Resolution CM/ ResDH (2018)375 Execution of the judgment of the European Court of Human Rights Arbeiter against Austria

(Adopted by the Committee of Ministers on 17 October 2018 at the 1327 th meeting of the Ministers’ Deputies)

Application No.

Case

Judgment of

Final on

3138/04

ARBEITER

25/01/2007

25/04/2007

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established;

Recalling the respondent State’s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the information provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see Appendix);

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH ( 2018)375

Information about the measures to comply with the judgment

in the case of Arbeiter against Austria

Introductory case summary

The case concerns the violation of the applicant’s freedom of expression on account of the injunction issued against him under Article 1330 § 2 of the Civil Code concerning the applicant’s statements and allegations in the context of a political debate concerning the reform of the regional health system in 2001 (violation of Article 10) .

The Court found that the domestic courts restricted the applicant’s freedom of expression while relying on reasons which could not be regarded as sufficient and relevant, and that they therefore went beyond what would have amounted to a “necessary” restriction on the applicant’s freedom of expression.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

7,934.11 EUR

-

12,402.58 EUR

20,336.69 EUR

Paid on 16/07/2007

b) Individual measures

The Court did not award just satisfaction for non-pecuniary damages because the applicant failed to specify his claim (see §32 of the judgment).

As regards the injunction, it should be noted that it was issued in 2001 and concerned the debate on the then ongoing regional health reform. Although, technically, the injunction is still in force, it has today, in the view of the Austrian authorities, no consequences for the applicant anymore, as it pertains to a specific situation in the past (i.e. not to repeat certain statements concerning the regional health reform). It did not come to the attention of the authorities that the injunction would still hinder him today. Moreover, it should be noted in this context that, according to section 391 of the Enforcement Code ( Exekutionsordnung ), an injunction sets out the time frame for compliance with the indicated measure. After expiration of this period, the indicated measure loses its legal effect but the injunction does not cease ex lege . According to sections 391 and 399 of the Enforcement Code, the parties to the proceedings are entitled to apply for the setting aside of the injunction. To the authorities’ best knowledge, the applicant did not avail himself of this possibility. Therefore, no other individual measure appears necessary in this particular case.

II. General measures

The judgment of the Court was disseminated to all authorities directly concerned and published in Newsletter Menschenrechte 2007/1/09, p. 23, and is available online under http://www.menschenrechte.ac.at/ . In this respect it is pointed out that the European Convention and the Court’s case-law have direct effect under Austrian law.

Furthermore, training and awareness-raising measures regarding the application of the Convention and the Court’s case-law, such as the following, are regularly carried out:

- Judgments of the Court are discussed on a regular basis in the advanced training courses for judges on fundamental rights and in seminars for candidate judges and legal trainees;

- Future judges obtain specialised training in human and fundamental rights as part of their four-year education. These issues are also part of the curriculum in the final examinations for judges;

- Since 2008 all future judges undergo a three-day-long, interdisciplinary and compulsory module on human rights as part of their initial training, which is organised by the Association of Austrian Judges ( Vereinigung der Österreichischen Richterinnen und Richter), by the Ludwig Boltzmann Institute on Human Rights Vienna, by the European Training- and Research Center for Human Rights and Democracy Graz (ETC) and by the Austrian Institute for Human Rights Salzburg ( Österreichisches Institut für Menschenrechte Salzburg - ÖIM);

- Specialised courses are offered, which deal with media law and issues concerning freedom of opinion and protection of privacy;

- All future and present judges in all parts of Austria have the opportunity to participate in a study visit to the Court in Strasbourg;

- As part of their continuing training, judges and prosecutors can participate in specialised courses on human rights. In 2014, for example, a seminar series on ” Human and fundamental rights in daily court-practice“ was organised in cooperation with the Ludwig Boltzmann Institute on Human Rights Vienna. A new initiative was launched in 2017;

- The European Judicial Training Network (EJTN) offers both three-day study visits to the Court in Strasbourg and a 12-month” long term exchange”.

Lastly, it is recalled that relevant measures were already adopted in the context of Wirtschafts -Trend Zeitschriften-Verlags GmbH v. Austria (No. 2) (58547/00) and other cases (Resolution CM/ ResDH (2011)41 ).

In view of the above, no further general measures were deemed necessary.

III. Conclusions of the respondent State

The government considers that no further individual measures are required, that the general measures adopted will prevent similar violations and that Austria has thus complied with its obligations under Article 46, paragraph 1, of the Convention in the present case.