Resolution ResDH (2003)150

concerning the judgment of the European Court of Human Rights of 27 February 2001 (final on 27 May 2001) in the case of Jerusalem against Austria

(Adopted by the Committee of Ministers on 20 October 2003 at the 854th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 (hereinafter referred to as “the Conv ention”),

Having regard to the judgment of the European Court of Human Rights in the Jerusalem case delivered on 27 February 2001 and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;

Recalling that the case originated in an application (No. 26958/95) against Austria, lodged with the European Commission of Human Rights on 2 March 1995 under former Article 25 of the Co n vention by Mrs Susanne Jerusalem , an Austrian national, and that the Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the applicant’s complaint that her right to freedom of expression had been violated on account of an injunction, in 1993, prohibiting her, under Article 1330 of the Austrian Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) , from repeating certain statements she had made in the exercise of her political functions, in the course of debate in the Vienna Municipal Council;

Whereas in its judgment of 27 February 2001 the Court unanimously:

- held that there had been a violation of Article 10 of the Convention, insofar as the Austrian courts considered that the applicant had expressed statements of fact, rather than value judgments, and had therefore required her to prove the truth of such statements without however giving her an effective opportunity to adduce evidence to support them;

- held that it was not necessary to examine separately whether there had been a violation of Article 6 of the Convention;

- held that the finding of a violation in itself constituted sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

- held that the government of the respondent state was to pay the applicant, within three months from the date at which the judgment became final, 101 531,140 Austrian schillings for costs and expenses incurred in the domestic proceedings and 110 000 Austrian schillings for costs and expenses incurred in the proceedings before the Convention organs and that simple interest at an annual rate of 4% would be payable on those sums from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicant’s claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 27 February 2001, having regard to Austria’s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 9 July 2001, within the time-limit set, the government of the respondent state had paid the a p plicant the sums provided for in the judgment of 27 February 2001,

Declares, after having examined the information supplied by the Government of Austria, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH (2003)150

Information provided by the Government of Austria during the examination of the Jerusalem case

by the Committee of Ministers

As regards the individual measures , it should be noted that, according to the Austrian legal system an injunction under Article 1330 of the Austrian Civil Code ( Allgemeines Bürgerliches Gesetzbuch ), such as that at the origin of the Jerusalem case, constitutes a civil claim rather than a criminal judgment. Accordingly, the applicant never suffered from any other consequence of the contested judgment than the injunction itself. She can at any time request the lifting of this measure and should she do so, the Austrian courts would not fail to give effect to the judgment of the European Court of Human Rights in this case.

As regards the general measures , it is recalled that the Austrian courts have, since 1993, adapted their interpretation of the crime of defamation, including the difference between value judgments and statements of fact, to the requirements of the Convention, as interpreted by the European Court (see Resolution DH(93)60 in the case of Oberschlick No. 1 of 23/05/91). As regards the civil-law aspects of defamation at issue in the present case, the judgment of the European Court was immediately communicated to the Austrian Supreme Court. It was also brought to the attention of the public, as well as of all authorities concerned, by its publication in German in a number of Austrian legal journals, i.e Medien und Recht 2001 (p. 89 ff), Österreichisch Juristenzeitung 2001 (p. 23 ff), Österreichisches Institut für Menschenrechte Newsletter 2001 (p. 52 ff).

As a result of the direct effect of the European Convention on Human Rights and of the judgments of the European Court in Austrian law, the judgment in the case of Jerusalem has also been fully incorporated into the Austrian legal system as reflected, for example, in the Judgment of the Supreme Court of July 5, 2001, 6 Ob 149/01 g concerning the interpretation of Article 1330 of the Austrian Civil Code ( Allgeimeines Bürgerliches Gesetzbuch ) in the light of the right to free expression as enshrined in Article 10 of the Convention. In this judgment, the Supreme Court notably assessed the balance of public and private interests in the light of the notion of “permissible criticism” of individuals and associations that enter the arena of political debate, as developed by the European Court in the Jerusalem case.

The Government considers that, in the light of the abovementioned developments, there will no longer exist a risk of repetition of the violation found in the present case and that, consequently, Austria has met its obligation under Article 46, paragraph 1 of the Convention.