EHRM, 02-11-2006, nr. 60899/00

On 26 October 1997 a group of homosexuals, the ‘Austrian Forum of Gays and Lesbians’ (‘Österreichisches Schwulen- und Lesbenforum’, ÖSLF) held a demonstration in St. Pölten, at which the editors of the magazine ‘Der 13.— Zeitung der Katholiken für Glaube und Kirche’ (The 13th — Newspaper of Catholics for Faith and Church) took pictures of participants and published them together with an article written by K. D. in its issue of 13 November 1997. That article reflected a negative and hostile position towards homosexual relationships, suggesting, inter alia, that ‘they [homosexuals] ought to be disciplined ‘gender-specifically’ with whips and pizzles! (sie gehören ‘geschlechtsspezifisch’ mit Peitsche und Ochsenziemer zurechtgewiesen)’ and that ‘nazi-methods should be applied to them!’ It read further that ‘homosexuals now crawl like rats out of their holes and are fed ‘lovingly’ by politicians and church officials’.

Subsequently 44 homosexual persons filed a private prosecution (Privatanklage) against the author K. D. for defamation and a compensation claim under the Media Act against the owner and publisher of ‘Der 13.’

On 13 July 1998 the Linz Regional Court (Landesgericht) found that certain passages of the article constituted the offence of insult (Beleidigung) under Section 115 of the Criminal Code (Strafgesetzbuch) and ordered the owner and publisher of ‘Der 13.’ to pay compensation to four plaintiffs who could be identified on the pictures. It dismissed the compensation claim as regards the other plaintiffs and acquitted K. D. The court found that K. D. had not mentioned any of those plaintiffs' name in his article and that it could not be established that he had known that his text would be illustrated by these pictures. On pages 14–15 the judgment contained an excursus about the nature of homosexuality, referring to a book called ‘Lexicon of love (Lexikon der Liebe)’ and the results of an opinion survey on this topic. It read, inter alia, that ‘in truth, homosexuality includes also the lesbian world and, of course, that of animals’, which was followed by a long passage describing in detail examples of same-sex practices among different animals.

Subsequently, politicians and representatives of the Austrian Forum of Gays and Lesbians publicly criticised the deciding judge K.-P. B. for the text and style of this judgment, which was documented in a number of press releases by the Austrian Press Agency (APA) of 13 July, 1 and 2 September 1998, including an article published by ‘Der Standard’ with the title ‘The judge and the dear cattle (Der Richter und das liebe Vieh)’ on 1 September 1998.

On 2 September 1998 ‘Der Standard’ published two articles written by the first applicant, whereby the first one referred to the commentary (Kommentar) at issue on page 32, which read as follows:

On 18 September 1998 judge K.-P. B. decided that the above-mentioned excursus on pages 14–15 be taken out of the judgment of 13 July 1998.

Subsequently disciplinary proceedings were opened against judge K.-P. B. On 20 July 1999 the Innsbruck Court of Appeal (Oberlandesgericht), acting as disciplinary authority, imposed the disciplinary penalty of a warning. On 20 September 1999 the Supreme Court (Oberster Gerichtshof) confirmed this decision.

In the meantime, judge K.-P. B. filed a private prosecution against the first applicant for defamation (Üble Nachrede) and a compensation claim under the Media Act against the second applicant on account of the above article published on 2 September 1998.

On 29 June 1999 the St. Pölten Regional Court convicted the first applicant of defamation under Section 111 §§ 1 and 2 of the Criminal Code and imposed a fine of ATS 13,500 (EUR 981) on him, suspended on one year's probationary period. It also ordered the second applicant to pay ATS 50,000 (EUR 3633) in compensation to judge K.-P. B. under Section 6 of the Media Act and to publish the judgment. It found in particular that the following statements were capable of lowering judge K.-P. B. in the public esteem, constituting the slanderous reproach that he had violated his obligations under the law and the rules on professional conduct (Gesetzes- und Standespflichten), required of a judge:

The Court noted, inter alia, that even if the reasoning of that judgment contained irrelevant annotations, it could not be inferred from it that the private prosecutor K.-P. B. believed that different rights were accorded to homosexuals and heterosexuals, nor that he had compared homosexuals with animals or that he had put them on an equal footing.

On 11 November 1999 the applicants appealed against this judgment, claiming that the article at issue criticised exclusively the reasoning of the judgment and not the way in which judge K.-P. B. had conducted the trial. The statements were permissible value judgments based on facts and, thus, protected under Article 10 of the Convention. Arguing that journalistic liberty also allowed a certain degree of exaggeration and even provocation, and considering the public discussion caused by the reasoning of the judgment not only in various media but also among judges, the polemical style of the article was not disproportionate either.

On 16 February 2000 the Vienna Court of Appeal dismissed the applicants' appeal and confirmed the Regional Court's judgment. It found that an average reader, interested in the subject-matter, would understand by the first statement that the private prosecutor had grossly violated fundamental procedural rights, such as the principles of impartiality and adversarial hearings, which were regularly breached in medieval witch trials. Thus, this reproach of violating the rules on professional conduct required of a judge consisted in concrete facts, which were not proved true by the records of the trial. The second statement was not only a value judgment, but also insinuated that judge K.-P. B. had sided with the accused K. D. and had, thus, been partial. As it was not mentioned in the article that judge K.-P. B. had impartially conducted the trial and that only certain passages of the judgment were subject to that criticism, the statements could not be considered as value judgments based on facts. Rather, in their context, they were disparaging statements of facts, falling outside the scope of protection of Article 10 of the Convention. Since certain passages of the above judgment proved to be legally superfluous, as affirmed by the private prosecutor's decision of 18 September 1998 taking them out, they could have been subject to (fair) comment.

The Court notes that it is common ground between the parties that the first applicant's conviction and the order issued against the second applicant to pay compensation constituted an interference with their right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.

An interference contravenes Article 10 of the Convention unless it is ‘prescribed by law’, pursues one or more of the legitimate aims referred to in paragraph 2 and is ‘necessary in a democratic society’ for achieving such an aim or aims.

As pecuniary damage the second applicant sought EUR 3,633.64, corresponding to costs awarded to judge K.-P. B. by the Austrian courts. It further requested reimbursement of the 50,000 Austrian schillings (EUR 4,890.52) paid to K.-P. B. by virtue of the court sentence, and of EUR 1,800.80 for the publication of the judgment in its newspaper. It argued that this sum corresponds to its fees for publications in its newspaper at the relevant time and joined a copy of its price-list. The first applicant sought EUR 7,000 in respect of non-pecuniary damage for loss of reputation resulting from the judgment against him and, as pecuniary damage, EUR 152.61 for court fees he had to pay in respect of the domestic proceedings.

As regards the claims for pecuniary damage, the Government argued that the second applicant's claim for the costs of the publication of the judgment was not sufficiently substantiated, as, in their view, reference to the price list for advertisement space in their newspaper was not conclusive. In respect of non-pecuniary damage, the Government submitted that the first applicant had failed to substantiate his claim, as a mere reference to awards in other cases was not sufficient.

Having regard to the direct link between the second applicants' claim concerning reimbursement of K.-P. B.'s costs in the domestic proceedings, the compensation it had to pay to him and the violation of Article 10 found by the Court, the second applicant is entitled to recover the full amount. The same applies for the cost order issued against the first applicant in the amount of EUR 152.61. As regards the second applicant's claim for reimbursement of the costs of the publication of the judgment in its newspaper, the Court observes that the publication has actually taken place, that it was the consequence of the judgment in respect of which the Court has found a violation of Article 10 and that the second applicant has shown sufficiently how it calculated the amount which, in itself, does not appear unreasonable. Therefore, the Court also awards this claim in full. Accordingly, under the head of pecuniary damages it awards EUR 152.61 to the first applicant and EUR 10,324.96 to the second applicant.

As regards the first applicant's claim for non-pecuniary damage, the Court considers that his conviction entered in the criminal record entailed adverse effects and awards him, on an equitable basis, EUR 5,000 under the head of non-pecuniary damage (see Scharsach and News Verlags-gesellschaft v. Austria, no. 39394/98, § 51, ECHR 2003-XI; and, mutatis mutandis, Nikula v. Finland, no. 31611/96, § 65, ECHR 2002-II).

The second applicant sought reimbursement of EUR 3,971.24, exclusive of turnover tax, for costs and expenses incurred in the domestic proceedings. It further requested EUR 4,956, exclusive of turnover tax, for costs and expenses incurred in the Strasbourg proceedings.

The Government submitted that the costs claimed were excessive. As regards the costs claim for the domestic proceedings, they submitted that one request for adjournment of the proceedings, made by the second applicant for which EUR 30.81 were claimed, cannot be considered a step necessary in proceedings attempting to prevent the violation of the Convention found and should therefore not be granted by the Court. As regards the Convention proceedings, the Government argued that the basis for calculation was too high and that when the applicants submitted their claims under Article 41, they merely re-submitted a compilation of claims they had already submitted earlier. Claiming EUR 991.30 for that step only was excessive. In their view an amount of EUR 2,173.95 for costs incurred in the Convention proceedings was justified.

The Court finds the claim for costs incurred in the domestic proceedings reasonable and awards the full amount of EUR 3,971.24. As regards the Convention proceedings the Court, making an assessment on an overall basis and having regard to awards in comparable cases, awards 4,000 EUR under this head.

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.