FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36961/02 by Krone Verlag GESELLSCHAFT M.B.H. and Gerhard WALTER against Austria

The European Court of Human Rights (First Section), sitting on 13 May 2004 as a Chamber composed of:

Mr P. Lorenzen , President , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner, judges ,   and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 1 October 2002,

Having deliberated, decides as follows:

THE FACTS

The first applicant Krone Verlag Gesellschaft m.b.H., is the owner and publisher of the daily newspaper “Neue Kronen Zeitung” with its seat in Vienna. The second applicant, Gerhard Walter, is an Austrian national,  who was born in 1963 and lives in Vienna. He is a journalist working for the first applicant.

A. The circumstances of the case

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

Between 1993 and 1997 a series of letter bombs which severely injured some of the addresses was sent to politicians and other persons of public interest in Austria.

The bombs were accompanied by confessing letters signed “ Bajuwarische Befreiungsarmee ” (Bavarian [Germanic tribe tracing back to the 5 th and 6 th century] Liberation Army).

After the first assaults, an expert on criminal psychology drew up a psychological profile of the author(s) of these acts and concluded that they were committed by a single person. According to another hypothesis the series of bombs had to be attributed to a group of right wing extremists.

From April 1995 until January 1997 Mr Einem was Federal Minister for the Interior ( Bundesminister für Inneres ).

The author of the assaults, Franz Fuchs, a person with no particular connection to any political grouping, was arrested in 1997.

In October 1997 sporadic critics in the press and by some politicians reproached Mr Einem with having neglected the theory of a single author. A politician of the FPÖ (Austrian Freedom Party) accused Mr Einem of having suppressed the single author profile because it did not correspond with what he imagined the author of the offences would be.

In March 2001 the television film “The Letter Bomber” (“ Der Briefbomber” ), an Austrian and German co-production, which was to be shown on Austrian and German television, was presented to the press. The film, a fiction, based its story-line on the above cited series of letter bombs. It dramatised in substance the criminal investigations from the point of view of the expert on criminal psychology, the responsible of the investigation team and the committer himself.

In the film the character of the Minister for the Interior, Mr M, favoured for political reasons the theory attributing the bombs to a group of right wing extremists and therefore suppressed the single author theory. This becomes particularly evident in one scene, where Mr M forbade the film character personating the expert on criminal psychology to publish the psychological profile of the author of the offences and shortly afterwards forbade him to speak to the press.

1. The article at issue

On 29 March 2001 the second applicant published a two-page article  under the heading “Bomber–Film with explosive message” in the “Neue Kronen Zeitung”.

The subtitles read as follows: “Already seen for readers of the “Krone”: the television thriller about the hunting down of Franz Fuchs. Suspenseful and close to the truth. Particularly close to the political [truth]”.

In its first paragraph the article again stated that the film at issue was a “thriller with an explosive political message- against the former Federal Minister for the Interior Caspar Einem”

The article went on to describe the film as the result of meticioulous investigation and possessing a documentary quality. It then explained that the film concentrated on two important aspects. On the one hand the fierce and long lasting battle of the criminal psychologist defending the single author theory against his colleagues.  And, on the other hand, his battle

“against a Minister for the Interior who refuses for political reasons to communicate the psychological profile of the author of the offences - which later turned out to be astonishing correct - to the public. And this because in view of forthcoming elections the Minister - everybody in Austria knows, that Caspar Einem is meant - prefers to have the search continued much too long in the right wing circles. [This matter is] still political explosive today. Bad rumour has it that this is possibly the reason why the broadcast [of the film] by the Austrian Broadcasting Corporation - originally planned for one week before the elections in Vienna -  has been postponed to 22 April.”

2. Defamation proceedings and compensation under the Media Act

Mr Einem filed a private prosecution for defamation ( üble Nachrede ) against the second applicant and a compensation claim against the first applicant company under the Media Act ( Mediengesetz ) with the Vienna Regional Court ( Landesgericht ).

On 10 May 2001 the Regional Court ordered the first applicant to publish a notice on the introduction of the proceedings.

On 26 July 2001 and on 27 September 2001 the Regional Court held hearings and heard inter alia the second applicant, Mr Einem, the criminal psychologist, the Director General for public security ( Generaldirektor für öffentliche Sicherheit ) and the responsible police officer for the criminal investigations at the time of the letter bomb series.

On 27 September 2001 the Regional Court convicted the second applicant of defamation under Article 111 of the Criminal Code ( Strafgesetzbuch ) and sentenced him to a fine 60 daily rates ( Tagessätze) of ATS 900 each (i.e a total of ATS 54, 000 [approximately € 3,920]) or 30 days' imprisonment in default.

It further ordered the applicant company to pay ATS 50,000 (approximately € 3,630) as compensation to Mr Einem, pursuant to Section 6 of the Media Act.

Finally, the court ordered confiscation of the remaining stocks of the relevant issue of “Neue Kronen Zeitung” and the publication of extracts from its judgment.

The court noted that the second applicant had not merely repeated the story-line of the television film but had rather given the reader the impression that he identified with its message. He had conveyed to the reader that Mr Einem, in abuse of his authority, had disregarded his duty to resolve properly and efficiently the letter bomb case. He had thereby accused Mr Einem of behaviour contrary to honour or morality ( unehrenhaftes Verhalten ), namely of politically motivated breach of his professional duty.

This accusation was a statement of fact. The applicant had, however, failed to supply any evidence to prove this reproach.

The court noted in this regard that Mr Einem had mobilised a special investigation team for the investigation concerning the letter bomb series. Mr Einem had not given any instruction as to the orientation of the investigations nor had he prevented the experts from investigating all avenues.

The court found it established that in November 1996 a book about the psychological profile of a single author of all acts was presented to the public. The idea behind the book, which had been written in cooperation with the Director General for public security and the expert on criminal psychology, was to get by this way in contact with the still unknown author of the attacks and to prompt a reaction from him. It subsequently came to a debate between the chief executive officer for public security and Mr Einem as the latter had not been informed about the publication of the book. The expert on criminal psychology had been instructed not to give any statements on that subject to the public. However, there had never been a discussion between Mr Einem and the expert on criminal psychology during which the latter had requested permission from Mr Einem to publish the single committer profile which Mr Einem had refused. Nor was there any further indication that Mr Einem had in fact influenced, had given instructions or had hindered the investigations.

The court further noted that the second applicant had not complied with the standards of journalistic diligence. The second applicant had in particular never confronted Mr Einem with the reproaches he was raising against him.

The applicants appealed against this judgment and argued inter alia that the court had wrongly classified the article at issue as a statement of fact instead of a value judgment, which, at all events, was based on true facts. They referred in this regard to the statements of the witnesses in the proceedings before the Regional court according to which Mr Einem had been of the opinion that the bombs had to be attributed to several committers.

On 15 April 2002 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicants' appeal. It noted that the article could not be seen as neutral reporting. It was true that the second applicant in his article correctly reproduced the story of the film. He had, however, added formulations and wordings which showed that he identified with the film's message, found its reproaches justified and repeated them.

It further noted that at the time of the criminal investigations the experts' opinions had been divided on the question whether the bombs had to be attributed to a single person or to a group of right wing extremists. At this time nobody could have taken it for established that the single committer theory finally turned out to be correct. The mere preference of one of the hypothesis could therefore not justify the reproach that the other hypothesis had been suppressed on purpose. Nor did the statements of the witnesses in the proceedings at issue give any indication that Mr Einem had abused his function.

B. Relevant domestic law

     Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him/her. In this context “defamation ” has been defined in Section 111 of the Criminal Code ( Strafgesetzbuch ), as follows:

“ 1. As it may be perceived by a third party, anyone who accuses another of having a contemptible character or attitude, or of behaving contrary to honour or morality, and of such a nature as to make him contemptible or otherwise lower him in public esteem, shall be liable to imprisonment not exceeding six months or a fine ...

2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ...

3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true.”

COMPLAINTS

The applicants complained that their convictions for defamation under the Criminal Code and the Media Act respectively, had infringed their right to freedom of expression under Article 10 of the Convention.

THE LAW

In respect of their above complaint the applicants relied on Article 10 of the Convention, which, as far as material, 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...

The Court finds that the Austrian courts' decisions interfered with the applicants' right to freedom of expression under Article 10 of the Convention.

The Court finds further that the interference had a legal basis under Austrian law, namely Section 6 of the Media Act and Article 111 of the Criminal Code, and that it pursued the legitimate aim of protecting the reputation and rights of others. The only issue is, therefore, whether it was necessary in a democratic society.

The Court reiterates that, while the press has the duty to impart information and ideas on all matter of public interest, it must do so in a manner consistent with its obligations and responsibilities. In particular, it must not overstep certain bounds in respect of the reputation and rights of others. As regards journalists reporting on issues of general interest, the safeguard afforded by Article 10 is subject to the proviso that they are acting in good faith in order to produce accurate and reliable information in accordance with the ethics of journalism (see Harlanova v. Latvia , (dec.), no 57313/00, 3 April 2003, Verdens Gang and Mrs Aase v. Norway (dec.), no 45710/99, 16 October 2001).

The Court further reiterates that a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof (see amongst many other authorities De Haes et Gijsels v. Belgium , judgment of 24 February 1997, Reports 1997-I, p.235, § 42).

In the present case, the Austrian courts convicted the applicants for defamation of the former Federal Minister for the Interior, Mr Einem. They found that the applicants had accused Mr Einem of having interfered with the investigations of the letter bomb case for political motives.

The Court notes that the impugned statements were made in the context of an article which dealt with the forthcoming film “The Letter Bomber”, a television fiction which based its story-line on true events, namely the series of letter bombs sent in Austria between 1993 and 1997. In this film the character of the Minister for the Interior in fact interferes with the criminal investigations, namely by prohibiting the publication of a particular theory about the author of the attacks he does not favour.

The Austrian courts found that the applicants not simply reproduced the content and message of the film, but made its version their own.

The Court, having regard to the article as a whole, in particular to the words used and the manner in which the article was written, sees no reason to part from the Austrian courts' finding. It notes in this regard that the impugned article, in its heading, stated that film was bearing an “explosive message”, which, as it later specified, was directed against the former Federal Minister for the Interior, Mr Einem. It then described the film as “very near to the truth, in particular to the political [truth]” and of “documentary quality”. The article further, explaining that in the film the Minister, in the view of forthcoming elections to Parliament, prefers to search the committer in right wing circles and refuses to publish the single author theory, emphasising that by this, as everybody in Austria knew, Mr Einem was meant.  It then referred to rumours according to which it was for this reason that the broadcasting of the film in Austria had been postponed after the elections in Vienna.

The Court notes that the assertion that Mr Einem had refused for political reasons to publish the correct profile of the author of the attacks because in view of the forthcoming elections he preferred to search in the right wing circles, is a statement of fact. Such a statement amounts to a serious accusation, namely the reproach with abuse of office and breach of professional duties, and, therefore, affected Mr Einem's professional and personal reputation.

The Court notes further that the Austrian courts found, after extensive taking of evidence, i.e. having heard the criminal psychologist, the Director General for public security and the responsible police officer at the time of the criminal investigations concerning the letter bombs,  that this accusation was factually incorrect. The Court recalls in this regard that, in principle, its task in exercising its supervisory function is not to take the place of the national authorities and, therefore, takes it for established that the statements at issue were incorrect (see mutatis mutandis Harlanova v. Latvia, cited above ) .

The Court therefore has to examine whether the applicants took sufficient steps to fulfil their obligation to verify the truth of the factual allegations in question. It finds that the allegations were serious for the person concerned and therefore required special diligence on the part of the publisher (see mutatis mutandis , Prager and Oberschlick , judgment of 26 April 1995, Series A no. 313, p. 18-19, § 37)

In this regard the Court notes the Regional Court's finding that there was nothing to support the assumption that Mr Einem had disregarded his duty to proper and efficient clarification of the letter bomb case. In particular, Mr Einem had never prohibited the publication of the single committer profile, nor, in any other form, influenced or hindered the investigations. This was confirmed by the Court of Appeal and throughout the proceedings the applicants gave no reasons or arguments for their accusations.

The Court observes further that Mr Einem, who, at the time the article was published, had already resigned from his function as Minister for the Interior more than four years ago, had never officially been accused of political motivated hindrance of publication of the single author profile.

In the light of the above, the Court is satisfied that, in finding that the interest in protecting Mr Einem's reputation outweighed the applicants' freedom of expression, the Austrian courts decisions were based on reasons which could reasonable be regarded as relevant and sufficient. It concludes that the interference with the applicants' freedom of expression was not disproportionate to the aim of protecting the reputation or rights of others, within the meaning of para. 2 of Article 10 of the Convention.

It follows that the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Peer Lorenzen     Registrar President