FIRST SECTION

DECISION

Application no. 28852/04 
by Hans DICHAND 
against Austria

The European Court of Human Rights (First Section), sitting on 21 September 2006 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr L. Loucaides
 Mrs F. Tulkens
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges 
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 27 July 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, Mr Hans Dichand, is an Austrian national who was born in 1921 and lives in Vienna. He is represented before the Court by Gheneff – Rami Rechtsanwälte OEG, a partnership of lawyers practising in Vienna. The respondent Government are represented by their Agent, Mr Ferdinand Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

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

The applicant is the publisher of a newspaper, the “Neue Kronen Zeitung”.

In October 2003 he requested an injunction against the Süddeutsche Zeitung GmbH, the owner of the “Süddeutsche Zeitung”, because in its issue of 24 September 2003 the applicant’s newspaper had been referred to as gutter press (Gossenblatt).

On 27 November 2003 the Vienna Regional Criminal Court found against the defendant, ordered the confiscation (Einziehung) of that issue, publication of the judgment and reimbursement of the procedural costs.

On 5 April 2004 the applicant asked the Regional Court to fix the costs the defendant had to reimburse the amount of 983.06 euro (EUR).

On 25 May the Regional Court fixed the costs in the amount of EUR 938.32 and dismissed the remainder of the claim.

The Süddeutsche Zeitungs GmbH appealed on 9 June 2004. This appeal was not served on the applicant.

On 9 July 2004 the Vienna Court of Appeal granted the appeal and modified the cost order. It now fixed the costs to be reimbursed at EUR 46.14. It noted that the Süddeutsche Zeitungs GmbH had already reimbursed the applicant costs in the amount of EUR 873.57. Therefore, this sum had to be deducted. Only the amount charged for the cost order itself could not be taken into account as the costs to be reimbursed were less than EUR 100.

On 25 April 2006 the Supreme Court (Oberster Gerichtshof), upon the Procurator General’s plea of nullity for the preservation of law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes), quashed the decisions of the Regional Court and the Court of Appeal, except the part by which reimbursement to the applicant of the amount of EUR 46.14 had been granted, and remitted the case to the Regional Court. It found that the court’s failure to transmit the opponent party’s appeal to the applicant and give him an opportunity to comment thereon was a breach of Article 6 § 1 of the Convention and not in line with the Supreme Court’s case-law on that matter. It instructed the Vienna Court of Appeal to decide again on the appeal after having it forwarded to the applicant and having given him the possibility to submit comments.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that the principle of equality of arms was violated in the proceedings on the defendant’s appeal of 9 June 2004 against the cost order as he had not been informed of this appeal and thus had no possibility to react thereto.

THE LAW

The Court observes that by a fax of 13 June 2006 the Government informed the Court that on 25 April 2006 the Supreme Court had set aside the decision of the Vienna Court of Appeal of 9 July 2004 and had remitted the case to that court for deciding again on the cost appeal.

The Court reiterates the terms of Article 37 § 1 of the Convention which, as far as material, reads as follows:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (...)

(b)  the matter has been resolved; or

...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

In the present case, the Court considers that the matter has been resolved since the applicant’s complaint relates to proceedings which have been quashed by the Supreme Court, on the ground that Court of Appeal’s failure to transmit the opponent party’s appeal to the applicant and give him an opportunity to comment thereon was a breach of Article 6 § 1 of the Convention and not in line with the Supreme Court’s case-law on that matter. New appeal proceedings will now be conducted by the Court of Appeal. The Court further considers that respect for human rights as defined in the Convention does not require a continuation of the examination of the case. It therefore decides to strike the application out of its list of cases in accordance with Article 37 § 1 (b) of the Convention.

Accordingly, the case should be struck out of the list.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.

Søren Nielsen Christos Rozakis 
 Registrar President

DICHAND v. AUSTRIA DECISION


DICHAND v. AUSTRIA DECISION