Oostenrijk veroordeeld door Mensenrechtenhof wegens smaadproces tegen katholiek opinieblad (en)

The European Court of Human Rights has today notified in writing its Chamber [1] judgment in the case of Albert-Engelmann-Gesellschaft mbH v. Austria (application no. 46389/99).

The Court held, by five votes to two, that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant company 10,387.77 euros (EUR) for pecuniary damage and EUR 9,919.99 for costs and expenses. It further held, unanimously, that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant company. (The judgment is available only in English.)

• 1. 

  Principal facts

The applicant, Albert-Engelmann-Gesellschaft mbH, is the owner and publisher of the magazine "Der 13. - Zeitung der Katholiken für Glaube und Kirche" (The 13th - Newspaper of Catholics for Faith and Church), based in Austria.

On 13 November 1996 the magazine published various letters about the Church Referendum Movement. One of the letters mentioned Mr Paarhammer (then Vicar General (Generalvikar) of the Archdiocese of Salzburg, member of the Salzburg Cathedral Chapter (Domkapitel) and Professor of Canon Law at the Salzburg University), suggested that he was a "rebel" and "critical of the church" and reproached him for having "publicly criticised and disparaged the Pope in an extremely offensive manner". It also expressed the view that priests who were critical of the church should be removed from all influential positions and those truly loyal to the Pope and the church appointed in their place.

The allegations related to a press release issued by the Cathedral Chapter in December 1988 and a radio interview given by Mr Paarhammer in January 1989 in which he had said, among other things, that the Holy See's proceedings concerning the succession of the Archbishop of Salzburg had put the Cathedral Chapter in a situation of moral conflict.

In March 1997 Mr Paarhammer sought compensation for defamation from the applicant company under Section 6 of the Media Act (Mediengesetz).

The domestic courts considered the statements made in the letter to be statements of fact which lacked a sufficient factual basis, that they damaged Mr Paarhammer's reputation and that the applicant company had not given the plaintiff an opportunity to comment or distanced itself from the contents of the letter. On 11 November 1997 Salzburg Regional Court (Landesgericht) awarded Mr Paarhammer ATS 30,000 (EUR 2,180.19) in compensation under Section 6 of the Media Act and ordered the applicant company to publish the judgment and to reimburse Mr Paarhammer's costs. The judgment was upheld on appeal.

On 11 June 1999 the Archbishop of Saltzburg recalled Mr Paarhammer from his function as Vicar General and, on 1 January 2001, appointed him President of the International Centre for Scientific Research.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 25 November 1998 and declared admissible on 15 September 2003.

Judgment was given by a Chamber of seven judges, composed as follows:

Christos Rozakis (Greek), President,

Peer Lorenzen (Danish),

Nina Vaji? (Croatian),

Snejana Botoucharova (Bulgarian),

Anatoli Kovler (Russian),

Elisabeth Steiner (Austrian),

Khanlar Hajiyev (Azerbaijani), judges,

and also Soren Nielsen, Section Registrar.

• 3. 

  Summary of the judgment [2]

Complaint

The applicant company complained about being ordered to pay compensation under the Media Act, relying on Article 10.

Decision of the Court

Article 10

The Court found that the domestic courts' order to pay compensation constituted an interference with the applicant company's right to freedom of expression under Article 10. The interference was prescribed by law (Section 6 of the Media Act, read in conjunction with Section 111  1 and 2 of the Criminal Code) and the injunction protected the reputation or rights of others.

In assessing whether the measure taken by the Austrian courts corresponded to a "pressing social need" and was "proportionate to the aim pursued", the Court attached particular importance to the context of the statements at issue, the reasons given by the national courts and the nature of the interference.

The Court considered that the reasons given by the Austrian courts were "relevant" to justify the interference complained of. It remained to be determined whether they were "sufficient".

The Court noted in the first place that the statements were made in a magazine writing on church issues and related to a religious debate which was of considerable interest to the concerned religious community at the time of the events, namely the Church Referendum Movement. It did not appear that the Austrian courts had taken that context into account.

A further factor to be taken into consideration was the distinction between statements of fact and value judgments. While the existence of facts could be demonstrated, the truth of value judgments was not susceptible of proof. However, even where a statement amounted to a value judgment, the proportionality of an interference might depend on whether there existed a sufficient factual basis for the statement in question, since even a value judgment without any factual basis to support it might be considered excessive.

In the applicant company's case, the letter to the editor expressed an opinion about necessary changes within the clergy of the Catholic Church and, made comments about Mr Paarhammr in that context. In that respect, unlike the domestic courts, the Court considered the statements to be value judgments and not statements of fact. The Court further noted that there existed a factual basis for those statements as Mr Paarhammer had previously criticised the Holy See. Admittedly, the terms used in the letter to the editor at issue might have appeared somewhat far fetched. However, the Court reiterated that the freedom of the press allowed for a degree of exaggeration, or even provocation. The comments had therefore to be regarded as permissible value judgments.

The Court disagreed with the national courts that the fact that the author of the statements in question was not identified and that the applicant company did not distant itself from its contents was relevant for the applicant company's conviction under the Media Act. As the Court had stated on previous occasions, a general requirement for the press systematically and formally to distance itself from the content of a statement of a third person that might insult or provoke others or damage their reputation was not compatible with its role of providing information on current events, opinions and ideas.

Consequently, the Court could not find that the statements in respect of Mr Paarhammer, which were made in the particular context of a church related debate, constituted a gratuitous personal attack on him. In those circumstances, the reasons adduced by the Austrian courts to justify the interference could not be regarded as "sufficient". There had therefore been a violation of Article 10

Judge Steiner expressed a dissenting opinion joined by Judge Kovler, which is annexed to the judgment.

The Court's judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human Rights

F - 67075 Strasbourg Cedex

Press contacts:

Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92

Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)

Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)

Beverley Jacobs (telephone: +00 33 (0)3 90 21 54 21)

Fax: +00 33 (0)3 88 41 27 91

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments.

 1. Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

• 2. 

  This summary by the Registry does not bind the Court.