THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34994/97 by Ernst G. WALTER against Austria

The European Court of Human Rights, sitting on 9 October 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides ,

Mr P. Kūris , Sir Nicolas Bratza , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. D ollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 7 April 1996 and registered on 19 February 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 partial decision of 27 April 2000,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Ernst G. Walter, is a Austrian national , born in 1947 and living in Vienna. The respondent Government are represented by Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A. The circumstances of the case

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

On 12 June 1997 the Vienna Regional Criminal Court convicted the applicant, who had been the manager of a company working in the field of financial consultancy , of thirty-eight counts of aggravated fraud and sentenced him to six years’ imprisonment. It found that he had in September and October 1983 carried out manipulated transactions with securities to the detriment of the Luxembourg B. Bank.

On 7 July 1997 the weekly magazine “ Profil ” published an article about the applicant and the criminal proceedings against him.

On 9 July 1997 the applicant sent a request for a publication of a reply ( Gegendarstellung ) to that article to its author at the address of the editorial office of “ Profil ”. The main thrust of the text which the applicant wanted published was that the article had wrongly described his role in the transactions with the Luxembourg B. Bank.

On 8 August 1997 the Vienna Regional Criminal Court received an application by the applicant based on section 14 of the Media Act ( Mediengesetz ), in which he requested the court to order the publication of a reply, as well as a request for legal aid.

On 29 August 1997 the Vienna Regional Criminal Court, having rejected the applicant’s request for legal aid, rejected the applicant’s application concerning the publication of a reply on the ground that the applicant had addressed it to the journalist who had written the article instead of the publisher ( Medieninhaber ) as required by the Media Act. On 3 September 1997 this decision was served on the applicant, who was at that time detained at the Vienna Regional Criminal Court’s prison. His appeal was to no avail.

On 3 September 1997, the applicant wrote another request for the publication of a reply, this time addressed to the publisher, which has its seat in Vienna.

He gave it to the prison administration on 4 September 1997. It was entered in the prison mail-book on that date with a note “matter subject to a time limit” ( Fristsache ).

The exact time when the request was handed over to the prison administration is in dispute between the parties. The applicant submits that he did so at 7 a.m. He refers to section 5 of the internal prison rules ( Hausordnung ) according to which mail has to be handed over at 7 a.m. The Government submit that the letter was only handed over to the prison administration in the late afternoon of 4 September 1997. They submit that this information is based on an oral inquiry which was made in the context of the preparation of the Government’s observations.

The letter was posted on 9 September 1997 and reached the publisher on 10 September 1997. Failing compliance by the publisher, the applicant again made an application to the Vienna Regional C riminal Court requesting it to order the publication of the reply pursuant to section 14 of the Media Act.

On 13 November 1997 the Vienna Regional Criminal Court held a hearing with the applicant and a representative of the publisher as respondent. The applicant’s request and the publisher’s comments in reply were read out. The applicant pointed out that he had dispatched his request in time, namely on 4 September 1997 at 7 a.m. At the close of the hearing the court dismissed the applicant’s request for publication of a reply. It noted that, pursuant to section 11 of the Media Act, the publisher was not obliged to publish a reply if he received the request later than two months after the contested article had been published. In the applicant’s case the article to which he wished to reply had been published on 7 July 1997. The time-limit thus expired on 7 September 1997. As the applicant’s request had only been posted on 9 September 1997 and had reached the publisher on 10 September 1997, it was clearly out of time. The fact that the applicant was detained could not prolong the time-limit.

On 16 March 1998 the Vienna Court of Appeal dismissed the applicant’s appeal. It found in particular that the fact that it might take longer to post a letter for a detainee could not prolong the statutory time-limit laid down in the Media Act to the disadvantage of the media owner.

B. Relevant domestic law

1. Media Act

Section 9 of the Media Act provides in essence that any person directly affected by the reporting of facts in a periodical has a right to the publication of a reply in that medium, free of charge, unless the reply is itself untrue or the publication is excluded on other grounds (paragraph 1). A reply only lies as regards the reporting of facts, the truth and completeness of which are susceptible to proof (paragraph 2). The reply has to indicate briefly which facts are untrue or incomplete and has to mention the facts from which this follows (paragraph 3).

Pursuant to section 11 § 1 (10) there is no obligation to publish a reply unless the request for publication of a reply reaches the publisher within two months from the date on which the facts at issue were published.

According to section 12 § 1, the request for publication must be addressed in writing to the publisher or to the editorial office of the media enterprise.

Section 14 § 1 provides that, in case the publisher fails to publish the reply or does not properly publish it, the person concerned may, within six weeks, file an application to the court against the publisher as respondent for an order requiring publication of the reply.

2. Internal Prison Rules

Section 5 deals with the routine for working days. It provides that at 7 a.m. breakfast is distributed and at the same time letters or any other submissions and requests can be handed over.

Section 9 deals with inmates’ correspondence. It states that any correspondence has to be sent or received through the prison administration.

COMPLAINTS

1. The applicant complains that the proceedings for the publication of a reply were unfair as he was prevented from posting his request in time by a slow prison administration. He invokes Article 6 § 1 of the Convention.

2. In his observations of 28 September 2000 he also complains under Article 10 that thereby his right to impart information was violated.

THE LAW

1. The applicant complains about hindrance to bring proceedings for the publication of a reply in time to an article which appeared about him in a weekly periodical. He relies on Article 6 § 1 of the Convention which, so far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a  ... hearing ... by [a] ... tribunal...”

The Government, referring to the Court’s case-law, accept that the civil head of Article 6 § 1 applies to the proceedings at issue.

The Government contend that the applicant did actually have access to court as his application of 8 August 1997 was dismissed by the Vienna Regional Criminal Court on 29 August 1997 on the ground that it had not been addressed to the publisher as required by section 12 of the Media Act. Had it not been for the speedy reaction of that court, he would not have had a second chance to draft a properly addressed request for publication.

Further the Government assert that the time-limit at issue is one of substantive law. As the applicant’s right expired on 7 September 1997, and since he failed to request the publication of a reply in due and proper form within the time-limit laid down in section 11 § 1 (10) of the Media Act, no issue of access to court arises. In fact, the applicant had access to court because the Vienna Regional Criminal Court in its decision of 13 November 1997 did not reject his request as being inadmissible but dismissed it for the lack of a right.

In any case, the Government contend that the failure to comply with the time-limit is not attributable to the Austrian authorities as it would have been missed even if the request had been posted without any delay. In this respect, the Government point out that the end of the time-limit, namely 7 September 1997, fell on a Sunday. According to their information, it was not before the late afternoon of Thursday 4 September that the applicant handed over his request to the prison authorities. As there is no delivery of normal mail on Saturdays and Sundays, it had to reach the publisher on Friday 5 September at the latest. It could have been posted at the earliest in the evening of 4 September. However, letters posted outside the normal business hours of the postal service cannot be delivered the next day but only on the day after that. Thus, even in case of immediate dispatch, the request for publication of a reply would not have reached the publisher before Monday 8 September 1997, i.e. belatedly.

As to the applicant’s claim that he gave the request to the prison authorities on 4 September at 7 a.m. in accordance with the internal prison rules, the Government reply that their is nothing in the prison rules to prevent an inmate from handing over urgent mail at any time during the day. In any case, the applicant did not indicate that his letter had to be delivered to the publishing company by a certain date.

Finally, the Government submit that in any case the applicant’s request for publication was not in conformity with the requirements of section 9 §§ 2 and 3 of the Media Act and would, therefore, have been dismissed.

The applicant maintains that, not being legally represented in the proceedings, he did not learn any earlier than 3 September 1997, when the Regional Court’s decision of 29 August 1997 was served on him, that the request for publication of a reply had to be addressed to the publisher. He immediately drafted a properly addressed request and, in accordance with section 5 of the Prison Rules, handed it over to the prison administration at 7 a.m. on Thursday 4 September 1997, indicating that there was a time-limit to be met. Thus, had the letter been posted during the day, even as normal mail, it would have reached the publisher on Friday 5 September, since it takes only a day to deliver mail within Vienna, as is demonstrated by the fact that the letter when it was finally posted on 9 September reached the publisher on 10 September.

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

2. The applicant also complains under Article 10 that his right to impart information was violated.

The Court recalls that pursuant to Article 35 § 1 of the Convention it “may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

It does not appear that the applicant has raised in the domestic proceedings, at least in substance, the complaint he now wants to bring before the Court. In any case, even assuming exhaustion of domestic remedies, the applicant did not lodge this complaint with the Court until 28 September 2000 in his observations, that is more than six months after the final decision in the proceedings at issue on 18 March 1998.

It follows that the applicant has failed to comply with the requirements of Article 35 § 1 of the Convention and that, thus, this part of the application has to be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint that he was prevented by a slow prison administration from posting his request for a publication of a reply in time;

Declares inadmissible the remainder of the application.

S. D ollé J.-P. Costa Registrar President