FOURTH SECTION

PARTIAL 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 (Fourth Section) , sitting on 19 September 2000 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 24 October 1997 and registered on 16 April 1998,

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 deliberated, decides as follows:

THE FACTS

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

A. The circumstances of the case [Note1]

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

In 1995 the first applicant published an article in the magazine of the applicant company on the question whether it was possible and desirable to form a coalition government with the Austrian Freedom Party under Jörg Haider . 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. The applicant wrote that under Haider , in the late 1980s, these “old underground nazis” (“ alte Kellernazis ”) became influential again. In this context he cited the name of a certain Ms. R, a member of a regional parliament ( Landtag ), whose husband is a prominent right-wing extremist.

Subsequently, Ms. R. brought a private prosecution against the first applicant for defamation ( üble Nachrede ), 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 and sentenced to pay a fine of AS 60,000. The second applicant company was ordered to pay AS 30,000 in compensation to Ms. R. The court found that the applicants had failed to provide evidence of any neo-Nazi activities by Ms. R.

On 3 March 1997 the Vienna Court of Appeal ( Oberlandesgericht ) confirmed the Regional Court’s decision. It considered that the article insinuated clandestine neo-Nazi activities by Ms. R. which could not be proved.

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. 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 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."

COMPLAINTS

The applicants complain under Article 10 of the Convention that the court’s decision violated their right to freedom of expression. They further complain under Article 6 of the Convention that the Austrian courts did not give due consideration to the evidence provided by them.

THE LAW

1. The applicants complain under Article 10 of the Convention about their conviction for defamation.

Article 10, insofar as relevant, reads as follows:

“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.

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 Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

2. The applicants complain under Article 6 of the Convention, which guarantees a fair hearing,  that the Austrian courts did not give due consideration to the evidence provided by them.

However, the Court recalls that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. There is no indication that the applicants, assisted by counsel, could not duly put forward their defence, or that the proceedings were otherwise unfair. Thus, there is no appearance of a violation of Article 6 § 1 of the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant s’ complaint [Note2] under Article 10 of the Convention;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa Registrar President

[Note1] Include information obtained from the Government on the Judge Rapporteur’s request (Rule 49 § 2 (a)) or Chamber’s request (Rule 54 § 3 (a)), with indication of this fact, where appropriate.

[Note2] Summarise the complaints without necessarily citing the invoked Convention Articles.