FIRST SECTION

DECISION

Application no . 25620/05 ATV PRIVATFERNSEH-GMBH against Austria

The European Court of Human Rights (First Section), sitting on 29 January 2013 as a Comittee composed of:

Khanlar Hajiyev , President , Julia Laffranque , Erik Møse , judges and André Wampach , Deputy Section Registrar ,

Having regard to the above application lodged on 26 June 2005,

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

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

1 . The publication at issue and the proceedings giving rise to the application

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

3. On 19 September 2003 a comedy show was aired on ATV+ called “The Worst of the Week” (“ Das Letzte der Woche ” ), in which a smiling host reported about events of the last week in a satirical manner. The reports were accompanied by canned laughter. One of the reports concerned the fact that the then Vice-Chancellor of Austria, Mr Haupt , had become “godfather” to a hippopotamus at Vienna Zoo – a fundraising incentive available to sponsors of the zoo. The report was first illustrated by showing a picture of Mr Haupt next to the host, followed by footage of a big and a small hippopotamus strolling around, and then reverting back to the host again. During the report, the host narrated the following text:

“Vice-Chancellor Herbert Haupt is godfather to a baby hippopotamus at Vienna Zoo. Haupt , the leader of the FPÖ [the Freedom Party of Austria], has already visited his godchild. The bigger animal is in fact the Vice-Chancellor. Both got along very well right from the start. There are many similarities: they are both normally surrounded by a lot of brown rats.”

4. Mr Haupt made a claim for compensation under section 6 of the Media Act ( Mediengesetz ) in conjunction with Article 115 of the Criminal Code ( Strafgesetzbuch ) , alleging that he had been insulted by the expression “brown rats”.

5. On 25 November 2003 the Vienna Regional Criminal Court dismissed Mr Haupt ’ s claim.

6. On 12 February 2004 the Court of Appeal granted Mr Haupt ’ s appeal, quashing the lower court ’ s decision and referring the case back to the Regional Court .

7. On 17 May 2004, the Regional Criminal Court, after having heard Mr Haupt , ruled in his favour and ordered the applicant company to pay him compensation of 2,000 euros (EUR) and to retract the statement at issue. It held that the applicant company had failed to prove that Mr Haupt had close links to people with an extreme right-wing ideology. The court refused to cross-examine three witnesses requested by the applicant company, because it found that the latter had failed to substantiate the relevance of its request.

8. On 10 January 2005 the Court of Appeal dismissed an appeal by the applicant company and upheld the Regional Court ’ s judgment of 17 May 2004. It also confirmed that the request for cross-examination of the three witnesses was unfounded in that it would not serve to prove the allegation that Mr Haupt did not distance himself enough from people of a particular ideology in his day-to-day life.

2 . Reopening of the proceedings following communication of the application

9. Following the communication of the application in the present case, the Government informed the Court that the Procurator General ’ s Office ( General ­ prokuratur ) had requested the Supreme Court ( Oberster Gerichtshof ) to quash the Regional Court ’ s judgment of 17 May 2004 and the Court of Appeal ’ s judgment of 10 January 2005 and to allow the extraordinary reopening of the proceedings against the applicant company in accordance with Article 362 § 1 of the Code of Criminal Procedure.

10. In a judgment of 24 June 2009 the Supreme Court granted the Procurator General ’ s request and remitted the case to the Vienna Regional Court . It found that there were serious doubts regarding the correctness of the judgments in question as to how the contents of the transmission at issue had been assessed and that the Court of Appeal had not paid sufficient attention to the case-law of the European Court of Human Rights and the Supreme Court in this regard.

11. In the reopened proceedings, the Vienna Regional Criminal Court on 16 October 2009 dismissed Mr Haupt ’ s claim for compensation and also ordered him to bear the applicant company ’ s costs in the proceedings. On 10 March 2010 the Vienna Court of A ppeal dismissed an appeal by Mr Haupt against that judgment. On 18 March 2010 the applicant company ’ s lawyer submitted to the opposing party ’ s lawyer a breakdown of its costs in the proceedings and requested their reimbursement. On an unspecified date the opposing party reimbursed those costs.

12. On 8 July 2010 the applicant company applied to the Vienna Regional Criminal Court for an order requiring Mr Haupt to pay its further costs in the sum of EUR 10,103.19. The applicant company submitted that in the course of the media proceedings it had be en ordered to pay a fine of EUR 6,100 at the opposing party ’ s request, for having failed to publish the Regional Criminal Court ’ s judgment of 17 May 2004 without undue delay. It had also had to bear the opposing party ’ s c osts in those proceedings. On 3 August 2011 the Regional Criminal Court rejected that claim as inadmissible. It found that it was not a mere claim for costs incurred in the proceedings but rather a genuine claim for compensation for unjust enrichment for the purposes of Article 1435 of the Civil Code and therefore had to be pursued before the ordinary civil courts.

B . Relevant Domestic Law

13. If a publication in the media, viewed objectively, constitutes defamation or an insult within the meaning of Articles 111 and 115 of the Criminal Code respectively, the person defamed or insulted may claim compensation for non-pecuniary damage from the owner of the media outlet in question, under section 6 of the Media Act.

14. Articles 111 and 115 of the Criminal Code, in so far as relevant, read as follows:

Article 111

“ 1. Anyone who makes an accusation against another, as it may be perceived by a third party, of having a contemptible character or attitude, or of behaving contrary to honour or morality, of such a nature as to make him contemptible or otherwise lower him in public esteem, shall be liable to a term of 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 a term of 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 held liable if circumstances are established which gave him sufficient reason to assume that the statement was true."

Article 115

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

15. Section 6 of the Media Act, as in force at the time of the events, read as follows:

“(1) If in a medium the presence of the factual elements of the offence[s] of an insult ...or defamation is established, the person concerned may claim compensation in respect of the prejudice suffered from the owner of the medium concerned.

...

(2) No claim shall arise under subsection (1) above where:

(a) the defamatory statement is true.”

16. Article 362 § 1 of the Code of Criminal Procedure, as in force since 2008, reads as follows:

“The Supreme Court may, after having heard the Procurator General and without being bound by the conditions set out in Article 353, allow the exceptional reopening of the criminal proceedings in favour of the person convicted of a crime if an examination of the case file

( i ) in the course of the preliminary deliberations on a plea of nullity or following a public hearing ... ; or

(ii) upon a special request made by the Procurator General ...

causes considerable doubts as to the correctness of the facts on which a conviction has been based and which cannot be dissipated by further investigations ordered by the Supreme Court itself.”

17. Article 1435 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) reads as follows:

“Even things which have been transferred in order to honour a genuine debt may be reclaimed by the donor from the beneficiary if the legal cause for keeping them has ceased to exist.”

COMPLAINTS

18. In its initial application the applicant c ompany complained under Article 10 of the Convention that the outcome of the domestic proceedings amounted to a violation of its freedom of expression.

19. The applicant company also complained under Article 6 about the court ’ s assessment of and refusal to take evidence.

THE LAW

20. By letter of 30 August 2011 the Government informed the Court of the outcome of the reopened domestic proceedings, asking the Court to strike the application out of the list. In its letter of 15 September 2011 the applicant company stated that it was prepared to accept that request, provided that all its costs incurred in the proceedings before the Court and in one specific set of domestic proceedings were to reimbursed.

21. The Court observes that in recent comparable cases it has decided to strike the applications out of its list, considering that the matter had been resolved within the meaning of Article 37 § 1 (b) of the Convention (see Verlagsgruppe News v. Austria ( dec .), no. 43521/06, 19 October 2009; Standard Verlags GmbH v. Austria ( dec .), no. 17928/05, 28 January 2010; Standard Verlags GmbH and Rottenberg v. Austria ( dec .), no. 36409/04, 1 July 2010; and Grüne Alternative Wien v. Austria (striking out), no. 13281/02 , 29 November 2011 ).

22. Article 37 § 1 of the Convention, in its relevant parts, provides as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

...

(b) the matter has been resolved; ...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

23. In order to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b) and that there is therefore no longer any objective justification for the applicant to pursue the application, the Court reiterates that it must examine, firstly, whether the circumstances complained of directly by the applicant still obtain and secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002, and Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 45, 7 December 2007).

24. The Court observes that the judgments complained of by the applicant company were set aside by the Supreme Court ’ s judgment of 24 June 2009, by which the proceedings against the applicant company were reopened and the case was remitted to the court of first instance.

25. In the reopened proceedings, the Vienna Regional Court followed the Supreme Court ’ s line of reasoning and, in its judgment of 16 October 2009 dismissed the compensation claim against the applicant company and ordered the opposing party to pay the entire costs of the proceedings.

26. The applicants have thus already obtained a rehearing of the case, an outcome which would normally follow the finding of a violation of the Convention by the Court in accordance with Article 363a of the Code of Criminal Procedure, which also applies to proceedings under the Media Act. A further examination of the present case by the Court is therefore not required.

27. As regards the question whether the effects of a possible violation of the Convention have been redressed, the Court considers that this is the case. The applicant company also claimed reimbursement of a fine imposed in enforcement proceedings for not having published the Regional Court ’ s judgment of 17 May 2004 without undue delay and also the related procedural costs. The Court observes, however, that the enforcement proceedings have not been the subject matter of the present application and consequently cannot be taken into account.

28. Moreover, the applicant company claimed that it had not received compensation for its costs in the Convention proceedings, for which it claimed the amount of EUR 2,635.35, plus v alue-added tax. Under Rule 43 § 4 of the Rules of Court, the Court has discretion to award costs if a case is struck out of the list. The fact that the applicant company still has a claim for costs does not therefore prevent the application of Article 37 § 1 of the Convention.

29. Furthermore, the Court is satisfied that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the application (Article 37 § 1 in fine). Accordingly, the case should be struck out of the list.

30. The Court finds it appropriate in the circumstances of the case to make an award in respect of the costs of the Convention proceedings (see Verlagsgruppe News ; Standard Verlags GmbH ; Standard Verlags GmbH and Rottenberg ; and Grüne Alternative Wien, all cited above). The Government commented that the applicant company ’ s claim for costs was excessive. The Court considers that the costs claimed were necessary and reasonable as to quantum and awards them in full, plus any tax that may be chargeable to the applicant company on that amount . Furthermore, the Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

For these reasons, the C ourt unanimously

Decides to strike the application out of its list of cases;

Decides

(a) that the Government is to pay the applicant company, within three months from the date of this decision, EUR 2,635.35 (two thousand six hundred and thirty-five euros and thirty-five cents), plus any tax that may be chargeable to the applicant company , in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

André Wampach Khanlar Hajiyev Deputy Registrar President