THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34320/96 by DIE FREIHEITLICHEN LANDESGRUPPE BURGENLAND against Austria

The European Court of Human Rights (Third Section), sitting on 25 September 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr P. KÅ«ris , Mrs F. Tulkens , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 13 September 1996 and registered on 19 December 1996,

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 observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant is the Burgenland regional branch ( Landesgruppe Burgendland ) of the Freiheitlichen Partei Österreichs (FPÖ). Its chairman is Mr W. Rauter. It was initially represented before the Court by Mr M. Machold, a lawyer practising in Vienna, and is now represented by Ms H. Gheneff-Fürst , 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.

The applicant publishes a periodical, “The Burgenland News” ( Burgenländische Nachrichten ). In its issue no. 11/1995 the applicant published, on page 7, an article entitled “Alone against the party-mafia” ( Alleine gegen die Parteimafia ). This article described the political discussions in the Burgenland between the applicant and two other parties - the Austrian Social-democratic Party ( Sozialdemokratische Partei Österreichs - SPÖ) and the Austrian Peoples’ Party ( Österreichische Volkspartei - ÖVP). It mentioned that Mr Rauter had been the victim of attacks launched by Mr Kaplan and Mr Rezar, chairmen of the regional party branch of the ÖVP and SPÖ respectively, who sought to find irregularities in Mr Rauter’s political and private life. Further, it was stated that Mr Rauter had given a press conference and had successfully defended his integrity. On page 8 of the periodical the applicant party published a caricature showing two pigs rubbing themselves against the trunk of a tree. The text beneath read as follows:

“Wolfgang Rauter on the unfair attacks by Rezar, Kaplan and Co: how does it bother an oak tree if pigs rub themselves against it?”

On 23 June 1995 Mr Kaplan, in a private prosecution, filed an action for insult under Section 115 of the Criminal Code against Mr Rauter and the applicant, requesting the conviction of Mr Rauter and an award of damages. The action was filed with the competent Eisenstadt Regional Court ( Landesgericht ). As all the judges of that court declared themselves biased because Mr Rauter had been their colleague for many years, the proceedings were transferred to the Vienna Regional Criminal Court.

On 16 November 1995 the Vienna Regional Criminal Court acquitted M. Rauter and dismissed the request for damages. It found that the drawing was easily recognisable as a caricature and that the text was in fact a popular proverb which made reference to an oak tree which stands for integrity, the two pigs symbolising, in the present context, the constant rooting for irregularities and insinuations. The caricature was a humoristic reappraisal of the political debate referred to in the article published on page 7 of the same issue of the periodical. In the court’s view a reader of the periodical could not find that Mr Kaplan was insulted by being referred to as a pig.

On 3 January 1996 Mr Kaplan appealed. On 23 January 1996 Mr Rauter and the applicant filed comments on the appeal, invoking Article 10 of the Convention.

On 13 March 1996 the Vienna Court of Appeal ( Oberlandesgericht ) upheld the acquittal of Mr Rauter. However, it ordered the applicant to pay non-pecuniary damages in the amount of 20,000 ATS as the publication of the caricature, together with the accompanying text, constituted, viewed objectively, an insult under Section 115 of the Criminal Code. In the Court of Appeal’s view, Mr Kaplan had been referred to as a pig, an animal which the average reader would consider dirty. This reference showed serious disrespect for the person concerned, particularly when juxtaposed with an oak tree, which is regarded as a noble species.

B. Relevant domestic law

Section 115 of the Criminal Code, in so far as relevant, reads as follows:

“1. Anyone who, in public or in the presence of several others, insults, mocks, mistreats or threatens to mistreat a third person, shall be liable to imprisonment not exceeding three months or a fine ... unless he is liable to a more severe penalty under another provision. ... .”

If a publication in the media, viewed objectively, constitutes, inter alia , an insult under Section 115 of the Criminal Code, the insulted person may claim non-pecuniary damages against the media owner, pursuant to Section 6 § 1 of the Media Act. In case of insult, the amount of damages payable cannot exceed 200,000 ATS. In fixing the amount to be awarded, the competent court has to give particular consideration to the effects of the insulting publication and the economic situation of the media company.

COMPLAINT

The applicant complains under Article 10 of the Convention that the decision awarding Mr Kaplan non-pecuniary damages in the proceedings at issue violated its right to freedom of expression.

THE LAW

The applicant complains under Article 10 of the Convention that the decision granting Mr. Kaplan non pecuniary damages violated its right to freedom of expression.

The relevant part of Article 10 of the Convention 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....

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 award of damages against the applicant company interfered with its right to freedom of expression. However, the measure at issue was justified under paragraph 2 of Article 10 as it was “prescribed by law”, namely Section 115 of the Penal Code and Section 6 of the Media Act, and pursued the legitimate aim of protecting the rights and reputation of others. Fu rthermore, it was necessary in a democratic society in the interests of that aim. The measure taken by the Austrian courts had the aim of protecting a politician from a party opposed to the applicant party against an insulting and wanton personal attack on his reputation. The comparison of political opponents to swine expressed a degree of contempt for other human beings which must be countered, at least by moderate restrictions, in order to maintain a civilised level of democratic debate. There can be no doubt that one of the tasks of a democratic society is to take appropriate action to curb the expression of views which are inhuman, xenophobic or anti-Semitic.

The Government submit further that the Austrian courts showed moderation in interfering with the applicant’s rights by requiring the latter to pay ATS 20,000 by way of damages to the person attacked. This amount is small in relation to the applicant’s material assets, but yet makes it clear to the public that insults against political opponents are not countenanced.

This is disputed by the applicant.

The Court considers, in the light of the parties’ submissions, that the applicants’ co m plaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, ther e fore, that 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.

For these reasons, the Court unanimously

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

S. Dollé J.-P. Costa Registrar President