FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39394/98 by Hans-Henning SCHARSACH and NEWS Verlagsgesellschaft m.b.H. against Austria

The European Court of Human Rights (First Section) , sitting on 28 November 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mr F. Tulkens , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , judges , Mr F. Matscher , ad hoc judge, and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 24 October 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Court’s partial decision of 19 September 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, an Austrian national, born in 1943 and living in Vienna, is a journalist by profession. The second applicant, the applicant company, is the owner and publisher of the Austrian weekly magazine News . They are represented before the Court by Mr G. Lansky, a lawyer practising in Vienna.

A. The circumstances of the case

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

In 1995 the first applicant published an article under the heading “Brown instead of Black and Red?” ( “Braun statt Schwarz und Rot?” ) in the magazine News of the applicant company on the question whether it was possible and desirable to form a coalition government with the Austrian Freedom Party ( FPÖ ) under Jörg Haider. In one paragraph, subtitled “Violent scene” ( Gewaltszene ), he pointed out that some Austrian right ‑ wing terrorists or extremists had emerged from this party, which they had left in the early 1980s when the party supported more moderate positions under the chairmanship of Mr Steger. “Under Haider (in the late 1980s) these “old closet nazis” (“ alte Kellernazis ”) came back again and were even allowed to run for office.” Then he cited a list of names, amongst them Ms R., a member of a Regional Parliament ( Landtag ), whose husband is a well known right wing politician and the editor of the extreme right magazine “facts” ( fakten ). “... Ms R., ... and other names prove that the dissociation from the extreme right ( Abgrenzung ) alleged by Mr Haider had in reality never taken place.”

Subsequently, Ms R. instituted private prosecution proceedings for defamation ( üble Nachrede ) against the first applicant, and a compensation claim against the applicant company under the Media Act ( Mediengesetz ), before the St. Pölten Regional Court ( Landesgericht ).

On 21 June 1998 the first applicant was convicted of defamation under section 111 of the Criminal Code ( Strafgesetzbuch ). The court imposed a fine of ATS 60,000 on him. The applicant company was ordered to pay ATS 30,000 in compensation to Ms R., pursuant to section 6 of the Media Act. The court noted in its reasoning that the passage at issue was to be understood the way it would be perceived by an average reader. The term “closet nazi” was used to describe a person who supported National Socialist ideas, however, not in public but in private through clandestine activities. Belonging to such a circle of persons means to have a contemptible character and to behave in a way contrary to honour or morality. According to the court, it could not be established that Ms R. was a co-author of her husband’s magazine. Even assuming that she had contributed to certain passages of some of the articles published in it, as contended by the applicants, these were unproblematic in the light of the Prohibition Act ( Verbotsgesetz 1947 ). As regards Ms R.’s statement that she did not find her husband’s activities immoral, the court noted that Mr R. had so far not been convicted for breach of the Prohibition Act. Ms R., on the other hand, had not expressed that she supported her husband’s activities or identified herself with them either. Moreover, a wife could not be expected to criticise her husband in public. Although she had criticised the Prohibition Act in public statements, the court found that the applicants had failed to provide evidence of any clandestine National Socialist activities undertaken by Ms R. that would justify to call her a “closet nazi”.

In their appeal the applicants emphasised that the term “closet nazi” had been created by Mr Steger, the then chairman of the FPÖ. It was meant to describe those of his party colleagues who officially demonstrated support to democracy, but unofficially or in clandestine did not disassociate themselves from neo-Nazi ideas or from contacts to the neo-Nazi scene. Therefore their relation with the extreme right appeared to be unclear. The applicants criticised that the court had in fact failed to conclude that Ms R. had contributed to the editing of her husband’s xenophobic magazine. They argued that Ms R., as a politician, exposed herself to public scrutiny and advocated views of a political nature. As a politician, it was part of her functions to participate in political debate. Therefore, in the light of the freedom of expression and information of citizens and the electorate, it was legitimate to expect her to take a stand also in regard to her husband’s political activities. Taking sides with her husband might dignify her as a wife, however, as a politician, she had to bear criticism under such circumstances insofar as her failure to disassociate herself from the extreme right could be perceived as an approval of her husband’s political activities. Had the court correctly assessed the meaning of the incriminated passage, it would have concluded that the applicants had furnished proof of its factual basis.

On 3 March 1997 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the appeal and confirmed the lower court’s judgment. It considered that the Regional Court had correctly found that the term at issue was to be assessed from the point of view of an average reader who could not be expected to know the original meaning created by Mr Steger. Therefore the article insinuated clandestine neo-Nazi activities by Ms R. which were not proved. Consequently, it was unnecessary to take evidence relating to possible extreme right activities of her husband as proposed by the applicants. Moreover, the first instance court had correctly found that neither Ms R.’s public speeches when compared to certain passages of articles in her husband’s magazine, nor her statement that she did not find immoral her husband’s activities allowed to draw the conclusion that Ms R. supported National Socialist ideas. Therefore the applicants’ proposal to hear and assess evidence that Ms R. knew the contents of her husband’s magazine and that she in fact contributed from time to time to its editing was not sufficient to furnish proof of her clandestine support for National Socialist ideas.

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. Compensation can be awarded up to EUR 14,535. In this context “defamation” is defined in Section 111 of the Criminal Code 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."

COMPLAINT

The applicants complained under Article 10 of the Convention that the courts’ decisions violated their right to freedom of expression.

THE LAW

The applicants’ remaining complaint relates to their conviction for defamation and under the Media Act, respectively, which allegedly was in breach of their rights under Article 10, which 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 accept that the domestic courts’ judgments constituted an interference with the applicants’ rights to freedom of expression and to impart information under Article 10. They contend, however, that the interference was justified under Article 10 § 2. They submit that the Austrian courts classified the term “closet nazi” in respect of Ms R. as a statement of fact for which the applicants had failed to furnish proof. Referring to the case Prager and Oberschlick v. Austria (judgment of 26 April 1995, Series A no. 313, p. 18, § 36), the Government argue that the classification whether there was a statement of facts or a value statement falls within the national authorities’ margin of appreciation. The allegation against a person of having an unclear affiliation with National Socialism means a massive reproach in Austria that comes close to a charge of criminal behaviour under the Prohibition Act, which prohibits National Socialist activities in various forms and provides for severe terms of imprisonment. Compared to those terms of imprisonment the applicants’ convictions were within the lowest range of possible punishment, the interference with Article 10 was therefore not disproportionate.

The applicants contest the Government’s view and maintain that the courts had wrongly classified the term at issue as a statement of fact instead of a value statement, which, at all events, was based on true facts: Ms R. was a member of the FPÖ; through her husband she was in direct contact with neo-Nazis; she had occasionally helped in the correction of orthographic and grammatical mistakes in an extreme right magazine and - despite Mr Haider’s announcements and proclamations on that issue - she had not clearly and publicly disassociated herself from National Socialist ideas. The meaning of the term at issue was clear for an average reader of the magazine as Ms R.’s name was quoted in the context of criticism for lack of dissociation from right-wing extremists within the FPÖ. The first applicant’s obvious intention has never been to defame Ms R. or to affiliate her with a criminal charge, but to criticise her position within the FPÖ and her lack of public dissociation from neo-Nazi ideas. Therefore the statement was in no way excessive and Ms R., as a politician and member of a Regional Parliament, had to bear the criticism contained therein.

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 by a majority

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

Søren Nielsen Christos Rozakis              Deputy Registrar President