THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28525/95 by Unabhängige Initiative Informationsvielfalt against Austria

The European Court of Human Rights (Third Section) , sitting on 12 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 21 July 1995 and registered on 13 September 1995,

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 a registered association ( Verein ) in Vienna and publisher of a periodical called the " TATblatt ." Before the Court the applicant association is represented by Mr. T. Prader , 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 the issue of 9 December 1992 of the " TATblatt " the following leaflet was published:

" Querformat , a (new) wallnewspaper against the trend towards the right wing ..."

"Racism has a name and address

The FPÖ (Austrian Freedom Party) and its party officials are certainly interested in your opinion!  So, let's call them and tell them what we think of them and their policy.  Or let's send them small gifts in response to their racist agitation.

We have gathered a small selection of Vienna FPÖ-officials, FPÖ-offices and of course Jörg Haider in order to facilitate a little the unbureaucratic exchange of opinions.

They will surely enjoy your phone calls, letters and parcels: ..."

" Querformat eine ( neue ) Wandzeitung gegen den Rechtsruck . . ."

" Rassismus hat Name und Adresse

Die FPÖ und ihre Funktionär / innen sind doch sicherlich an unserer Meinung interessiert ! Rufen wir sie also an, und sagen wir ihnen , was wir von ihnen und ihrer Politik halten . Oder schicken wir ihnen kleine Aufmerksamkeiten als Antwort auf ihre rassistische Hetze .

Wir haben eine kleine Auswahl von Wiener FPÖ- Politiker / innen , von den FPÖ- Parteilokalen und natürlich von Jörg Haider zusammengestellt , um den unbürokratischen Meinungsaustausch ein bißerl zu erleichtern .

Auf eure Anrufe , Briefe und Pakete freuen sich sicher ganz bestimmt : ..."

The above text was followed by a list of addresses and telephone numbers of members and offices of the Austrian Freedom Party (FPÖ).

Between 25 January and 1 February 1993 an opinion poll ( Volksbegehren ) under the heading “Austria first” (“ Österreich zuerst ” ) took place which had been initiated by the FPÖ. The opinion poll concerned the issue of immigration with twelve proposals, partly to amend legislation and partly to change administrative practices. It proposed, inter alia , the following:

- to amend the Federal Constitution by a provision stating that Austria was not a country of immigration;

- to stop immigration until a satisfactory solution to illegal immigration was found;

- to oblige all foreign workers to carry an identity card at their place of work showing that they had a valid work permit;

- to increase the police force and create a separate border police;

- to limit the percentage of pupils whose mother tongue was not German to 30 % and, if the percentage were higher, to create separate classes for foreigners;

- to deny foreigners the right to vote; and

- to require the immediate expulsion of and residence prohibition on foreign offenders.

On 11 February 1993 Mr. Jörg Haider , leader of the FPÖ and at that time Member of Parliament brought civil proceedings for an injunction under S. 1330 of the Austrian Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) against the applicant association before the Vienna Commercial Court ( Handelsgericht ). He requested that the applicant be prohibited from repeating the statement according to which he had made "racist agitation" (" rassistische Hetze ") and any similar statements. He further requested that the applicant be prohibited from inviting people to "send small gifts in response to their racist agitation", together with the publication of the names, telephone numbers and addresses of members of the plaintiff’s political party.

The applicant association submitted that it had never identified itself with the leaflet at issue and had merely published it out of journalistic interest and in order to inform the public. Moreover, the words "racist agitation" were not a statement of fact but a value judgment and were meant as a critical comment of the opinion poll "Austria first" (" Österreich zuerst ") which the plaintiff had initiated and which was directed against "immigration without control".

On 14 April 1994 the Vienna Commercial Court granted the injunction. It found that the impugned statement about “racist agitation” was not a value judgement, but a statement of fact. Such a statement contained a reproach of a criminal offence, namely "incitement to hatred" ( Verhetzung ) under S. 283 of the Austrian Criminal Code ( Strafgesetzbuch ) and not only damaged the plaintiff's reputation ( Rufschädigung ) but also amounted to an insult ( Ehrenbeleidigung ). In order to avoid the injunction, the applicant association therefore would have to prove the truth of its statement. However, it had failed to do so. Even accepting that the plaintiff was, more or less, a right wing politician, there was no evidence that he had attempted to incite hatred ( verhetzen ) against aliens or had attacked their human dignity.

As regards the invitation "to send small gifts", the court observed that a part of the applicant's readership was, for political reasons, prepared to use violence and anarchistic methods. In this respect the court noted that in the issue of the " TATblatt " of 9 December 1992 a letter to the editor had been published which read as follows:

"... we organised in the night of 29 to 30 November our first action against Haider's referendum and have smashed several windows of the FPÖ headquarters in Salzburg.  This was only the beginning. ..."

"... wir haben in der Nacht vom 29. auf den 30. November unsere erste Aktion gegen Haiders Volksbegehren durchgeführt und der Salzburger FPÖ- Zentrale die eine oder andere Scheibe eingeschlagen . Das war erst der Anfang . ..."

According to another letter to the editor published in the issue of the " TATblatt " of 20 January 1993, an FPÖ party office in Vienna had been "visited", the words "racism stinks" had been sprayed on the walls, windows smashed and butter acid thrown into the office. The Commercial Court then quoted further letters of this kind which had appeared in various issues of the " TATblatt ". The court found that against this background the invitation to "send small gifts" constituted attacks on the plaintiff's personality rights ( Persönlichkeitsrechte ) which had to be respected. Accordingly, the court granted the injunction in this respect also.

On 29 August 1994 the applicant association appealed against the injunction.

On 26 January 1995 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the appeal. It confirmed the Commercial Court's view that the statement according to which the plaintiff had incited people to "racist agitation" was a statement of fact which the applicant association had failed to prove. In this respect the court found as follows:

“But since - as we have already outlined in dealing with the complaint concerning the facts - the meaning of the term “racist agitation” could be established on the basis of general experience, and since the defendant has failed to submit any concrete allegations to the effect that the plaintiff had shown conduct corresponding to what is generally known as “racism” and “agitation”, the court of first instance - without there being a mistake of law - rightly concluded that the defendant was unable to prove the truth of its allegations. ...”

“ Da aber - wie bereits bei der Behandlung der Tatsachenrüge ausgeführt wurde - der Aussageinhalt der Äusserung ‘ rassistische Hetze ’ schon nach der allgemeinen Erfahrung ermittelt werden konnte , es aber an konkreten Behauptungen der Beklagten fehlt , wonach der Kläger ein den allgemein geläufigen Begriffsbestimmungen von ‘ Rassismus ’ und ‘ Hetze ’ entsprechendes Verhalten gesetzt hätte , ist das Erstgericht ohne Rechtsirrtum zum Ergebnis gelangt , dass der Beklagten der Wahrheitsbeweis nicht gelingen konnte . ...”

As regards the applicant association's argument that this statement was covered by its right to freedom of expression, the Court of Appeal found that the interests of the applicant and the plaintiff had to be balanced against each other. However, the applicant's statement could not be justified by invoking freedom of expression, because the statement went beyond the limits of acceptable criticism by reproaching the plaintiff with a criminal offence. Moreover, the impugned statement was untrue and therefore not protected by Article 10 of the Convention. The Court of Appeal confirmed the decision taken by the Commercial Court in respect of both statements.

On 13 March 1995 the applicant association introduced an extraordinary appeal on points of law ( außerordentliche Revision ) against the Court of Appeal's decision insofar it concerned the prohibition to repeat the statement that the plaintiff had made "racist agitation".

On 6 April 1995 the Supreme Court ( Oberster Gerichtshof ) declared the extraordinary appeal inadmissible as it found that the qualification of the statement at issue as a statement of fact was in accordance with its previous case-law.

B. Relevant domestic law

Section 1330 of the Austrian Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) provides as follows:

             "(1) Everyone who has suffered material damage or loss of profit because of an insult may claim compensation.

             (2) The same applies if anyone disseminates statements of fact which jeopardise another person's credit, gain or livelihood and if the untruth of the statement was known or must have been known to him. In such a case the retraction of the statement and the publication thereof may also be requested ... ."

COMPLAINT

The applicant association complains under Article 10 of the Convention that the injunction issued by the Austrian courts, insofar they had ordered the applicant not to repeat the statement that the plaintiff in the above proceedings made "racist agitation", violated its right to freedom of expression.

THE LAW

1. The applicant association complains under Article 10 of the Convention that the injunction issued by the Austrian courts, insofar they had ordered the applicant not to repeat the statement that the plaintiff in the above proceedings made "racist agitation", 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 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 in the interests of … public safety, for the prevention of disorder or crime … for the protection of the reputation or rights of others ... .”

The Government accept that the injunction interfered with the applicant’s right to freedom of expression. However, the measure at issue was justified under paragraph 2 of Article 10 being “prescribed by law” - Section 1330 of the Civil Code - and having pursued legitimate aims. As regards the statement that the plaintiff in the above proceedings made "racist agitation", the legitimate aim was the protection of the reputation and rights of others. As regards the invitation to “send small gifts” which, according to the Austrian courts, had to be understood as a call to encroach upon the property, if not the life of the plaintiff, the legitimate aim was the protection of public safety and the prevention of disorder or crime. Moreover, the interference was necessary in a democratic society in the interests of those aims. The applicant’s statement went far beyond the limits of acceptable criticism even taking into consideration the fact that the plaintiff as a politician had to show a higher degree of tolerance to criticism. The impugned statement about “racist agitation” was a statement of fact and the applicant association had had an opportunity to prove its truth but had failed to do so. The injunction was not a disproportionate measure considering that it was taken by a civil court and was not a criminal conviction, and that it was not formulated in broad terms but confined to particular statements which were clearly defined in the judgment.

             The applicant association submits that the injunction issued by the Austrian courts constituted an interference with its rights under Article 10. Although there was a legal basis for the interference and the measure at issue pursued a legitimate aim under Article 10 § 2, it was not necessary in a democratic society. The case is only directed against the injunction insofar it enjoins the applicant from stating that the plaintiff made “racist agitation”, and this was the only aspect of the appeal to the Supreme Court. In the applicant’s view, the courts wrongly qualified the impugned statement as a statement of fact, when it was a political value judgment criticising the plaintiff in the injunction proceedings and contributing to a political debate on a question of general importance. It was in the public interest to point out the dangerousness of a politician like Mr. Haider who had proposed contemptible measures in an opinion poll against immigration (“ Österreich zuerst ” - Austria first). As a value judgment and not a statement of fact, its truth did not require proof. To require proof of a value judgment would itself be a violation of Article 10 of the Convention. As regards the proportionality of the measure, it was immaterial that the decision emanated from civil rather than criminal proceedings, because in both cases the applicant was prevented from repeating the statement in the future.

The Court considers, in the light of the parties’ submissions, that the applicant’s 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 case. 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