FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46389/99 by  ALBERT-ENGELMANN-GESELLSCHAFT MBH against Austria

The European Court of Human Rights (First Section), sitting on 15 September 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner, judges ,

and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 25 November 1998,

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 company is the owner and publisher of the magazine “ Der 13. – Zeitung der Katholiken für Glaube und Kirche ” (The 13 th – Newspaper of Catholics for Faith and Church). It is represented before the Court by Mr M. Metzler, a lawyer practising in Linz.

A. The circumstances of the case

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

1. Background

On 13 November 1996 the magazine “ Der 13.” published on page 25 six letters to the editor dealing with the discussion on a “Church Referendum Movement” (“ Kirchenvolksbegehren ”) organised by Catholics to promote “progressive” ideas and to strengthen lay influence within the Catholic Church in Austria. One of these letters at issue in the present case reflected a conservative position towards the Church Referendum Movement and criticised Mr Paarhammer , at the material time Vicar General ( Generalvikar ) of the Archdiocese of Salzburg, member of the Salzburg Cathedral Chapter ( Domkapitel ) and Professor of Canon Law at the Salzburg University, for his behaviour during the election process for the new Salzburg Archbishop in 1988/89.

The letter’s layout could be distinguished from the remainder of the page in that its text was framed and headed with: “ Priests loyal to the Pope should be appointed to influential positions ” and read as follows:

The Diocesan Forum in Salzburg came to a close on 24 September, the feast day of St Rupert, the patron saint of our diocese and our province.

It is thanks to the prudent leadership, tactical skill and resolute attitude of Suffragan Bishop Laun that the pernicious ideas of the Church Referendum Movement did not find their way into the resolutions adopted at the Diocesan Forum.

For that, our esteemed suffragan bishop deserves our warmest thanks and congratulations.

What will happen now? Will the resolutions be put into effect or will they remain a dead letter?

When will the rebels in the cathedral chapter strike their next blow against Laun ?

Paarhammer did not even shrink from publicly criticising and disparaging the Pope in an extremely offensive manner, while Sieberer insulted Laun as soon as he was appointed.

Those who say that the renewal of the Church in Salzburg cannot be effected without changes in its clergy will probably prove right.

With the Diocesan Forum over, the time has come for priests who are critical of the Church to be swiftly removed from all influential positions and for priests who are truly loyal to Pope and Church to be appointed in their place.

That step is bound to be painful for the diocese to begin with, but it will undoubtedly be worthwhile in the long run.

We hope that the bishops have the courage to take it.

Initiative to Restore the Unity of the Church in Salzburg, A-5020 Salzburg ( Initiative zur Wiederherstellung der Einheit der Kirche in Salzburg )

The letter was anonymous as the “Initiative” turned out to be non-existent.

The allegations concerning Mr Paarhammer related to a press release by the Cathedral Chapter of 30 December 1988 stating, inter alia , that the Holy See’s choice of candidates for the Salzburg archbishop had put the Cathedral Chapter in a situation of moral conflict. Further reference could be made to a radio interview on 10 January 1989, in which Mr Paarhammer , as speaker of the Cathedral Chapter, had expressed discontent about the way the Holy See had dealt with the succession of the Salzburg archbishop and that the Cathedral Chapter, asking to discuss the list of candidates proposed by the Holy See, had not been received in audience by the Pope.

2. Compensation proceedings

In March 1997 Mr Paarhammer sought compensation for defamation from the applicant company under Section 6 of the Media Act ( Mediengesetz ).

On 11 November 1997 the Salzburg Regional Court ( Landesgericht ), after having taken evidence of the records of the above statements made by Mr Paarhammer during the election process of 1988/89, awarded him ATS 30,000 (EUR 2,180) in compensation under Section 6 of the Media Act. The court found that the following passages were defaming him under Section 111 §§ 1 and 2 of the Penal Code:

a) “When will the rebels in the cathedral chapter strike their next blow against Laun ?”, suggesting that Mr P. was one of these rebels;

b) “ Paarhammer did not even shrink from publicly criticising and disparaging the Pope in an extremely offensive manner” and

c) “ ... the time has come for priests who are critical of the Church to be swiftly removed from all influential positions and for priests who are truly loyal to Pope and Church to be appointed in their place”.

It held that an average reader of “ Der 13.” , whose recipients were particularly interested in and sensitive to intra-church-related matters, would not expect a high-ranking church official offensively to criticise and disparage the Pope, and would therefore consider a person doing so to be affected by a serious lack of character ( erheblicher Charaktermangel ). The same considerations applied to the two other statements in the letter calling Mr Paarhammer a “rebel” and a “critic of the church who should be removed”. It noted in particular that Mr Paarhammer had criticised the Holy See for its refusal to receive the Cathedral Chapter in audience in the radio interview of 10 January 1989. Thus, this criticism related to concrete behaviour and was not questioning the authority of the highest church officials as such. As regards Mr Paarhammer’s statements concerning the succession of the Salzburg archbishop, the court found that criticising the Pope for his decisions on personnel-policy matters was lawful also under the Canon Law, as the doctrine of papal infallibility only applied to matters of belief and morals. Furthermore, the applicant company could not rely on any of the exemptions from liability under Section 6 § 2 lit. 2 (a), (b) or lit. 4 of the Media Act, as the allegations were neither true, nor was their publication in preponderant public interest eight years after the election of the Salzburg archbishop in 1989. The applicant company had also failed to comply with the ethics of journalism, as it had not given Mr Paarhammer an opportunity to comment. Finally, the letter at issue did not constitute a correct statement of a third person (Section 6 § 2 lit. 4 of the Media Act), since the signed “Initiative” was non-existent as a legal person and not represented by any natural person.

On 28 May 1998 the Linz Court of Appeal ( Oberlandesgericht ), upon the applicant company’s appeal, confirmed the Regional Court’s decision. The court considered that the applicant company could not claim to have uttered permissible criticism under Article 10 § 1 of the Convention, since the imputation of dishonourable behaviour without reference to facts was not justified criticism. Therefore, it fell outside the scope of protection of Article 10 of the Convention. The court found that the applicant company had failed to produce factual evidence that would have supported the incriminated statements. In particular, Mr Paarhammer’s critical remarks during the election process of 1988/89 could not be described as “publicly criticising or disparaging the Pope in an extremely offensive manner”. Considering the high positions he held as Vicar General, entitling him to represent the archbishop, and also as Judicial Vicar ( Judizialvikar ), any such behaviour as alleged in the incriminated passages would not only be incompatible with the requirement of orthodoxy under the Codex Iuris Canonici 1983, but also with the profile of a high-ranking church official as expected by the clergy and the interested catholic public. Were any of these allegations true, Mr Paarhammer would not only risk being recalled from his position as Vicar General but also losing his missio canonica at the university. The allegation of a “rebel within the Cathedral Chapter” meant in its context that Mr Paarhammer rebelled against the church order – which he ought to represent himself as well – and was therefore capable to lower him in public esteem. All the more so, as the recipients of “ Der 13.” belonged traditionally to the conservative wing of the Catholic Church in Austria. The court confirmed the lower court’s finding as regards the applicant company’s failure to comply with the ethics of journalism. Finally, as the applicant company had in no way distanced itself from, but rather identified itself with its contents by adding the title and by framing the text, it could be left open whether the publication had been in the preponderant public interest within the meaning of Section 6 § 2 lit. 2 (b) and lit. 4 of the Media Act.

On 11 June 1999 the Salzburg archbishop recalled Mr Paarhammer from his function as Vicar General and, on 1 January 2001, appointed him President of the International Centre for Scientific Research ( Internationales Forschungszentrum für Grundfragen der Wissenschaften ).

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."

Section 6 § 2 of the Media Act provides for exceptions to the liability of a publisher under Section 6 § 1. Section 6 § 2 lit. 2 (a) provides that no claim for damages can be made in cases of defamation when a true statement of facts had been published, or (b), when the statement’s publication was of preponderant public interest and the publisher, having complied with the ethics of journalism, had sufficient evidence before him to consider the statement as true. Under Section 6 § 2 lit. 4 of the Media Act, no such claim could be made if the publication concerned a correct statement of a third person and receiving that information was of preponderant public interest.

COMPLAINT

The applicant complained under Article 10 of the Convention of a violation of its freedom of expression.

THE LAW

The applicant company complains under Article 10 of the Convention that its conviction violated its right to freedom of expression, 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. (...)

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 Government argued that the interference was justified under Article 10 § 2 of the Convention. It was prescribed by law, namely by Section 6 of the Media Act and Section 111 of the Penal Code. It pursued the legitimate aim of the protection of the reputation or rights of others, protecting in particular Mr Paarhammer’s reputation and the rights of the Salzburg Roman Catholic population against attacks on their religious beliefs and institutions. It was also necessary in a democratic society for the following reasons: Eight years after the election of the Salzburg archbishop there was no strong public interest in receiving the information at issue. The Government, referring to the case of Prager and Oberschlick v. Austria (judgment of 26 April 1995, Series A no. 313), argued that the margin of appreciation accorded to Contracting States was a wide one and that church-related matters were not part of a general political debate. The domestic courts had correctly found that the applicant company had not submitted facts proving the truth of the allegations at issue. It had failed to comply with the ethics of journalism, had not acted in good faith as it had not verified the origin of that document, nor had it given the person concerned an opportunity to comment. In balancing the conflicting interests, namely the applicant company’s interest in the publication of the statements in question and that of the general public in receiving this information, on the one hand, and Mr Paarhammer’s interest and that of the Catholic population in protecting the reputation of a dignitary of the Church, on the other, the Austrian courts had given priority to the interests of the latter. Since the applicant company was ordered to pay a moderate amount of approximately EUR 2,180, the interference was not disproportionate either.

The applicant company contested the Government’s view and maintained that the interference with the applicant company’s right to freedom of expression had been unnecessary in a democratic society. In particular, the Austrian courts had disregarded that the letter to the editor contained value judgments which had a sufficient factual basis: Mr Paarhammer had publicly criticised the Pope in a radio interview in 1989 and in a press release in 1988. In the applicant company’s view, church-related matters were of public interest and formed an essential part of public discussion in Austria at the material time. Further, high-ranking church officials exposed themselves to the public as politicians do and had, thus, to display a high degree of tolerance against criticism.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis              Deputy Registrar President