Persons arrested or under criminal prosecution
II. RELEVANT DOMESTIC LAW 19. Article 111 of the Criminal Code ( Strafgesetzbuch ) provides: “ 1. Anyone who in such a way that it may be perceived by a third party accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine... 2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine. ..” 20. Article 115 of the Criminal Code provides: “ 1. Anyone who, in public or in the presence of several others, insults, mocks, mistreats or threatens to mistreat a third person, shall be liable to imprisonment not exceeding three months or a fine ... unless he is liable to a more severe penalty under another provision ... ” 21. A specific sanction provided for by the Media Act is forfeiture ( Einziehung ) of the publication concerned (section 33). Forfeiture may be ordered in addition to any normal sanction under the Criminal Code (section 33 § 1). 22. Forfeiture can also be ordered in separate so-called “objective” proceedings for the suppression of a publication, as provided for under section 33 § 2 of the Media Act, by virtue of which: “Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or any other person entitled to bring claims if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person cannot be secured or if conviction of such person is impossible on grounds precluding punishment, has not been requested or such a request has been withdrawn ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 23. The applicant company complained under Article 10 of the Convention that the Austrian courts'decision ordering the forfeiture of its issue no. 36/00 of 7 September 2000 infringed its right to freedom of expression. Article 10, 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.” A. The parties'submissions 24. The applicant company argued that the open letter of Mr Heller fell under the protection of Article 10 of the Convention. It was part of a debate in the media concerning cultural and educational policy which included fundamental political aspects, included true statements of fact and value-judgments based on a factual basis and addressed, inter alia, Mr Westenthaler as leading politician of the FPÖ party. Consequently, the quotation of parts of this letter also enjoyed the protection of Article 10. In addition, the applicant company did not make the objectionable statements itself but restricted itself to a careful quotation. As criminal proceedings against Mr Heller were at that time pending, this information was of public interest. The structure and wording of the article at issue were neutral. Reporting about pending court proceedings could only be informative if also the subject of these proceedings was mentioned. The domestic courts had interpreted the article at issue and the applicant company's possibility of justifying the quotation of the impugned statements narrowly and in breach with Article 10 of the Convention. The mere fact that a statement had to be considered as an offence within the meaning of the relevant legislation did not imply that a report about such a statement amounted ipso iure to an offence against a person's honour. The wording of section 33 of the Media Act was not in conformity with the requirements of Article 10 of the Convention as it did not provide for protection of a correct quotation. The measure at issue constituted a punishment which nature remained unchanged irrespective of the severity of its consequences. It had suffered material damage from the order of forfeiture. 25. The Government argued that according to the “quotation case-law” of the Austrian courts, the publication of a statement which satisfies the definition of an offence may lead to sanctions against the medium concerned unless there is any objective reason, such as e.g. the protection by a basic right, justifying such statement. In the present case, having carefully weighed the freedom of expression against the protection of the reputation of others, the second instance court set out comprehensively the arguments in favour of the application of section 33 of the Media Act. It rightly considered that the statement “ spiritually depraved ” amounted to an offence and violated the concerned person's right to reputation. Referring to case -law of the Court of Appeal, the Government asserted that the correct quotation of an insult of one person by another person was protected by Article 10 of the Convention and did not justify forfeiture. In the present case, however, the applicant company had not reported about the pending defamation proceedings in a neutral way but had identified itself with the content of the quoted statements. The Government referred in this regard to the Court of Appeal's findings as regards the structure and style of the article and, furthermore, to the article's subtitle which wording between the lines in their opinion called the rejection of the reproach of being “spiritually depraved” into question. A victim's right would be almost completely void without an adequate protection against abuse of quotations, if a medium was free to publish and add to defamation by third persons. The applicant company had not been deprived of the possibility to inform the public about the fact that criminal proceedings against Mr Heller were pending. Finally, the forfeiture was principally a safeguarding measure containing elements of minor punishment. It appeared proportionate as most of the issues of the weekly magazine had, in any way, already been published. The applicant company had not sufficiently substantiated the alleged damage resulting from the forfeiture. B. The Court's assessment 26. The Court recalls at the outset that its task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention (see Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 49, ECHR 2004 ‑ X, with further references ). In order to assess whether there has been a violation of Article 10 of the Convention, the Court will therefore examine the standpoint of reasoning adopted by the second instance court which ordered forfeiture as it found that the interests of Mr Westenthaler overweighed those of the applicant company in its right to freedom of expression. 27. The Court finds, and this was common ground between the parties, that there was an interference with the applicant company's right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. The interference at issue had its legal basis under section 33 of the Media Act and pursued the legitimate aim of protecting the reputation and rights of others. 28. The parties'arguments concentrated on the necessity of the interference. The Court refers to the general principles relating to the freedom of the press and the question of assessing the necessity of an interference with that freedom, as set out in the summary of its established case-law in the case of Fressoz and Roire v. France ( [GC], no. 29183/95, § 45, ECHR 1999 ‑ I ). In accordance with its case-law, the Court will examine whether the reasons adduced by the domestic courts were “relevant and sufficient” and whether the interference was proportionate to the legitimate aim pursued. In so doing the Court will have regard to the domestic courts'margin of appreciation. 29. In the present case, the article at issue included extracts of Mr Heller's letter calling several FPÖ politicians, among them Mr Westenthaler, “spiritually depraved political upstarts” who “have [not] the slightest awareness of how embarrassing, dastardly and frequently absurd they are”. The domestic courts ordered the forfeiture as they considered that these statements amounted to insults and defamation. The second instance court, unlike the first instance court, further argued that the forfeiture was necessary because the article had adopted, at least in part, the content of the quotation. 30. The Court notes at the outset that the statements concerning inter alia Mr Westenthaler might certainly be considered as polemical. The Court finds, however, that it is of particular relevance in the present case that the article did not make the objectionable statements itself but assisted in their further dissemination by quoting them. At this time the impugned statements had in fact already been widely disseminated as another newspaper had published Mr Heller's open letter some months ago. The applicant company quoted this letter in the context of its reportage about the then pending defamation proceedings against Mr Heller which, involving several FPÖ politicians on the one hand and a well-known artist criticising them publicly on the other hand, was certainly a subject of public interest. The Court further recalls that the press'duty to impart information and ideas on all matters of public interest extends to the reporting and commenting on court proceedings (see, mutatis mutandis, News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 56, ECHR 2000 ‑ I, with further references). Not only do the media have the task of imparting such information and ideas: the public has a right to receive them. This is all the more so where, like in the present case, the persons involved i.e. well-known politicians, have laid themselves open to public scrutiny (see mutatis mutandis Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 38, ECHR 2003 ‑ XI ). The Court endorses the applicant company's and the first instance court's argument, that comprehensive reporting about the defamation proceedings at issue would have been considerably restricted without the possibility to inform the readers about the very subject of these proceedings. 31. In these circumstances, the Court cannot find that the reproduction of the impugned extracts of Mr Heller's letter was in itself a valid ground for the forfeiture at issue (see mutatis mutandis Sunday Times v. the United Kingdom (no. 2), judgment of 26 November 1991, Series A no. 217, § 55). On the contrary, due to the fact that the publication of Mr Heller's statements contributed to the discussion of a subject of public interest and addressed well-known politicians, particularly strong reasons had to be put forward in order to explain any punishment of the applicant company for assisting in their dissemination (see mutatis mutandis Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001 ‑ III, with further references). 32. The second instance court found that the article's report lacked neutrality and referred in this regard to the repeated hints to the Minister of Justice, Mr Böhmdorfer, whose former law-firm represented the plaintiffs in the defamation proceedings, the article's allusions to political motivations of the law-suits and its passage concerning the outcome of the defamation proceedings before the second instance court, which in particular, expressed that an artist should have the right to sharp criticism. It next noted that the quoted passage had to be assessed in the light of the article as a whole. While the first part of the article, including the passage at issue, might still be regarded as objective reporting when assessed isolated, the following paragraph, namely by its layout, suggested to the reader that Mr Westenthaler, as stated in the quoted passage, was in fact dastardly. 33. The Court cannot find that these are “particularly strong reasons” within the meaning of the above cited case-law. It is certainly true that the article at issue reflected a rather critical approach towards the defamation proceedings. This in itself cannot, however, justify the conclusion that the article identified and adopted the content of the impugned statements of the quoted passage. In this regard the Court further recalls that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press's role of providing information on current events, opinions and ideas (see Thoma v. Luxembourg, cited above, § 64 ). The Court finds that in the present case the article remained within the limits of acceptable comment on court proceedings. 34. Turning to the second instance court's remaining arguments, the Court notes that the paragraph following the quoted passage cited extracts of the law-suit's wording which challenged precisely the impugned passage. This paragraph was headed by one of the words subsequently cited, namely the word “dastardly” (“ niederträchtig ”) published between quotation marks and printed in bold. The Court does not find that this form of presentation suggested any message beyond quoting the actual wording of Mr Heller's statement and the subsequent law-suit. 35. In any event, the Court points out that the quoted passage was clearly distinguishable from the remainder of the article as it was published between quotation marks, printed in italic letters and finished off with: “end of quotation” in brackets. No further comment on Mr Westenthaler's character was made in the article or its headings. In these circumstances, the Court cannot accept the argument that the article adopted Mr Heller's criticism as its own. 36. Thus, the domestic courts restricted the applicant company's freedom of expression while relying on reasons which cannot be regarded as “relevant” and “sufficient”. They therefore went beyond what would have amounted to a “necessary” restriction on the applicant company's freedom of expression. The Government's argument as to the limited nature of the interference is therefore not decisive. 37. It follows that there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 38. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 39. The applicant company did not submit any claim for damages. However, under the head of costs and expenses, it claimed reimbursement of Mr Westenthaler's domestic proceedings costs which it was ordered to pay. The note of fees accompanying this claim put these costs at 1,956.64 euros (EUR) including value-added tax (VAT). 40. The Government did not make any comment on this claim. 41. The Court finds that this claim should be considered under the head of pecuniary damage. Having regard to the direct link between the applicant company's claim and the violation of Article 10 found by the Court, it awards the applicant company the full amount of EUR 1,956.64. This amount includes VAT. B. Costs and expenses 42. The applicant claimed reimbursement of its costs of the domestic proceedings and the Strasbourg proceedings. These claims were substantiated in the amount of EUR 1, 911.69 including VAT, as regards the domestic and EUR 7,010.6 0, including VAT, as regards the Court proceedings. 43. The Government contended that the applicant company's claim as regards the costs of the Strasbourg proceedings was excessive and that, according to the Austrian Autonomous Remuneration Guidelines for Lawyers, a maximum amount of EUR 1,832.04 should be granted. 44. As to the costs of the domestic proceedings, the Court finds that they were actually and necessarily incurred and also reasonable as to quantum. It therefore awards the full amount claimed, namely EUR 1,911.69. This amount includes VAT. The costs of the Convention proceedings were also necessarily incurred. Having regard to the sums awarded in comparable cases (see, for instance, Öllinger v. Austria, no. 58547/00, § 59, 29 June 2006 ) and making an assessment on an equitable basis, the Court awards EUR 3 ,500. This amount includes VAT. 45. Thus, the Court awards a total of EUR 5,411.69 including VAT under the head of costs and expenses. C. Default interest 46. 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.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention.