Resolution ResDH(2006)68 [1]

Execution of the judgment of the European Court of Human Rights Scharsach and News Verlagsgesellschaft mbH against Austria

(Application No. 39394/98, judgment of 13 November 2003, final on 13 February 2004)

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 referred to as “the Convention” and “the Court”);

Having regard to the final judgment in this case, transmitted by the Court to the Committee on 13 February 2004;

Recalling that the violation of the Convention found by the Court in this case concerns the applicants ' conviction for defamation in 1996 which infringed their right to freedom of expression (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Austria ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of

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

- general measures preventing new, similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix;

DECLARES that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close its examination.

Appendix to Resolution ResDH(2006)68

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

Scharsach and News Verlagsgesellschaft mbH against Austria

Introductory case summary

This case concerns a disproportionate interference with the applicant ' s freedom of expression on account of a judicial decision of 1996 sentencing Mr Scharsach to a suspended fine for defamation, under Article 111 of the Criminal Code, and ordering the applicant company to pay damages, under Article 6 of the Media Act. This decision followed the publication, in the weekly magazine published by the applicant company, of an article by M. Scharsach describing certain politicians as “old closet Nazis” ( Kellernazi ) for not having dissociated themselves from the extreme right. Contrary to the conclusions of the Austrian courts, the European Court considered that the allegations at issue, taken in their context, did not amount to a statement of facts but to a value judgment on a subject of public interest, not exceeding the limits of permissible criticism. The Court accordingly found that the applicants ' conviction was not necessary in a democratic society (violation of Article 10).

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

€ 12 646.83

€ 5 000

€ 6 424.94

€ 24 071.77

Paid on 08/03/2004

b) Individual measures

The government recalls that the fines paid as a result of the convictions at issue in this case have been compensated by the just satisfaction paid and that Mr Scharsach ' s conviction may be annulled through the reopening of the proceedings under section 363a of the Code of Criminal Procedure.

The government recalls that in this kind of cases, the Committee has in principle acknowledged the direct effect of the Convention and its case-law in Austrian law (see Lingens judgment of 08/07/1986, Resolution DH(87)2; Oberschlick judgment of 23/05/1991, Resolution DH(93)60; Schwabe judgment of 28/08/1992, Resolution DH(94)23). However, given the fact that this direct effect did not prevent the violation in the present case, which calls for a subtle assessment of the requirements of Article 10, a seminar on Article 10 was organised by the independent human rights centre the Ludwig Boltzmann Institut für Menschenrechte for all judges and state attorneys dealing with media questions. This seminar took place on 15/06/2005 at the training centre of the Vienna Higher Regional Court .

As with all other judgments of the European Court against Austria concerning criminal law, the judgment was automatically transmitted to the presidents of all higher courts, so as to bring the judgment to the attention of all judicial authorities in their jurisdiction. Furthermore, judgments of the European Court are accessible to all judges and state attorneys through the internet database of the Austrian Federal Chancellery. A summary of the judgment was also translated and published in the database of the Austrian Institute of Human Rights.

Conclusions

The Austrian Government considers that the measures taken have fully remedied the violation of the Convention found by the European Court in this case and will prevent new similar violations in future and that Austria has therefore complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 20 December 2006 at the 982nd meeting of the Ministers’ Deputies