Resolution CM/ ResDH (2018)322 Execution of the judgment of the European Court of Human Rights Pfeifer against Austria

(Adopted by the Committee of Ministers on 20 September 2018 at the 1324 th meeting of the Ministers ’ Deputies)

Application No.

Case

Judgment of

Final on

12556/03

PFEIFER

15/11/2007

15/02/2008

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 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

Information about the measures to comply with the judgment in the case of

Pfeifer against Austria

Introductory case summary

The case concerns the violation of the right to respect for private life as a result of the failure by the domestic courts to protect the applicant ’ s reputation against defamatory statements published by the chief editor in a domestic newspaper in February 2001 (violation of Article 8). The Court considered that the State ’ s obligations under Article 8 to protect the applicant ’ s reputation may arise where statements go beyond the limits of what is considered acceptable criticism under Article 10. In the circumstances of the present case, the Court held that the domestic courts, by finding that the statements at stake had not been excessive, had failed to strike a fair balance between the competing interests of the protection of freedom of expression and the applicant ’ s right to have his reputation safeguarded.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Paid on

-

5,000 euros

10,000 euros

15,000 euros

11/03/2008

b) Individual measures

On 21 August 2008 the Supreme Court ( Oberster Gerichtshof ) rejected the applicant ’ s request to re-open criminal proceedings against the chief editor and the publishing company, finding that, as a private plaintiff (“ Privatankläger “), he had in principle no legal standing for such a request under Article 363a of the Code of Criminal Procedure. Moreover, the request for re-opening against a previously acquitted person would infringe the principle of the prohibition of reformatio in peius applicable in criminal proceedings.

The Austrian authorities further considered that in view of the Court ’ s award for non-pecuniary damage, which was deemed sufficient just satisfaction, and given that a State ’ s duty under the Convention in executing a judgment cannot be construed so as to violate the principle of the prohibition of reformatio in peius to the detriment of an acquitted person, no other individual measure was considered possible.

II. General measures

The judgment of the European Court was published in ÖJZ 2008/2, p. 161 and Newsletter Menschenrechte 2007, p. 307 and is available online under http://www.menschenrechte.ac.at/docs/07_6/07_6_05. It was also disseminated to the Federal Chancellery and the Ministry of Justice. In this respect it is pointed out that the Convention and the Court ’ s case-law have direct effect under Austrian law.

The Austrian authorities indicated that several training sessions for judges and for judge-trainees regarding Articles 8 and 10 of the Convention had been organised by the Ministry of Justice, together with the Ludwig Boltzmann Institut für Menschenrechte , to allow for a in-depth examination and discussion of the relevant criteria in the light of the Convention and its case-law.

Since the present judgment became final, no similar violations have been found by the European Court.

In view of the above, no other general measure was deemed necessary.

III. Conclusions of the respondent State

The government considers that no individual measure is 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.