THIRD SECTION

FINAL DECISION

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

The European Court of Human Rights (Third Section), sitting on 23 October 2003 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , 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 regard to the partial decision of 16 January 2003,

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 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.

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

The applicant company 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 ). 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”; “The Demonstration: Who opposes him”; “How he further tries to set fire”.

On 12 November 1999 Mr Haider brought compensation proceedings against the applicant company claiming compensation under the Media Act ( Mediengesetz ) for defamation. He argued that the photomontage, picturing him as devil, constituted offences under the Criminal Code.

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 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 and reduced the fine to ATS 80,000.

COMPLAINT

The applicant company complained under Article 10 of the Convention that the Austrian courts’ decisions violated its right to freedom of expression.

THE LAW

On 8 September 2003 the applicant company informed the Court that it wished to withdraw its application.

The Court, therefore, notes that the applicant does not intend to pursue his application within the meaning of Article 37 of the Convention, which so far as material, reads as follows:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application; ..

...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court considers that respect for human rights as defined in the Convention and its Protocols does not require to continue the examination of the case. It, therefore, decides to strike the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Vincent Berger Georg Ress Registrar President