THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 65924/01 by FREIHEITLICHE PARTEI ÖSTERREICHS, LANDESGRUPPE NIEDERÖSTERREICH against Austria

The European Court of Human Rights (Third Section), sitting on 9 October 2003 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , Mrs E. Steiner, judges , and Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 10 January 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Freiheitliche Partei Österreichs, Landesgruppe Niederösterreich is the regional branch of the Austrian Freedom Party in Lower Austria. It is represented before the Court by Oberhofer, Fink & Lechner, lawyers practising in Innsbruck.

A. The circumstances of the case

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

1. Background

In December 1997 Mr H. Grabscheit, deputy mayor of Weistrach/Lower Austria and member of the Lower Austrian Regional Branch of the Austrian People’s Party ( Österreichische Volkspartei Niederösterreich ), published in the municipality’s party magazine “ Weistracher Nachrichten ”, inter alia , the following phrase:

“ They are sitting in Regional Governments where a minister really ought to work for the benefit of the Land , but instead they are sabotaging the work of the Land from within the Regional Government. (Schnell in Salzburg, Schimanek in Lower Austria).”

Subsequently, Mr Schimanek, Minister of the Lower Austria Regional Government ( Landesrat der Niederösterreichischen Landesregierung ), lodged injunction proceedings under Section 1330 of the Civil Code ( ABGB ) against Mr Grabscheit. The proceedings were settled with the following disclaimer published by Mr Grabscheit in the above party magazine:

“I wrote in the December 1997 issue of the Weistracher Nachrichten (...) that the Minister of the Freedom Party Hans Jörg Schimanek ‘would sabotage the work of the Land from within the Regional Government’. I have assured myself of the fact that that is untrue and I, thus, withdraw this reproach against Minister Schimanek with sincere regret. Furthermore, I declare not to repeat this statement.”

Thereupon, the applicant published in no. 505/98 of its municipal party magazine the following article:

“How credible is Deputy Mayor Herwig Grabscheit?

A whole page of negative stories was published by federal, regional and municipal authorities ( Bund, Land und Gemeinde ) about Freedom Party deputies. One Minister of the Freedom Party was reproached of ‘sabotaging the work of the Regional Government’.

It must be embarrassing for a Deputy Mayor to admit to the population: ‘I have assured myself of the fact that that is untrue and I withdraw this reproach against Minister Schimanek with sincere regret.’

There’s a saying that crosses my mind: ‘If you are caught lying once, you are never believed even when telling the truth’ (‘Wer einmal lügt, dem glaubt man nicht und wenn er auch die Wahrheit spricht’). ”

2. Compensation proceedings under the Media Act

On 22 February 1999 Mr Grabscheit filed a compensation claim under Section 6 of the Media Act against the applicant.

On 15 November 1999 the St. Pölten Regional Court, after having held a hearing, at which the claimant and the applicant’s lawyer were present, ordered the applicant to pay ATS 10,000 (EUR 726) as compensation to the claimant and to publish the sentence. It noted in particular that the reproach against the claimant of having lied constituted defamation as it could not be established from his disclaimer that he had deliberately told the untruth when making the statement about the “sabotage” in the Regional Government. Further, the implied suggestion to the reader not to believe him in the future was capable to lower him in the public esteem. Though politicians had to display a higher degree of tolerance against criticism than private individuals, the reproach in the present case aimed at ridiculing and mocking the claimant, which exceeded the degree of lawful criticism against a politician.

On 31 March 2000 the applicant appealed against this sentence, complaining in particular that the court had failed to consider the above article in the light of the political criticism lodged by the claimant against Mr Schimanek. Therefore the article at issue constituted political criticism, lawful within the meaning of Article 10 of the Convention.

On 19 June 2000 the Vienna Court of Appeal, after having held a hearing, attended by the claimant and the applicant’s lawyer, dismissed the applicant’s appeal and confirmed the Regional Court’s sentence. The court found that withdrawing criticism against a political opponent did not constitute a sufficient factual basis for a reproach against a municipal politician of having deliberately told the untruth. In the present case the claimant, a deputy mayor who was not in the very centre of the public eye, had in the court’s view, “quasi” apologised to Minister Schimanek, which did not therefore raise the limits of lawful criticism. Furthermore, the claimant had stated in the proceedings that he had made his disclaimer in the Weistracher Nachrichten on strategic procedural grounds and because he had obtained the minutes of a meeting where the Lower Austrian Regional Governor, Mr Pröll, had acknowledged good co-operation within the Regional Government. Thus, it could not be established that the applicant had proved the truth of its allegations.

B. Relevant domestic law

Section 6 § 1 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. 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 makes an accusation against 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 applicant complained under Article 10 of the Convention that the Austrian courts’ order to pay compensation to the claimant violated its right to freedom of expression.

The applicant further complained under Article 6 of the Convention about the alleged unfairness of the proceedings, in particular that the Austrian courts failed to consider the applicant’s statement in its political context. The applicant also complained under Article 6 that no representative of the applicant was heard throughout the proceedings.

THE LAW

1. The applicant alleged that the Austrian courts’ order to pay compensation violated its right to freedom of expression under Article 10 of the Convention , which, as far as relevant, 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, ... for the protection of the reputation or rights of others, (...)”

The Court considers that the domestic courts’ order in the present case to pay compensation and to publish the judgment constituted an interference with the applicant’s right to freedom of expression under Article 10 of the Convention.

The Court also finds that the order was prescribed by law, namely by Section 6 of the Media Act, read in conjunction with Section 111 §§ 1 and 2 of the Penal Code (see mutatis mutandis , Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313 , p. 16, § 30) and served the protection of the reputation or rights of others, in accordance with Article 10 § 2 of the Convention.

As regards the necessity test, the Court reiterates the basic principles concerning Article 10 as laid down in its case-law (see for instance, Wille v. Liechtenstein , judgment of 18 October 1999, Reports of Judgments and Decisions 1999-VII, p. 301, § 61):

(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted, and the necessity for any restrictions must be convincingly established.

(ii) The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.

(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts.

(iv) The Court further recalls that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or debates on questions of public interest (see Sürek v. Turkey (No. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). Moreover, the limits of acceptable criticism are wider with regard to a politician acting in his public capacity than in relation to a private individual, as the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance. A politician is certainly entitled to have his reputation protected, even when he is not acting in his private capacity, but the requirements of that protection have to be weighed against the interests of the open discussion of political issues (see Lingens v. Austria, judgment of 8 June 1986, Series A no. 103, p. 26, § 42; Oberschlick v. Austria , judgment of 23 May 1991, Series A no. 204, p. 26, § 59).

The Court notes that the assessment whether a certain statement constitutes a value judgment or a statement of facts might in many cases be difficult. However, since under the Court’s case-law a value judgment must be based on sufficient facts in order to constitute a fair comment concerning a matter of public interest under Article 10 (see De Haes and Gijsels v. Belgium , 24 February 1997, Reports 1997-I, p. 236, § 47; Jerusalem v. Austria , no. 26958/95, § 43, ECHR 2001-II), their difference finally lies in the degree of factual proof, which has to be established (see Krone Verlag GmbH & CoKG and Mediaprint Zeitschriften Verlag GmbH & CoKG v. Austria (dec.), no. 42429/98, 20 March 2003, unreported).

Turning to the circumstances of the present case, the Court considers that the statement at issue was made in the context of a political discourse involving political opponents where a withdrawal of a previous statement had also been made. The Austrian courts, when balancing the conflicting interests, i.e. the applicant’s right to freedom of expression on the one hand, and the claimant’s right to protection of his reputation on the other, found in favour of the claimant. The courts pointed out in particular that it was not established that the claimant had deliberately told the untruth when making his statement in the municipal magazine in December 1997. Therefore the courts concluded that the applicant’s statement, suggesting not to believe the claimant as he had lied on that occasion, was defamatory and not supported by the facts of the present case.

The Court finds that the domestic courts gave relevant and sufficient reasons for their judgments. Considering further that the applicant published the statement at issue after the injunction proceedings involving Minister Schimanek and the claimant of the present proceedings had been settled by the disclaimer of the latter, the Court observes that the applicant could have formulated its criticism on that issue by using less harmful or defamatory terms. Therefore the applicant’s statement cannot be regarded as a fair comment for the purposes of Article 10. In the circumstances of the case, the Court finds that the interference, namely the imposition of EUR 726 and the order to publish the judgment, was of a minor character and did not appear disproportionate either.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.(a) As far as the applicant complained about the alleged unfairness of the proceedings under Article 6 of the Convention in that the courts failed to consider the statement at issue in its political context, the Court, having regard to its above findings under Article 10 of the Convention, considers it not necessary to examine this complaint.

(b) As to the applicant’s further complaint under Article 6 that no representative of the Freedom Party was heard in the proceedings, the Court notes that the applicant, assisted by counsel who also attended the hearings before the Regional Court and the Court of Appeal, had made no request to this effect.

It follows that the remainder of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Mark Villiger Georg Ress              Deputy Registrar President