FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13521/04 
by GRÜNER KLUB IM RATHAUS 
against Austria

The European Court of Human Rights (First Section), sitting on 1 February 2007 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr L. Loucaides
 Mrs N. Vajić
 Mr A. Kovler
 Mrs E. Steiner
 Mr S.E. Jebens, 
 Mr G. Malinverni, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 15 April 2004,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Grüner Klub im Rathaus, is the fraction of an Austrian party to the Vienna Regional Parliament (Landtag). It was represented before the Court by Mrs M. Windhager, a lawyer practising in Vienna. The respondent Government were represented by Mr F. Trauttmansdorff, Head of the International law Department at the Federal Ministry for Foreign Affairs.

The circumstances of the case

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

In the autumn of 2000 a police officer, Mr Kleindienst, revealed that he and some colleagues had repeatedly transmitted data from the central police computer to officials of the Austrian Freedom Party (FPÖ). Subsequently criminal investigations were opened against several persons. In the autumn of 2002 the Vienna Regional Court (Landesgericht) convicted Mr Kleindienst and the FPÖ official Mr Kreiβl and sentenced them to six months’ imprisonment suspended on probation. This judgment was later, in February 2004, quashed upon appeal and Mr Kleindienst and Mr Kreiβl were acquitted.

In the meantime, after the first instance judgment, the applicant issued, on 17 September 2002, a press release which read as follows:

“Member of the Green Party to the police information scandal:”[A] gift and [a] shame.”

Maria Vassilakou: Austria desperately needs a new Minister of Justice

Vienna (Member of the Green Party): “A shame. This judgment quite clearly bears the hallmark of Kreiβl’s fellow party member, the Minister of Justice, Böhmdorfer” so [says] the Green Member of the City Council Maria Vassilakou in view of the low [sentences of the] judgments against Kleindienst and Kreiβl. “If one considers the genesis of this incredible police information scandal, one has to wonder very much that after a dozen of suspects, month-long investigations and a long trial only this [judgment] remains.”

Vassilakou concludes: “An embarrassing judgment which lets down the persons who have been spied upon and opens the floodgates for further abuse of personal data by ‘political engaged’ or simply ‘currupt’ executive officers”

[Grüne zu Spitzelaffäre:”Geschenk und Schande”

Maria Vassilakou: Österreich braucht dringend neuen Justizminister.

Wien (Grüne) “Eine Schande. Dieses Urteil trägt ganz klar die Handschrift von Kreiβels Parteifreund Justizminister Böhmdorfer”, so die Grüne Stadträtin Maria Vassilakou in Anbetracht der geringen Urteile gegen Kreiβl und Kleindienst. “Betrachtet man die Genesis dieser unglaublichen Spitzelaffäre wundert man sich schon sehr, wenn von mehreren Dutzend Verdächtigen, monatelangen Untersuchungen und ein langwieriger Prozess lediglich dies übrig bleibt.”

Vassilakou abschlieβend: “Ein peinliches Urteil, das die bespitzelten Personen im Regen stehen lässt und Tür und Tor für weiteren Missbrauch von vertraulichen Personendaten durch ‘politisch engagierte’ oder schlicht ‘käufliche’ Exekutivbeamten öffnet”]

Mr Böhmdorfer subsequently brought proceedings under section 6 of the Media Act (Mediengesetz) with the Vienna Regional Court (Landesgericht für Strafsachen).

On 28 November 2002 the Regional Court, having held on oral hearing, found that the statement “A shame. This judgment quite clearly bears the hallmark of Kreiβl’s fellow party member, the Minister of Justice, Böhmdorfer” amounted to defamation within the meaning of Articles 111 and 297 of the Criminal Code (Strafgesetzbuch). It ordered the applicant under section 6 of the Media Act to pay compensation to Mr Böhmdorfer in the amount of 3,000 euros (EUR). It further ordered it to publish the judgment.

The court noted that the impugned statement read in its context suggested that Mr Böhmdorfer had abused his authority as Minister of Justice to influence the deciding court. However, the applicant had failed to prove that this had indeed been so.

The applicant appealed and submitted in particular that the impugned statement amounted to a value judgment on a political issue and it was therefore, in any event, not possible to prove its veracity. Furthermore, there had been some factual basis for the statement. The applicant referred in this regard to the general political background of the “police information scandal”, the conduct of the criminal investigations and to the fact that Mr Böhmdorfer at the beginning of the investigations had refused all reproaches of illegal data consulting. The applicant finally contended that the court should have interpreted the statement in a broader sense, meaning that the judgment against Mr Kleindienst and Mr Kreiβl corresponded to Mr Böhmdorfer’s political mindset and style.

On 8 September 2003 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. It found that the impugned statement, read in its context, did not allow any other conclusion to be drawn than that Mr Böhmdorfer had unlawfully influenced the deciding judge in the criminal proceedings. However, the evidence adduced by the applicant, namely general press releases relating to the conduct of the criminal investigations in the police information case, Mr Böhmdorfer’s statements in the context of these investigations and the fact that Mr Böhmdorfer had himself been criticised for allegedly having used illegal obtained material, did not give any indication for the veracity of this allegation. The applicant’s right to freedom under expression under Article 10 of the Convention did not protect false statements of facts. Moreover, the applicant had not even given Mr Böhmdorfer the opportunity to comment.

This judgment was served on the applicant’s counsel on 22 October 2003.

COMPLAINT

The applicant complained under Article 10 of the Convention about the above judgments.

THE LAW

The applicant complained about a breach of its rights under Article 10 of the Convention, which, as far as relevant, reads as follows:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers....

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The Government contested this complaint. They contended that there had been interference with the applicant’s rights under Article 10 of the Convention which was, however, prescribed by law and necessary in democratic society within the meaning of Article 10 § 2. The Austrian courts qualified the impugned statement as false statement of fact because it incorrectly suggested that Mr Böhmdorfer had abused his position as Minister for Justice to influence a deciding court in its sentence. The courts set out extensively that no other conclusion as to its meaning could be drawn from the impugned statement and its context. By finding so, the courts did not deprive the applicant of its right to report on the matter at issue in another manner and to voice even sharp criticism. In the present case, however, the interest of Mr Böhmdorfer not to be subject of a massive incorrect reproach outweighed the interest of the applicant in protection of its right under Article 10 of the Convention. The Government further pointed out that the impugned statement bore considerable weight as it implicitly called the independence and credibility of the Austrian judiciary into question. Even if the Court was to consider the impugned statement as value judgment, the interference appeared justified since the statement had no factual basis. They finally submitted that in the view of the low sentence - the applicant was ordered to pay compensation in the amount of eight percent of the highest possible amount - the interference was also proportionate.

The applicant contested that the impugned interference had been necessary in a democratic society. It submitted that its members were political opponents to Mr Böhmdorfer’s party, the FPÖ. Mr Kleindienst and Mr Kreiβl had repeatedly transmitted data concerning suspects to the FPÖ on the purpose that they be used in the latter’s election campaign. Criminal investigations were introduced against several persons, amongst them Mr Böhmdorfer who was also attacked by critics because of many failures of these preliminary investigations. These facts constituted sufficient factual basis for the impugned statement. The statement, in the light of its wording and the general context of the press release, had to be understood as suggesting that the judgment against Mr Kleindienst and Mr Kreiβl was in accordance with Mr Böhmdorfer’s political mindset and style. This constituted a value judgment addressing a politician and concerning a subject of important public interest, which was furthermore based on information already known to the general public.

The Court finds that the contested judgments interfered with the applicant’s right to freedom of expression as guaranteed by Article 10 § 1 of the Convention. Furthermore, it is not disputed that the interference was prescribed by law and pursued a legitimate aim, namely the protection of the rights and reputation of others. The parties’ arguments concentrate on the question whether the interference was necessary.

In this regard, the Court refers to its well-established case-law according to which the test of “necessity in a democratic society” requires it to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see The Sunday Times v  the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 38, § 62). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII; Jerusalem v. Austria, no. 26958/95, § 33, ECHR 2001-II).

In the present case, the applicant issued a press release concerning statements made by one of its members, the green politician Mrs Vassilakou, concerning the conviction of two persons in the context of the “police information scandal”. The Court notes that this affair, which involved FPÖ politicians, was certainly an issue of public and political interest. In this connection, the Court reiterates that there is little scope for restrictions on political speech or questions of public interest (Nilsen and Johnsen, cited above, § 46).

The press release reported Mrs Vassilakou saying that the judgment issued in this affair quite clearly bore the hallmark of the Minister of Justice, Mr Böhmdorfer. The domestic courts qualified this statement as a statement of fact which suggested that Mr Böhmdorfer had illegally abused his powers and influenced the deciding judge. The Government agreed with this assessment, whereas the applicant submitted that the statement should have been qualified as a value judgment which merely expressed the opinion that the sentence against Mr Kleindienst and Mr Kreiβl corresponded to Mr Böhmdorfer’s political mindset and style.

The Court does not adhere to the applicant’s argument as to the interpretation of the impugned statement. Like the domestic authorities, it considers that the expression at issue, stating that the criticised judgment had been marked by Mr Böhmdorfer, undoubtedly suggested the latter’s interference with the judicial proceedings, a serious accusation as Mr Böhmdorfer was then Minister of Justice. The Court’s view in this regard is further corroborated by the text of the press release’s heading which claimed that Austria was in desperate need of a new Minister of Justice.

The Court next notes that after taking of evidence the domestic courts found that the applicant’s accusation was not supported by any facts. The Court sees no reason to depart from these findings. Like the domestic courts, it considers the applicant’s arguments concerning the preliminary criminal investigations in the “police-information affair” not relevant for the justification of the impugned statement which concerned the subsequent judicial proceedings. It follows that, even if the impugned statement was to be considered as a value judgment, as is the applicant’s proposition, it could not be considered as fair comment, as it lacked a sufficient factual basis (see Jerusalem v. Austria, cited above, § 45).

In the light of the above, the Court is satisfied that, in finding that the interest in protecting Mr Böhmdorfer’s reputation outweighed the applicant’s freedom of expression, the Austrian courts’ decisions were based on reasons which could reasonably be regarded as relevant and sufficient. It concludes that the interference with the applicant’s freedom of expression was not disproportionate to the aim of protecting the reputation or rights of others, within the meaning of § 2 of Article 10 of the Convention.

It follows that the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application inadmissible.

Søren Nielsen  Christos Rozakis  
 Registrar President

GRÜNER KLUB IM RATHAUS v. AUSTRIA DECISION


GRÜNER KLUB IM RATHAUS v. AUSTRIA DECISION