THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32636/96 by A.T. against Austria

The European Court of Human Rights (Third Section) , sitting on 16 January 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges ,

and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 28 May 1996 and registered on 19 August 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 and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Austrian national, born in 1970 and living in Vienna. He is represented before the Court by Mrs T. Kapsch , a lawyer practising in Graz . 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.

The applicant complains about two sets of proceedings, in which he sought compensation for statements published in the weekly “News”, in articles relating to a spectacular series of letter bombs which had been sent to politicians and other persons in the public eye in Austria. In both sets of proceedings the applicant was represented by counsel.

1. The first set of proceedings

On 3 May 1995 the applicant brought an action against the publisher of “News”. He complained that an article published on 16 February 1995 alleged that there was incriminating evidence against him, describing him as a right wing extremist being technically, organisationally and intellectually capable of organising the letter bomb terrorism. Moreover, his picture had been published. He requested compensation under the following sections of the Media Act ( Mediengesetz ): under section 6 for defamation, under section 7 for violation of his strictly private sphere, under section 7a for disclosure of his identity to the public, and under section 7b for breach of the presumption of innocence. He further requested supplementary measures under the Media Act, such as the publication of the judgment.

On 20 June 1995 the St. Pölten Regional Court ( Landesgericht ) discontinued the proceedings on the ground that the applicant had no right of action and dismissed his claim accordingly. The court did not hold a hearing prior to this decision.

The court noted that the impugned article mentioned the applicant by his first name and the initial of his family name without giving further information relating to his person. The following page showed his and a second person’s picture, on which their faces had been obliterated. The image was subtitled “A. [first name in full] T. and Adolf S. hoarded Peter Binders’ secret documents ...”. The court observed that only a person whose identity had been disclosed to the public could invoke the Media Act. However, the applicant had not been mentioned by his full name. As to the picture, which showed two persons, it was impossible for the reader to identify which one was the applicant, as their faces had been obliterated. Thus, there was no disclosure of the applicant’s identity and his request had to be rejected in accordance with section 8a § 2 of the Media Act, taken together with sections 486 § 3 and 485 § 1 (7) of the Code of Criminal Procedure ( Strafprozessordnung ).

On 25 July 1995 the applicant filed an appeal. He submitted that the court had wrongly dismissed his compensation claims. In particular, as to the question whether his identity had been disclosed to the public, it had failed to take the article in its entirety into account. He maintained that he was entitled to compensation and requested the court to quash the Regional Court’s decision and to remit the case to it for the continuation of the proceedings.

On 8 January 1996 the Vienna Court of Appeal ( Oberlandesgericht ), sitting in private, dismissed the applicant’s appeal.

The court found that the Regional Court’s reasoning only had force as regards the compensation claim based on section 7a of the Media Act, as this provision dealt with disclosure of a person’s identity to the public, whereas the right of action under the other provisions relied on by the applicant depended on different conditions. The Court of Appeal went on to examine whether these conditions were met. As to section 6 of the Media Act, it found that the applicant had not denied that criminal proceedings on suspicion of intentionally causing danger by explosives were pending against him. Given this uncontested factual basis, the description of the suspicion against the applicant in specific terms did not constitute defamation. A right of action under section 7 of the Media Act was excluded in any case, as this provision protected only the strictly personal sphere. Section 7b provided for a compensation claim if someone was depicted as the perpetrator of an offence and not merely as a suspect. However, the article did not claim that the applicant had committed the letter bomb attacks; it only described him as being a suspect while drawing the reader’s attention to the criminal proceedings which were pending against him. In conclusion, the Court of Appeal found that the Regional Court had, albeit with insufficient reasoning, rightly discontinued the proceedings.

The decision was served on 25 January 1996.

2. The second set of proceedings

On 26 July 1995 the applicant brought another action against the publisher of “News”. He complained that in an article published on 22 June 1995 he had been described as a neo-nazi, and as being responsible for the letter bomb terrorism. His picture had also been published. He claimed that the article aimed at showing that he was the perpetrator of the letter bomb attacks. Again, he requested compensation under sections 6, 7, 7a and 7b of the Media Act, as well as supplementary measures such as the publication of the judgment.

On 21 August 1995 the St. Pölten Regional Court discontinued the proceedings on the ground that the applicant had no right of action and accordingly dismissed his claim. The court did not hold a hearing prior to this decision.

It noted that the impugned article mainly dealt with defects in the police investigation of the letter bomb attacks. The applicant was only mentioned once by his first name and the initial of his family name. The accompanying text stated that the right-wing extremists from Carinthia , A. [first name in full] T. and Ewald F., had either not been put under surveillance at all or only occasionally. The following page showed the applicant’s picture with a black bar over the eyes. It was subtitled “Under surveillance. Neo-nazi A. [first name in full] T. belongs to the circle of Ewald F.”

The court found that the Media Act protected a person’s name and picture, as well as other information which was likely to disclose the person’s identity to the public. In order to disclose the applicant’s identity, at least the mention of his full name, or other precise information concerning his person, would have been required. As the applicant’s identity had not been disclosed, the relevant provisions of the Media Act did not apply. Thus, the applicant’s request had to be rejected in accordance with section 8a § 2 of the Media Act, taken together with sections 486 § 3 and 485 § 1 (7) of the Code of Criminal Procedure.

On 4 September 1995 the applicant lodged an appeal. He submitted that the court had wrongly dismissed his compensation claim. He requested the Vienna Court of Appeal to quash the Regional Court’s decision and to remit the case to it for the continuation of the proceedings. Alternatively, he requested the Court of Appeal to decide on his claims.

On 19 October 1995 the Vienna Court of Appeal, sitting in private, dismissed the applicant’s appeal.

The court found that the Regional Court’s reasoning only had force as regards the compensation claim based on section 7a of the Media Act. However, the decision to discontinue the proceedings was nevertheless correct for the following reasons: As regards his compensation claim for defamation based on section 6 of the Media Act, the court, having regard to the contents of the article as a whole, found that the applicant was only described as a suspect on account of his membership of a group of right wing extremists. It was a fact that this group of persons was under suspicion and the applicant had not contested that he belonged to that group. Thus, the reference to him as a suspect, being based on uncontested facts, did not constitute defamation. Further, the description of a suspicion of a criminal offence could not be considered as a violation of the applicant’s strictly personal sphere under section 7 of the Media Act, nor did it violate the presumption of innocence giving rise to a claim under section 7b of the said Act.

The decision was served on 28 November 1995.

B. Relevant domestic law and practice

1. Compensation proceedings under the Media Act

According to the Media Act, compensation claims under sections 6, 7, 7a and 7b may either be raised in criminal proceedings against the publisher or, failing such criminal proceedings, in separate proceedings.

Section 8a § 1 of the Media Act states that, in separate compensation proceedings, the rules for criminal proceedings by way of a private prosecution apply, unless the Media Act provides otherwise.

Section 8a § 2 of the Media Act provides inter alia that a single judge has to conduct the hearing and to give judgment. The public nature of a hearing may be excluded at the claimant’s request when issues relating to his strictly personal sphere are discussed. The single judge also takes the decisions envisaged by sections 485 and 486 of the Code of Criminal Procedure ( Strafprozessordnung ), which are otherwise taken by the Review Chamber ( Ratskammer ). An appeal lies to the superior court against a decision to discontinue the proceedings.

According to section 486 § 3 in conjunction with section 458 § 1 (7) of the Code of Criminal Procedure, the Review Chamber will discontinue the proceedings if it considers that the request for prosecution has not been brought by a person entitled to do so.

2. Holding of hearings if proceedings are to be discontinued

The Media Act does not contain any explicit provision on whether or not the single judge has to hold a hearing when the proceedings are to be discontinued. However, the Review Chamber, in whose stead the single judge decides under the Media Act (see above), sits in private pursuant to section 113 § 3 of the Code of Criminal Procedure.

Again the superior court, when dealing with appeals against decisions of the Review Chamber, which under the Media Act are taken by the single judge, takes its decisions sitting in private pursuant to section 114 of the Code of Criminal Procedure.

COMPLAINT

The applicant complains in respect of both sets of proceedings that the Vienna Court of Appeal failed to hold a public hearing and gave its decision without taking evidence and hearing the parties. He invokes Article 6 § 1 of the Convention.

THE LAW

The applicant complains about the lack of a public hearing in two sets of proceedings under the Media Act. 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 fair and public hearing ... by [a] ... tribunal...”

The Government, while accepting that the civil head of Article 6 § 1 applies to the present proceedings, argue that the applicant has failed to exhaust domestic remedies. They concede that the law rules out a hearing before the appellate court if the proceedings are to be discontinued, but point out that there is no express provision concerning a hearing in first instance proceedings. Firstly, the applicant should have complained in his appeal about the lack of a public hearing at first instance. The Government claim that upon such a complaint the appellate court would have ordered the first instance court to hold a hearing, as according to judgments given by the Constitutional Court and the Supreme Court in 1999 in the light of the Court’s Werner v. Austria judgment of 24 November 1997 ( Reports of Judgments and Decisions 1997-VII),  the hearing required by Article 6 § 1 of the Convention may be held whenever it is not expressly excluded by domestic law. Secondly, the applicant should have requested a hearing in his initial submissions to the first instance court. In the alternative, the Government contend that, by failing to do so, the applicant has waived his right to a public hearing. Referring to the Court’s Pauger v. Austria judgment of 28 May 1997 ( Reports 1997-III), they argue that he could not have expected to have a hearing unless he asked for one.

The applicant contends that the action lodged with the first instance court as well as his appeal implied a request for a public hearing, as he was seeking compensation which can only be granted after a public hearing has been held. He could not be required to ask for a hearing if the court intended to discontinue the proceedings. As far as the appeal proceedings are concerned, the law explicity provided that hearings were to be held in private. As to the Government’s alternative argument, the applicant points out that the law does not provide for a possibility to request a hearing. Failure to make such a request, therefore, cannot be considered as a waiver.

The Court considers that the question whether the applicant could and should have asked for a public hearing in the two sets of proceedings at issue is closely related to the merits of the complaint and cannot be decided at this stage of the proceedings.

After an examination of the case in the light of the parties’ submissions, the Court considers that it 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, therefore, 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