FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30547/03 
by Johann FERIHUMER 
against Austria

The European Court of Human Rights (First Section), sitting on 14 February 2006 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner, 
 Mr K. Hajiyev, judges, 
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 13 September 2003,

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, Johann Ferihumer, is an Austrian national, who was born in 1945 and lives in Waizenkirchen. He was represented before the Court by Mr B. Wageneder, a lawyer practising in Ried. The respondent Government are represented by Ambassador Ferdinand 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.

The applicant is the father of a pupil of a secondary school in Grieskirchen (Bundesoberstufenrealgymnasium) and vice-chairman and recording clerk (Schriftführer) of the parents’ association (Elternverein) at this school.

In protest against the government’s cuts in the education budget, the teachers of this school decided, together with the teaching staff of two other schools, to reduce and shorten school trips for the school year 2001/2002.

The pupils and some parents, including the applicant, did not agree with these measures.

The applicant called for a vote by the School Committee (Schulgemeinschaftsausschuss) of the Grieskirchen secondary school on the question whether the class his son was attending, should go on a one week trip to Tuscany or Prague. The School Committee which is composed of three representatives of the teachers, three parents and three pupils and the director of the school, represents parents and pupils in certain school matters.

The meeting at which the School Committee should have to vote on the question, after having been once postponed because one of the teachers’ representatives could not participate, was finally fixed for 22 January 2002.

On 22 January 2002, before the meeting of the School Committee, the chairman of the parents’ association on behalf of the parents, the pupils’ spokesperson on behalf of the pupils and two representatives of the teachers signed a compromise which provided for only a one-day school excursion per class during the school year 2001/2002 and for compensatory school trips in autumn 2003.

On this day the applicant stated before a journalist of the “Oberösterreicher Rundschau”, a local newspaper for Upper Austria, that this conflict (between the teachers, parents and pupils concerning the boycott measures) was carried out to the detriment of the pupils and that the teachers were applying pressure on the pupils and parents to an intolerable extent and that this amounted in fact to an abuse of their authority.

The statement was published in the edition of the “Oberösterreicher Rundschau” of 24 January 2002.

The majority of teachers of the Grieskirchen secondary school brought proceedings for insult and damage of their reputation with the Peuersbach District Court.

The Peuersbach District Court heard the applicant, the teachers, the spokesperson of the pupils, the chairman of the parents’ association and several other witnesses.

On 9 October 2002, it ordered the applicant to refrain from repeating the statement that the teachers were applying pressure on the pupils and parents to an intolerable extent and that this amounted in fact to an abuse of their authority.

It noted that the statement was an insult and a defamation within the meaning of Article 1330 of the Civil Code. The applicant had to accept the most unfavourable interpretation of this statement which meant that the teachers had used unlawful and unobjective means in order to make parents and pupils agree to the boycott measures. The applicant had, however, failed to supply any evidence to prove this reproach. The court also noted that it was true that, in the course of time the atmosphere between the pupils and teachers at the Grieskirchen secondary school had been strained. The spokesperson of the pupils had complained that the teachers did not take her seriously and avoided any discussion about the boycott measures with her. She had, therefore, resigned from her function as spokesperson. The court further observed that the conflicting interests of teachers, parents and pupils in regard of the boycott measures naturally caused tensions. There was, however, no indication that the teachers had used unlawful and unobjective means, such as, for example, the use of their authority to assign marks, in order to make the parents and pupils agree to the compromise. It was, on the contrary, because of the teachers’ unbending attitude concerning the carrying out of boycott measures, because they thought that there was no use in forcing the teachers to go on school trips and because they hoped to improve the atmosphere at the school that pupils and parents had finally resigned and agreed to the compromise.

The court dismissed the teachers’ further request for an injunction as regards the applicant’s statement that the conflict was detrimental to the pupils.

The applicant appealed against this decision. He submitted inter alia that he had alluded to the subtle measures the teachers had employed in order to reach a compromise, such as their threat to boycott the meeting of the School Committee and their tactics to undermine the authority of the pupils’ spokesperson. This was contrary to their official duties and, therefore, unlawful. He further referred their successful tactics to delay the meeting of the School Committee, the testimony of some pupils who had stated that they had felt under pressure and the fact that, in the context of the discussions concerning the boycott measures, both the pupils’ spokesperson and the chairman of the parents’ association had resigned from their functions. The statement of issue was a value judgment with sufficient factual basis and was protected by his right to freedom of expression under Article 10 of the Convention. From the context of the situation in which the statements had been made, it was clear that he had referred to the pressure which had led to the signing of a compromise. Neither the concerned pupils, nor the parents had understood his criticism to that effect that the teachers had applied psychical or verbal violence or had applied pressure by their authority to assign marks. Furthermore, the teachers had themselves, attracted the attention of the public by their boycott measures which had provoked criticism and resistance.

On 5 February 2003 the Wels Regional Court dismissed the appeal. It noted that the statement at issue constituted a statement of fact susceptible of proof. The applicant had failed to prove that the statement was true. The injunction at issue did, therefore, not violate the applicant’s right to freedom of expression.

This decision was served on the applicant’s counsel on 13 March 2003.

COMPLAINT

The applicant complained under Article 10 of the Convention that the Austrian court’s decisions, ordering him to refrain from making the statement that the teacher were applying pressure on the pupils and parents to an intolerable extent and that this amounted in fact to an abuse of their authority, violated his right to freedom of expression under Article 10 of the Convention.

THE LAW

The applicant complained about violation of his right to freedom of expression 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 contended that the injunction issued against the applicant constituted an interference with his rights under Article 10 of the Convention which was, however, justified under § 2 of this provision. It had a legal basis, namely Section 1330 of the Civil Code, and pursued the legitimate aim of protection of the reputation of others. As to the necessity of the interference, they argued that the Austrian courts classified the applicant’s statements as statements of facts. An essential element for this classification was that the applicant had not given any explanation for his statements which was thus not discernible as value judgment. There was no factual basis to enable the reader to evaluate himself why the applicant had come to his conclusions. Therefore, it appeared legitimate that the Austrian courts attributed to the statements at issue the meaning usually conveyed by similar reproaches, namely that the plaintiffs had been guided by improper and unlawful motives. The applicant himself had endorsed this interpretation as, in his appeal with the Regional Court, he had argued why the teachers’ conduct had allegedly been unlawful. However, the Austrian courts, after comprehensive evaluation of all evidence, came to the conclusion that these accusations were factually incorrect. The measures taken by the Austrian courts were proportionate, as the applicant was merely ordered to refrain from making further such statements which did not hinder him to express his opinion in other less defamatory or insulting words. The Government finally argued that, even assuming that the statements at issue were value judgments, the interference was proportionate as the applicant’s statements were unsubstantiated and the details of the underlying conflict were not known to the public. Such extremely harsh, excessive and generalising criticism was not justified by the applicant’s interest in several-day excursions abroad.

The applicant argued that the statements at issue amounted to value judgments which had sufficient factual basis. He had made the statements as immediate reaction upon the compromise signed by the teachers, parents and pupils. Having regard to his commitment for the pupils’ case, he had reasons for his indignation. As regards the factual basis of his statements, the applicant referred to the fact that the pupils’ spokesperson resigned from her function, that there had been tensions in the school and that the meetings of the determining School Committee were scheduled. The Austrian courts’ findings that, in doubt, the applicant had to accept the most unfavourable interpretation of this statement was contrary to his right to freedom of expression. Moreover, 40 teachers had already attempted to institute criminal proceedings against him before the civil proceedings at issue. These proceedings had been cancelled on formals grounds and it had, therefore, been possible that a criminal sanction was issued on him as well.

The Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits.

Søren Nielsen  Christos Rozakis  
 Registrar President

FERIHUMER v. AUSTRIA DECISION


FERIHUMER v. AUSTRIA DECISION