FIRST SECTION

Application no. 14134/07 Harald ARMELLINI and others against Austria lodged on 30 March 2007

STATEMENT OF FACTS

The first applicant, Mr. H. Amellini , was born in 1961 and lives in Hard. The second applicant Mr. F. Andres was born in 1968 and lives in Bregenz . They are both journalist employed by the third applicant, Zeitungs - und Velags GmbH, a limited liability company with its seat of business in Schwarzach . The third applicant publish es the regional newspaper “ Neue Voralberger Tageszeitung ”.

A. The circumstances of the case

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

1. The background of the case

In the beginning of 2005 R.H., a German football referee, admitted to having participated in bet rigging ( Wettbetrug ) by manipulating, together with other persons in particular the brothers F.S. M.S. and A.S., football matches. R.H. told the police that he knew that football matches were also manipulated in Greece and Austria . As regards Austria he referred to the football club “Casino SW Bregenz ” which still existed at the time of the events in 2005.

2. The article published by the third applicant

On 19 February 2005 an article written by the first and second applicant appeared in the Neue Voralberger Tageszeitung dealing with the links of the German betting scandal to Bregenz .

On the front page the head line, printed in a black box in white, read as follows: “ Bregenz -players bribed with 60,000 euros (EUR)” ( “ Bregenz ‑ Spieler mit 60.000 € bestochen ” ). Below that headline and still in the black box were the photos of A.T., D.G. and A.I. and in a yellow box the phrase: “The investigators are at the heels of this trio: They should have manipulated matches for the betting-mafia!” (“ Diesem Trio sind die Fahnder auf den Fersen : Es soll für Wett -Mafia Spiele manipuliert haben !” ). In the upper left corner a little box contained the following phrase: “Terrible suspicion against football- profis confirmed:” ( “ Schlimmer Vedacht gegen Fussball-Profis erhärtet :” ).

On page 29 there was the main article on this subject written by the first and second applicant. The head-line read as follows: “Sold and betrayed the team for 60,000 EUR?” ( “ Für 60,000 € Team verkauft und verraten ?” ). The article stated that the three football-players should have been bribed by the betting-mafia with EUR 60,000 for three matches. Bets for these matches of “Casino SW Bregenz ” had been placed in the area of Stuttgart ( Germany ). In one match, which had ended with the result of 2:5 against “Casino SW Bregenz ”, the goal-keeper A.T. had made serious mistakes, as expected, and another player, A.I. was replaced because of his poor performance. Also D.G. was playing in that match. The reasons for the manipulations were financial difficulties of the players who had not received their salary for months. They had all signed a public statement denying their involvement in the betting scandal, which had been prepared by the management of the club.

On the following page there was an article under the head-line “A 5:2 result shocks a second time!” ( “ Ein 5:2 schockt ein zweites Mal!” ) in which a football match of November 2004 is reviewed again and it is hinted that the poor performance of some of the players had a connection to the betting-scandal.

3. The criminal proceedings

On 15 March 2005 A.T., D.G. and A.I. filed a private prosecution ( Privatanklage ) against applicants before the Feldkirch Regional Court . They argued that the accusation, raised in the article published by the third applicant in its newspaper on 19 February 2005, of having accepted bribes and manipulated football matches, was particularly serious for a professional football player and his professional reputation. This accusation, which was untrue, constituted defamation and they requested the court to convict the first and second applicant of this offence. The indicated in particular the following passages of the article as defaming:

( i ) “Terrible suspicion against football- profis confirmed: Bregenz -players bribed with EUR 60,000” ( “ Schlimmer Vedacht gegen Fussball-Profis erhärtet : Bregenz-Spieler mit 60.000 € bestochen ” );

(ii) “Sold and betrayed the team for 60,000 EUR?” ( “ Für 60,000 € Team verkauft und verraten ?” );

(ii) Bregenz players A.T., D.G. and A.I. were bribed. 60,000 EUR, so that their team looses three matches. (“Die Bregenz-Spieler A.T., D.G., und A. I. sollen bestochen worden sein . 60.000,-- € , damit ihr Team drei Spiele verliert .”)

(iv) (As regards the third-plaintiff A.T.) “A.T. had made the contact to the Croat betting-mafia.” ( “Den Kontakt zur kr oatischen Wettmafia soll A.T. hergestellt haben .” )

They also claimed compensation from the third applicant for the injury caused and that the judgment be published in its newspaper.

On 21 March 2005 the Feldkirch Regional Court ordered the third applicant to publish within five days a short information ( kurze Mitteilung ) on the institution of the criminal proceedings for defamation in respect of the article at issue.

On 8 April 2005 the applicants commented on the charges against them. They argued that they had only voiced a suspicion against the plaintiffs but that, in any event, their statements were true, or at least, the first and second applicant had had good reason to believe that they were true which would exclude punishment.

Between 26 April 2005 and 13 December 2005 the Regional Court held four hearings in the case in which it heard several witnesses, inter alia K.E., a freelance journalist working for the third applicant ’ s newspaper and who had contacted two informants who had wished to remain anonymous and R.H. (see above). R.H. spoke about his contac ts to the S. brothers since May 2004 and stated that one of them, F.S., had contacts to Austria , in particular the football club Casino SW Bregenz . In his opinion two players of that team had contacts to F.S., but did not give any names or other details.

On 13 December 2005 the Regional Court found that the incriminated statements from the article of 19 February 2005 amounted to defamation, convicted the first and second applicant of that offence and sentenced them to a fine of EUR 3,680 and EUR 5,040 respectively. It ordered the third applicant to pay compensation of EUR 20,000 to each plaintiff and to publish an abstract of the present judgment in its newspaper.

As regards the impugned article, the Regional Court paid particular attention to its outer appearance which, through its lay-out and presentation, in particular the printing in white in a large black box, conveyed to the reader the impression that the investigators were about to catch the pictured persons who had filled their pockets with money using dirty tricks. That first impression would no longer be mitigated by the small reference to a suspicion in the upper left corner. The same was true for the head-line on page 29 which read: “Sold and betrayed the team for 60,000 EUR?”. This was a suggestive question which already contained the answer and again that first impression could hardly be mitigated by the use of the conjunctive in some phrases of the article itself. The court therefore concluded that, seen as a whole, the article created the impression of being a statement of facts about the scandal and not a genuine expression of a suspicion.

The Regional Court therefore examined whether the accused had acted with due journalistic diligence when they considered these statements as true or if they could prove the truth. As regards the first element the Regional Court accepted that there was a public interest in being informed on the question whether or not players of Casino SW Bregenz team were actually involved in a betting scandal, but found that the first and second applicant had not acted with sufficient professional diligence. They had not personally conducted any research to verify the well- foundedness of the rumours but had merely relied on the research of K.E., a freelance collaborator of the newspaper and had not checked the reliability of the sources, anonymous informants not known to them. Further, they had not given A.T., D.G. and A.I. an opportunity to react even though there had been important new elements going beyond a general suspicion of involvement into the betting scandal to which they had already reacted in the past, namely that they had received a specific amount EUR 60,000 for manipulating three football matches in summer 2005.

Turning to the proof of truth offered by the applicants, the Regional Court observed that D.G. and A.I. had only been accused by the two informants of K.E., X. and Y., of being involved in the betting scandal, and these informants had not given any details or had stated that they themselves had witnessed a transaction. Also R.H., when heard by the court, did not refer to them directly or indirectly. That was clearly no proof of the truth.

As regards A.T. the Regional Court observed that he had lied when he stated that he did not know F.S., that F.S. had repeatedly been in Bregenz and that there had been football matches in which that player had made a very poor performance. Also the informants X. and Y. had stated that A.T. was involved in the betting scandal. These were arguments speaking in favour of his involvement into the betting-scandal, but there were also arguments speaking against. It was understandable that A.T. had not admitted to knowing F.S. immediately when all kinds of suspicions were discussed in the connection with the betting scandal, as F.S. was one of the principal persons involved in that scandal. Further, there was only evidence that F.S. had come to Brengenz on various occasions between Autumn 2003 and May 2004, whereas the football match which in the eyes of the authors of the article was particularly suspicious had taken place in November 2004. According to the information given by X. and Y., F.S. had paid the three accused football-players 60,000 EUR in summer 2004 for three matches which had not yet taken place. That did not coincide with his habits as described in detail by R.H. Lastly, the a mount claimed by X. and Y., EUR 60,000, was not plausible, given that Casino SW Bregenz had been at the very end of the national football-chart in Austria throughout the season of 2004/2005 and the quota for bets on that team loosing a match would have been so small that they would not have justified the investment of a considerable sum.

Weighing all these elements, the Regional Court concluded that the applicants had not succeeded in proving the truth of the statements made in the impugned article. As regards the compensation under Section 6 of the Media Act, the Regional Court found that the particular seriousness of the accusations raised and the adverse effect they could have on the career of a professional football justified the sum of compensation granted.

On 26 January 2006 the applicants appealed against this judgment. They argued that the impugned article did not contain a statement of facts but merely a suspicion against A.T., D.G. and A.I. Moreover, the first and second applicant had fully complied with journalistic ethics. As K.E. and the applicants had acted as a team there was no need for further checking the information received and at that stage of the investigations there had also been no need to give the plaintiffs an opportunity to react to the information to be published.

On 6 April 2006 the Innsbruck Court of Appeal dismissed the appeal of the first and second applicant, but partially granted the appeal of the third applicant and reduced the amount of compensation to 12,000 EUR for each plaintiff. It found that the Regional Court had carefully weighed the arguments and had arrived at a correct and well reasoned judgment. It agreed with the Regional Court that the first and second applicant had not reported on a mere suspicion but had presented their allegations as facts which they had failed to prove.

B. Relevant domestic law

If a publication in the media, viewed objectively, constitutes defamation under Section 111 of the Criminal Code or an insult under Section 115 of the Criminal Code, the insulted person may claim non-pecuniary damages against the media owner, pursuant to Section 6 of the Media Act.

Section 111 of the Criminal Code, in so far as relevant, reads 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 make him contemptible or otherwise lower him in public esteem, shall be liable to imprisonment not exceeding six months or a fine (...)

2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine (...)

3. The person making the statement shall not be punished if it is proved to be true. As regards the offence 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."

Section 6 of the Media Act, at the time of the events, read as follows:

“6 (1) If in a medium the presence of the factual elements of the offence[s] of defamation [ ... .] is established, the person concerned has against the owner of the medium a claim for compensation of the prejudice suffered. ... ..”

COMPLAINT

The applicants complained under Article 10 of the Convention that their conviction of defamation and the order to pay compensation violated their right to freedom of expression.

QUESTION TO THE PARTIES

Has there been a violation of the applicants ’ right to freedom of expression, in particular their right to impart i nformation, contrary to Article 10 of the Convention?