FIRST SECTION

Application no. 55495/08 Michael GENNER against Austria lodged on 7 November 2008

STATEMENT OF FACTS

The applicant, Mr Michael Genner , is a n Austrian national, who was born in 1948 and lives in Vienna. He is rep resented before the Court by Mr W.L. Weh , a lawyer practising in Bregenz .

A. The circumstances of the case

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

The applicant worked for the association “ Asyl in Not ” that offers legal and social support to asylum seekers and refugees.

In 2005, an amendment to a number of laws concerning the status of foreigners and of asylum seekers and concerning relevant proceedings ( Fremdenrechts ­ paket 2005 ) was drafted and adopted by Parliament. The amendments entered into force on 1 January 2006.

On 31 December 2006 the then Minister for Interior Affairs, L.P., died unexpectedly of an aneurysm.

On 1 January 2007 the applicant published a statement on the association ’ s website entitled “One less. What ’ s coming now?” It continued stating “The good news for the New Year: L.P., Minister for torture and deportation, is dead.” After referring to some specific individual stories of asylum seekers, the text stated further that “ Mrs P. was a paper pusher ( Schreibtisch ­ täter in ) just like there had been many others in the atrocious history of this country: completely numbed, indifferent to the consequences of their laws and regulations, a compliant instrument of a bureaucracy contaminated with racism. No decent human being sheds a tear over her death.” The applicant concluded the text by expressing that the goal for the New Year was to fight for a new minister that will correct the damage done by L.P. so that Austria could again become a country welcoming asylum seekers and a place where human rights were respected.

Thereupon, G.P., the late Minister ’ s husband, filed a private prosecution ( Privat ­ anklage ) for defamation against the applicant and the association.

On 19 September 2007 the Vienna Regional Court ( Landesgericht für Strafsachen Wien ) convicted the applicant of defamation in respect of the above quoted passages of the statement and sentenced him to the payment of a fine in the amount of 1,200 euros (EUR). Half of the fine was suspended on probation for three years. It dismissed G.P. ’ s request to acknowledge the association ’ s liability for its employee ’ s actions.

The court found that the average reader understood the relevant passages of the statement as if L.P. had ordered or tolerated torture or deportation of detainees with a view to expulsion and had violated human rights. Especially the chosen word “torture” insinuated the intentional infliction of physical or psychological suffering. An average reader also brought the word “deportation” in the context of historical events under the national-socialist regime that had forcefully deported segregated groups of people to ghettos and camps to subject them to forced labour or extinction. The statement in question suggested that L.P. exercised her political function in an incomparably despicable way, that she was indifferent to criminal abuse of authority of officials in relation to asylum seekers and that her actions were motivated by racist, sadist, xenophobic and national-socialist attitude. The publication of the statement had led to considerable reaction from the media and public. The applicant had been criticised as tasteless and impious. Thereupon, on 9 January 2007, in a commentary of the applicant published in a daily newspaper he had clarified that his comments had been directed solely towards L.P. and that he apologised to her family members who were not responsible for the late Minister ’ s inhuman politics.

The Regional Court acknowledged that the criminal charge of defamation opposed the right to freedom of expression as guaranteed by the Convention. It found that the expression of opinions of refugees ’ associations criticising the responsible political class and legislative projects had to be considered an important corrective element and that the limits of acceptable criticism had to be especially wide in the context of the present case. However, in the court ’ s opinion, the published statement exceeded the acceptable limits of criticism. The legislative background of the amendments of the laws governing foreigners and asylum seekers and the fact that criticism was allowed to be shocking, could not justify positioning L.P. in a national-socialist and racist context and suggesting that she tolerated intentional physical ill-treatment of detainees with a view to expulsion or “deportations”. Such incriminations together with the acclamation of her death and the call to “decent” people not to grieve her passing were certainly beyond the limits of tolerable criticism in a democratic society. The allegations made by the applicant had further not been proven to be true, and he had not shown any journalistic diligence in that regard.

The applicant filed an appeal on points of law and fact, as well as against the sentence.

On 7 May 2008 the Vienna Court of Appeal ( Oberlandesgericht Wien ) dismissed the applicant ’ s appeal. Referring to the reasoning of the first instance court it conceded that the word “deportation” today had also the meaning of “expulsion or removal” and was not only used in the context of the national-socialist regime, but also in one of the forced expulsion of (mostly) foreigners. However, the context of the word in which it had been used (“a paper pusher just like there had been many others in the atrocious history of this country”) acted as a reminder of the national-socialist history of the country. Therefore, even though the statements at issue were political value judgments (“ politische Wertungen ”), the applicant did not show any proof of a factual basis of his allegations. The applicant had further argued that, following the case-law of the European Court of Human Rights and of the domestic courts with regard to Article 10, the impugned statement was covered by the freedom of expression. The Court of Appeal however found that such a case-law development still did not provide a carte blanche for the applicant to create comparisons with the national-socialist regime without any factual basis.

That decision was served on the applicant ’ s counsel on 3 June 2008.

On 7 November 2008 the applicant lodge d a request pursuant to Article 363a of the Code of Criminal Procedure to have the proceedings re-opened and the conviction set aside.

On 14 October 2009 the Supreme Court rejected the request. It stated that the admittedly broad limits of tolerable criticism in the political discourse did not cover excessive value judgments without any factual basis. Statements made in even heated political conflicts needed to respect a minimum of decency and moderation. In the present case the Supreme Court found that the evaluation of the courts had rightly led to the result that the text paragraphs in question justified the limitation of the applicant ’ s right to freedom of expression. The value judgment suggesting a criminal behaviour of L.P. was not based on any facts. The courts had not misjudged the considerable public interest in the discourse concerning migration and asylum politics. However, the applicant ’ s statements had not contributed to that public discourse, since they were directed to defame and discredit the late Minister. The court further noted that the penalty rendered was in view of the impious statements and their temporal proximity to L.P. ’ s death appropriate and even moderate.

The Supreme Court ’ s decision was served on the applicant ’ s counsel on 10 November 2009.

B. Relevant domestic law and practice

Section 111 of the Criminal Code ( Strafgesetzbuch ) defines defamation as follows:

“1. As it may be perceived by a third party, anyone who makes an accusation against another of having a contemptible character or attitude, or of behaving contrary to honour or morality, and of such a nature as to male him contemptible or otherwise lower him in public esteem, shall be liable to imprisonment not exceeding six months or a fine (...)

3. The person making the statement shall not be punished if it is proved to be true. As regards the offence as defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true.”

Under the heading “retrial” ( Erneuerung des Strafverfahrens ) the Code of Criminal Procedure ( Strafprozeßordnung ) provides as follows:

Article 363a

“1. If it is established in a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms ( Bundesgesetzblatt [Official Gazette] no. 210/1958) or of one of its Protocols on account of a decision or order of a criminal court, a retrial shall be held on application in so far as it cannot be ruled out that the violation might have affected the content of a criminal court ’ s decision in a manner detrimental to the person concerned.

2. All applications for a retrial shall be decided by the Supreme Court. ...”

In 2007, the Supreme Court broadened the applicability of Article 363a insofar as it accepted under certain circumstances the admissibility of a motion pursuant to Article 363a even without a preceding judgment rendered by the European Court of Human Rights.

COMPLAINT

The applicant complains under Article 10 of the Convention of a violation of his right to freedom of expression.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression contrary to Article 10 of the Convention?