts had imposed a burden of proof in breach of the requirements of this Article. The applicant company further complained under Article 6 of the Convention that the proceedings had been unfair in that the courts had refused its requests for the examination of a representative of the building ’ s administration and of the article ’ s author.

THE LAW

1. The applicant company complained that the above-mentioned judgments had been delivered in breach of its rights as provided in Article 10 of the Convention . The relevant part of 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.”

The Government contested this complaint. They stated that there had been interference with the applicant company ’ s right to freedom of expression, but that it was, however, prescribed by law and “necessary in a democratic society” in order to protect the rights of Mr Kabas and Mr Kreiβl. As the Austrian courts had rightly pointed out, the offending sentence read in its context could only be understood in the sense that evidentiary material of relevance to the criminal proceedings against Mr Kabas and Mr Kreiβl had been destroyed. This was a statement of fact susceptible of proof and furthermore defamatory to the plaintiffs as it accused them of an offence punishable by up to one year ’ s imprisonment. However, the evidence submitted by the applicant company to prove this statement had been insufficient. None of the witnesses at trial had been able to testify to perceptions of their own. While the protection of journalistic sources was one of the basic pillars of the freedom of the press, the need for disclosure of these sources might prevail in certain circumstances. In the present case, the applicant compa ny had furthermore not given Mr Kabas and Mr Kreiβl the opportunity to comment and had, therefore, not complied with its obligation of journalistic diligence. The Government lastly argued that the interference had also been proportionate, as the compensation the applicant company had been ordered to pay was moderate.

The applicant company contested these arguments. It argued that the offending sentence did not make any specific reference to Mr Kabas and Mr Kreiβl and, in particular, did not accuse them of having destroyed any material themselves or of having known about it. Furthermore, no allusion to “evidentiary material” was made as only the word “material” had been used. The Court of Appeal had refused to consider the anonymous sources cited by both journalists examined at the trial. It had not had regard to the interest of the press in not disclosing journalistic sources but had held that only revealed sources were reliable. However, a general obligation to disclose journalistic sources would constitute a massive restriction on the freedom of the press as it would hamper the latter ’ s access to information and, therefore, prevent it from fully playing its role of “public watchdog”. The applicant company further contested the accusation that it had not complied with journalistic diligence. It argued, in particular, that the reliance on official documents in order to prove a statement could not be requested as a matter of principle. Furthermore, it was not always possible to obtain the comments of the persons concerned . In the present case, Mr Kabas and Mr Kreiβl would merely have contested any allegations in a general manner.

The Court finds that the impugned judgments interfered with the applicant company ’ s right to freedom of expression as guaranteed by Article 10 § 1 of the Convention. Furthermore, it is not disputed that the interference was prescribed by law and pursued a legitimate aim, namely the protection of the rights and reputation of others. The parties ’ arguments concentrate on the question whether the interference was necessary. In this regard, the Court observes at the outset that the article dealt with the criminal investigations concerning the “police information affair”, an issue of public and political interest at the time of the events. As regards the general principles relating to the freedom of the press in the context of political reporting and the question of assessing the necessity of an interference with that freedom, the Court refers to the summary of its established case-law in the cases of Feldek v. Slovakia ( no. 29032/95, §§ 72-74 , ECHR 2001 ‑ VIII with further references) and Scharsach and News Verlagsgesellschaft v. Austria ( no. 39394/98, § 30 , ECHR 2003 ‑ XI ). In accordance with its case-law, the Court will examine whether the reasons adduced by the domestic courts were “relevant and sufficient” and whether the interference was proportionate to the legitimate aim pursued. In so doing the Court will have regard to the domestic courts ’ margin of appreciation.

Turning to the elements developed by the Court ’ s case-law that are of particular relevance to the present case, the Court recalls the distinction to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof (see, for instance, Feldek , cited above, §§ 75-76; Jerusalem v. Austria , no. 26958/95, § 43 , ECHR 2001 ‑ II ; De Haes and Gijsels v. Belgium , judgment of 24 February 1997, Reports of Judgments and Decisions 1997 ‑ I, p. 236 , § 47; and Oberschlick v. Austria (no. 2) , judgment of 1 July 1997, Reports 1997 ‑ IV, p. 1276 , § 33 ).

In the present case, the expression in question, to the effect that over a certain period of time an unprecedented amount of material was pas sed through the sh r edder o n the premises of the Vienna FPÖ , amounted to a factual statement. The Court finds that this allegation, read in its immediate context of the report on the criminal investi gations against Mr Kabas and Mr Kreiβl, together with the information that at that very time no house searches could be ordered against them and the subsequent reference to files implicating the FPÖ that had been found with police officers, suggested at the very least that documents concerning the criminal proceedings against Mr Kabas and Mr Kreiβl had been destroyed. This accusation was undeniably serious as it implied that there had in fact existed incriminating material against them.

The Court will therefore examine whether the applicant company acted in good faith and complied with the ordinary journalistic obligation to verify the offending statement. This obligation requires that it should have relied on a sufficiently accurate and reliable factual basis which could be considered proportionate to the nature and degree of its allegation, given that the more serious the allegation, the more solid the factual basis has to be (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78 , ECHR 2004 ‑ XI I). The Court will take into consideration the fact that the offending accusation, had it been true, would have entailed the criminal conviction of Mr Kabas and Mr Kreiβl . Notwithstanding the particular status of Mr Kabas and Mr Kreiβl as politicians, who are subject to wider limits of acceptable criticism than private individuals, they had a right to be presumed innocent until proved guilty according to law.

During the domestic proceedings, the applicant company relied on the evidence given by three witnesses for the defence. While one invoked general rumours concerning the frequent use of the shredder in the FPÖ, the other two referred to the statements of other, anonymous, persons whose identity they refused to reveal. The Court sees no reason to differ from the domestic courts ’ view that the first testimony mentioned above was insufficient to prove the suggested destruction of evidence by Mr Kabas and Mr Kreiβl, and that the reference to undisclosed sources by the two other witnesses did not provide reliable evidence. In the latter regard, the Court notes that the applicant company did not refer to any third sources but presented the alleged events as established facts. It follows that the applicant company could not have relied on a sufficiently accurate and reliable factual basis for the publication of the offending statement.

Having regard, furthermore, to the undisputed fact that the applicant company had published the offending statement without contacting Mr Kabas and Mr Kreiβl or attempting to put their side of the story, the Court finds that the applicant company failed to comply with the requirements of “journalistic diligence”.

For these reasons, the Court finds that the int erests of Mr Kabas and Mr Kreiβl in protecting their reputation were not counterbalanced by any important public interest in the freedom of the applicant company to impart the information concerned. The Court is therefore satisfied that, in finding that Mr Kabas ’ and Mr Kreiβl ’ s interests outweighed the applicant company ’ s freedom of expression, the domestic courts ’ decisions were based on reasons which can be regarded as relevant and sufficient. It follows that the interference with the applicant company ’ s freedom of expression was not disproportionate to the aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2 of the Convention. The applicant company ’ s complaint under Article 10 of the Convention must therefore be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant company further complained that the above proceedings had entailed a breach of its rights under Article 6 of the Convention, as the Regional Court had refused its requests for the examination of a representative from the administration of the building in question and of the article ’ s author.

The relevant part of Article 6 reads as follows:

“1. In the determination ... 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 ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

The Government argued in the first place that the applicant company had not exhausted domestic remedies as it had not repeated its requests for the taking of evidence in the course of the appeal proceedings. In any event, however, sufficient reasons had been given for the refusal to take further evidence. The courts had argued that the requested evidence was not relevant as proof of the applicant company ’ s offending statement that evidentiary material concerning Mr Kabas and Mr Kreiβl had been destroyed. The Government lastly pointed out that the Regional Court had examined three witnesses for the defence altogether.

The applicant company contested these arguments. It submitted that it had exhausted domestic remedies by requesting the taking of the evidence before the first-instance court. It had not been necessary to repeat the request before the appellate court. In any event, the appellate court had stated that the requested evidence was not relevant. The applicant company further argued that the testimony of a representative of the building in question had been relevant to the proceedings, as he would have stated that more paper than average had been destroyed on the premises of the FPÖ at the relevant time. The offending statement had merely referred to “material” and not “evidentiary material”. However, even assuming that the impugned passage had suggested that “evidentiary material” had been destroyed, the representative of the building ’ s administration should have been examined as he might also have been able to comment on this fact. In any event, testimony that an extraordinary quantity of paper had been destroyed would have allowed the conclusion that among that paper there had also been “evidentiary material”. By not allowing the requested evidence, the Austrian authorities had breached the principle of equality of arms.

The Court notes that the Government submitted that the applicant company had not exhausted domestic remedies. However, the Court need not examine whether this was the case, because the applicant company ’ s complaints about the authorities ’ refusal to take further evidence are, in any event, manifestly ill-founded for the following reasons. The Court reiterates that Article 6 does not grant the accused an unlimited right to have witnesses or experts called. As a general rule, it is for the domestic courts to assess the evidence before them as well as the relevance of the evidence which the defendants seek to adduce. M ore specifically, Article 6 § 3 (d) leaves it to the domestic courts to assess whether it is appropriate to call witnesses; it does not require the attendance and examination of every witness on the accused ’ s behalf ( see Perna v. Italy [GC], no. 48898/99, §§ 29, 6 May 2003; Bricmont v. Belgium , judgment of 7 July 1989, Series A no. 158, p.31, § 89; and Vidal v. Belgium , ju dgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33).

In the present case, the Regional Court examined three witnesses for the defence and dismissed the applicant company ’ s requests that further evidence be taken, as it considered this evidence not to be relevant to the proceedings. The Court of Appeal dismissed the applicant company ’ s complaints in this connection. It considered, in particular, that testimony by a representative of the administration of the premises at issue to the effect that at the relevant time more paper than average had been put through the shedder by the FPÖ party would not have been sufficient to prove the offending accusation against Mr Kabas and Mr Kreiβl. Based on the uncontested fact that Mr Kabas and Mr Kreiβl had not been consulted before the writing of the article , it further found that journalistic diligence had not been complied with and, therefore, held that it was not necessary to examine the author of the article in which the offending statements had been made.

The Court finds that these were sufficient and relevant reasons for the dismissal of the applicant company ’ s requests that further evidence be taken.

In conclusion, the Court cannot find that the taking of evidence in the proceedings at issue infringed the rights of the defence to such an extent that it constituted a breach of Article 6 §§ 1 and 3 (d).

The applicant company ’ s complaints under Article 6 of the Convention must therefore be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these r easons, the Court by a majority

Decides to discontinue the application of Article 29 § 3 of the Convention ;

Declares the application inadmissible.

Søren Nielsen Christos Rozakis              Registrar              President