EHRM, 02-11-2006, nr. 13071/03

On 17 August 2000 Mr Stadler brought private prosecution proceedings for defamation under the Media Act (Mediengesetz) as regards the statement:

On 29 May 2001 the St. Pölten Regional Court (Landesgericht) held a hearing. Mr Rosenstingl, who had been called as a witness, had refused to give evidence on the ground that he risked incriminating himself. According to the minutes, the applicant contested that Mr Rosenstingl was entitled to refuse giving evidence and requested the court to impose a fine on him. The Court dismissed the request for the taking of evidence, finding that it was irrelevant and that the case was ready for decision. It did not give any detailed reasons.

At the close of the hearing, the court gave judgment ordering the applicant to pay compensation of 15,000 Austrian schillings (ATS, that is about 1,090 euros (EUR)) to Mr Stadler and to publish the judgment.

In the Regional Court's view, the incriminated passage meant that Mr Stadler already new of Mr Rosenstingl's fraudulent transactions before November 1997. However, having regard to the evidence adduced in the criminal proceedings against Mr Rosenstingl, the court found that there was no indication that Mr Stadler knew before November 1997 that loans or guarantees of the Ring of Liberal Entrepreneurs had been transferred to Rosenstingl's firm. It followed from the minutes of the trial against Rosenstingl, that the latter had not claimed to have given all relevant documents to Mr Stadler, but had only stated to have met another FPÖ politician in Stadler's office and to have given documents to that politician.

Referring to Section 6 of the Media Act, the Regional Court found that the statement at issue fulfilled the elements of defamation (üble Nachrede) under Article 111 of the Criminal Code as it insinuated that Mr Stadler had remained inactive despite being aware of fraudulent transactions. Thus, it accused him of behaviour likely to lower him in public esteem. Although the incriminated passage purportedly cited statements of third persons, the applicant company remained responsible since it had failed to present these quotes neutrally without identifying itself with their content. The article's style and choice of wording did not fulfil the requirements of a neutral presentation. In any case, the quote was not correct as Mr Rosenstingl had not claimed to have given Mr Stadler all relevant documents nor had it been shown that the latter knew otherwise about the transactions. The applicant had, thus, failed to prove the truth of the impugned statement.

On 18 September 2002 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal.

It noted the applicant's argument that the article was of a satirical nature and that the reader, expecting a certain degree of exaggeration, concluded in essence that Mr Stadler had known more than he admitted, or could have known more had he made the necessary investigations on the basis of the documents given to him.

The Court of Appeal conceded that D.G.'s court room reports differed from usual reports of this genre. His irony and sarcasm were well-known and appreciated by the reader. In the present case however, the issue was not whether the author had made use of some degree of exaggeration. He had simply reported facts which were not true, as no documents at all had been handed over to Mr Stadler. Furthermore, the court confirmed the Regional Court's view that the article had not quoted third persons' statements correctly and neutrally.

Finally, the Court of Appeal confirmed that the Regional Court had rightly granted Mr Rosenstingl a right to refuse to give evidence in accordance with the relevant provisions of the Code of Criminal Procedure. As the article at issue had reported on the criminal proceedings against Mr Rosenstingl, it was likely that he would, inter alia, have to give evidence as regards his fraudulent transactions. He therefore risked incriminating himself as regards the charges against him.

The decision was served on the applicant's counsel on 8 October 2002.

On 14 October 2002 Mr Stadler filed an action under Section 78 of the Copyright Act (Urheberrechtsgesetz) and under Article 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) requesting the applicant to refrain from publishing his picture accompanied by the incriminated text, to publish the judgment and to pay him EUR 2,000 as compensation for non-pecuniary damage. He also requested a preliminary injunction.

On 22 November 2002 the applicant and Mr Stadler appeared before the Vienna Commercial Court (Handelsgericht) and concluded a partial agreement. The applicant undertook to refrain from publishing Mr Stadler's picture accompanied by any text similar to the impugned statement, and to publish the agreement. The court therefore limited the hearing to the issue of compensation.

On 3 December 2001 the Vienna Commercial Court ordered the applicant to reimburse Mr Stadler's costs as regards the part of his claim that was covered by the partial agreement, but dismissed the latter's claim for compensation.

The Commercial Court, referring to the Supreme Court's established case-law as regards the binding force of a conviction in subsequent civil proceedings (see relevant domestic law and practice, below), noted that the publication of Mr Stadler's picture accompanied by the impugned statement which fulfilled the objective elements of defamation, had violated his legitimate interests within the meaning of Section 78 of the Copyright Act. He was, therefore, in principle entitled to receive compensation if the non-pecuniary damage suffered went beyond the annoyance usually caused by the unlawful publication of a picture. However, he had failed to substantiate that he had suffered any such damage.

On 16 October 2003 the Vienna Court of Appeal dismissed Mr Stadler's appeal.

The Government argued that the applicant could not claim to be victim as regards the proceedings under the Civil Code and the Copyright Act in which it entered into a partial settlement with Mr Stadler (see paragraph 20 above). Although the Supreme Court's case-law concerning the binding effect of penal-law decisions on civil-law courts may have been one of the reasons for entering into a settlement, the applicant company would have been free to argue that the publication of Mr Stadler's picture did not violate Section 78 of the Copyright Act. Since it chose to enter into a settlement it could not complain before the Court that its right to freedom of expression had been violated.

The applicant company argued that, in the light of the Supreme Court's case-law, it had no prospects of success in the civil proceedings following its conviction under the Media Act.

The Court reiterates that where an applicant concludes a settlement in the domestic proceedings and renounces further use of local remedies, he or she will generally no longer be able to claim to be a victim in respect of those matters (see Hay v. the United Kingdom (dec.), no. 41894/98, ECHR 2000-XI; Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V; and Nikishina v. Russia (dec.), no. 45665/00, 12 September 2000).

In the proceedings under the Civil Code and the Copyright Act, the applicant concluded a partial settlement in which it undertook to refrain from publishing Mr Stadler's picture accompanied by any text similar to the impugned statement. By concluding that settlement, the applicant accepted the limitation of its right to freedom of expression and renounced to use available remedies in respect of the complaint now before the Court.

In these circumstances, the Court considers that as far as the civil proceedings are concerned the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention. Insofar, its complaint has to be rejected as being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention.

As far as the applicant's complaint relates to the proceedings under the Media Act, the Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The applicant claimed a total amount of 35,089.08 euros (EUR) in respect of pecuniary damage. This sum is composed of EUR 1,520.64 for the publication of the judgment, EUR 1,090.09 for compensation paid to Mr Stadler and EUR 11,078.35, inclusive of value-added tax (VAT), for reimbursement of the latter's legal costs. Moreover, the sum contains an amount of EUR 21,400 which the Vienna Court of Appeal, by decision of 26 November 2003, ordered the applicant to pay for failure to publish the judgment given in the proceedings under the Media Act in correct form. The applicant did not claim any compensation for non-pecuniary damage.

The Government commented that the applicant had included surcharges in respect of the publication of the judgment which it had failed to justify. Moreover, the amount of EUR 21,400 imposed as a fine by in separate enforcement proceedings was not to be reimbursed since it had been caused by the applicant's failure to publish the judgment properly. Finally, they argued that the costs reimbursed to Mr Stadler were excessive and were not properly itemised.

The Court observes that the documents submitted by the applicant do not allow verification of the correctness of the surcharges claimed in respect of the publication of the judgment. Furthermore, it agrees with the Government's view that the fine of EUR 21,400 is not to be reimbursed and that the costs reimbursed to Mr Stadler are excessive. Making an assessment on an equitable basis, the Court awards the applicant EUR 8,000 inclusive of VAT, in respect of pecuniary damage.

The applicant also claimed EUR 6,861.32, inclusive of VAT, for the costs and expenses incurred before the domestic courts and EUR 5,361.75, inclusive of VAT, for those incurred before the Court.

The Government asserted that the bill of fees submitted by the applicant in respect of the domestic proceedings was not detailed enough to verify whether the fees had been calculated correctly. In any case, the total amount claimed was excessive. As to the costs of the Convention proceedings, the Government contended that the rate applied was incorrect and that, consequently, the amount claimed was excessive.

According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.

In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award EUR 5,000 in respect of costs incurred in the domestic proceedings and EUR 3,000 in respect of costs incurred in the Convention proceedings.

In sum, the Court awards a total amount of EUR 8,000, inclusive of VAT, under the head of costs and expenses.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.