Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY OF
Application No. 12007/86
by Erich REBASSO
against Austria
The European Commission of Human Rights sitting in private
on 5 October 1987 the following members being present:
MM. C.A. NØRGAARD, President
M.A. TRIANTAFYLLIDES
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 December 1985
by Erich REBASSO against Austria and registered
on 6 February 1986 under file N° 12007/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant, an Austrian citizen born in 1940, is an
employee resident in Klagenfurt. Before the Commission he is
represented by Dr. Unterasinger, a lawyer practising in Graz.
The applicant was involved in various criminal proceedings
before the Austrian Courts. In one set of proceedings before the
Klagenfurt Regional Court (Landesgericht) the applicant was convicted
on 19 August 1983 of usury (Wucher) towards one Mr. F.L., though upon
appeal the applicant was acquitted by the Graz Court of Appeal
(Oberlandesgericht) on 10 April 1984, since F.L. had not in fact been
in need of money as required by S. 154 of the Austrian Criminal Code.
On 11 April 1984 the newspaper "Neue Kronenzeitung - Kärntner Krone"
published a newspaper article on these proceedings in which it stated
inter alia:
<Translation>
"Good advice was expensive: Pensioner lost property ...
(The applicant) had ... helped the pensioner ... F.L. In order
that the latter ... at his divorce would be 'penniless' ... (the
applicant) advised: 'you sell me pro forma your house' ... 'The
fee for the lawyers and for (the applicant) swallowed the
whole profit'".
<Original>
"Der gute Rat war teuer: Rentner verlor Besitz ... (Der
Beschwerdeführer) hatte sich ... des Rentners F.L. ... angenommen.
Um bei seiner ... Scheidung als 'Mittelloser' dazustehen ...
riet (der Beschwerdeführer) 'Du verkaufst mir pro forma Dein Haus'
... 'Das Honorar für ... Anwälte und für (den Beschwerdeführer)
verschlang den gesamten Erlös'."
In another set of proceedings in which the applicant was
accused of fraud the Klagenfurt Regional Court ordered a hearing which
was later postponed upon the applicant's request. On 2 August 1984
the "Neue Kronenzeitung" published an article on the applicant with the
headline: "Judge waited: But the applicant 'won't come'" ("Richter
wartete: Doch (der Beschwerdeführer) 'kummt net'"). It appears that
in these proceedings the applicant was eventually acquitted.
In the applicant's submissions these articles implied that he
had incorrectly been acquitted and had purposely stayed away from the
hearing. Moreover, as a financial adviser these articles had brought
him into financial difficulties. For instance, a bank severed its
business relations with him.
The applicant demanded damages from the newspaper publisher
before the Vienna Regional Court. He relied on S.6 of the Media Act
(Mediengesetz) according to which damages must be paid if the offence
of slander (üble Nachrede) has been committed. In the ensuing
proceedings the newspaper publisher did not avail itself of the
opportunity to prove that the statements were true. The applicant was
heard by the Court on 21 March 1985.
In its decision of 21 March 1985 the Court held that the two
newspaper articles amounted to slander within the meaning of S.lll of
the Austrian Criminal Code (Strafgesetzbuch) and it awarded the
applicant 35'000.-AS for each.
The Court which relied on the text of the newspaper articles
and the evidence submitted by the applicant found that F.L. had
voluntarily handed over the money to the applicant and that in the
other proceedings the Court itself had upon the applicant's request
postponed the proceedings. The Court determined the amount of damages
by relying inter alia on the financial difficulties which the
applicant had suffered due to the newspaper articles.
The newspaper publisher therupon filed an appeal (Berufung)
with the Vienna Court of Appeal (Oberlandesgericht). On 19 August 1985
the latter dismissed the appeal insofar as it concerned nullity and
culpability. The appeal was upheld insofar as it concerned
punishment. In particular, the two amounts previously awarded to the
applicant were reduced to the sums of 8'000.- and 5'000.-AS, respectively.
When reducing the damages the Court recalled that the
previous decision had assumed financial difficulties of the applicant
on account of the newspaper articles. The judgment continues:
<Translation>
"However, the first Court has overlooked that the ...
economic difficulties were mainly brought about by the
fact that criminal proceedings had been conducted against
the applicant which related to his professional activities.
It has further incorrectly not considered that the applicant's
conduct which had been viewed in the first instance as usury
towards the pensioner F.L. constituted in any event a contestable
conduct which reduced a financial administrator's esteem in
society and economy, since the contract concluded between the
applicant and F.L. only amounted to a fictitious transaction by
means of which F.L. should have been deprived of his fortune
to the disadvantage of his wife's claims. However, somebody
who conducts himself in such an unsound manner must not be
surprised if he loses credibility with his business partners."
<Original>
"Bei Beurteilung der Auswirkungen der Veröffentlichung hat das
Erstgericht aber übersehen, dass die ... wirtschaftlichen Schwierig-
keiten vor allem durch die Tatsache ausgelöst wurden, dass gegen
den Antragsteller mit seiner beruflichen Tätigkeit zusammen-
hängende Strafverfahren abgeführt wurden. Es hat weiters zu
Unrecht unberücksichtigt gelassen, dass das in erster Instanz
als Wucher gegenüber dem Rentner F.L. gewertete Verhalten des
Antragstellers jedenfalls ein anfechtbares, der gesellschaftlichen
und wirtschaftlichen Wertschätzung eines Vermögensverwalters
abträgliches Verhalten darstellte, weil das zwischen dem
Antragsteller und F.L. abgeschlossene Geschäft bloss ein
Scheingeschäft darstellte, durch welches F.L. zum Nachteil der
Ansprüche seiner Ehegattin seiner Vermögenswerte entkleidet hätte
werden sollen. Wer sich aber derart unseriös verhält, darf sich
über den Vertrauensschwund bei seinen Geschäftspartnern nicht
wundern."
The Court found further that the amount also had to be reduced
since the accusation that the applicant had behaved improperly towards
the court could only be considered together with the other accusations,
not on its own.
COMPLAINTS
The applicant complains that during the proceedings before the
Vienna Court of Appeal the latter did not present a report (keinen
Bericht erstattet) and did not take new evidence. The judge cut the
applicant's lawyer short, and relevant documents were found tied up
outside the Court room. It was unclear from where the Court derived
its wrong conclusion that separate criminal proceedings had brought
about his financial difficulties, particularly since the Court
nevertheless awarded him damages. The Court had thus decided with a
preconceived opinion and he did not have a fair hearing.
Moreover, the Court of Appeal violated the presumption of
innocence by unjustifiably accusing the applicant, who had been
acquitted in separate criminal proceedings, of contestable and
unsound conduct.
The applicant relies on Article 6 of the Convention.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the Convention that
during the proceedings before the Court of Appeal he did not have a fair
hearing, that the Court had a preconceived opinion and that its conclusions
were wrong and contradictory.
The Commission notes that before the Austrian courts the
applicant demanded damages from a newspaper which the courts granted
after considering that the newspaper articles concerned amounted to
slander. The Commission considers that the right to enjoy a good
reputation constitutes a "civil right" within the meaning of Article 6
para. 1 (Art. 6-1) and that the guarantees of that provision are therefore
applicable in the present case (see e.g. No. 8366/78, Dec. 8.3.79,
DR 16 p.196).
Nevertheless, with regard to the judicial decision of which
the applicant complains, the Commission recalls that, in accordance
with Article 19 (Art. 19) of the Convention, its only task is to ensure the
observance of the obligations undertaken by the Parties in the Convention.
In particular, it is not competent to deal with an application
alleging that errors of law or fact have been committed by domestic
courts, except where it considers that such errors might have involved
a possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (see e.g. No.485/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77,
Dec. 13.12.79, D.R. 18 pp. 31, 45).
It is true that the applicant has also complained under
Article 6 (Art. 6) that the Court of Appeal failed to take new evidence, that
it did not present a report, that it cut the applicant's lawyer short,
and that certain documents were found tied up outside the Court room.
Moreover, in the applicant's submissions it was unclear how the Court
reached its conclusion that other criminal proceedings had brought
about the applicant's financial difficulties.
The Commission has examined these complaints under Article 6
para. 1 (Art. 6-1) of the Convention. However, even assuming that all the
applicant's allegations could be sufficiently substantiated the
Commission recalls that Article 6 para. 1 (Art. 6-1) does not grant an unlimited
right to have evidence taken, and it is primarily the task of the
respective courts to decide on the relevance to the proceedings of the
taking of evidence (see e.g. No. 7450/76, Dec. 28.2.77, D.R. 9 p. 108).
In the present case the applicant was able to make submissions orally
and in writing before two different courts, and he has not alleged that
in these proceedings, in particular before the Court of Appeal, the
respondent party was treated in a different or better manner. The
Commission thus sees no indication that the applicant who was
represented by a lawyer could not present his case properly or that
the proceedings were improperly conducted.
Insofar as the Court of Appeal, when determining the amount of
damages, found that the applicant's financial difficulties were
brought about by separate criminal proceedings, the Commission
observes that the Court of Appeal was thereby considering in an
independent manner the impact of other court proceedings upon the
applicant's economic situation. Furthermore, the Court of Appeal had
already resolved the question as such of damages to be awarded to the
applicant and it was only determining their exact amount, whereby the
issue of criminal proceedings only constituted one of three criteria
which the Court of Appeal considered when reaching its conclusion.
As a result, the Commission finds that the complaints at issue
do not disclose any appearance of a violation of the rights set out in Article
6 para. 1 (Art. 6-1) of the Convention. It follows that this part of the
application is manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant also complains under Article 6 (Art. 6) of the Convention
that the Court of Appeal violated the presumption of innocence by
unjustifiably referring to his "contestable" and "unsound" conduct,
although he had been acquitted in separate criminal proceedings.
The Commission which has examined this complaint under Article 6 para.
2 (Art. 6-2) of the Convention recalls that the presumption of innocence as
guaranteed by this provision is binding not only on the criminal court before
which a person is charged with a criminal offence. Rather, no authority may
treat a person as guilty of a criminal offence unless he has been convicted by
the competent court, and in the case of an acquittal the authorities are bound
by the decision that there is no criminal guilt. There may however be civil
responsibility in respect of the same set of facts (see No. 9295/81, Dec.
6.10.82, D.R. 30 pp. 227).
In the present case the Court of Appeal referred in its
decision of 19 August 1985 to a "contestable" and "unsound" conduct of
the applicant.
The Commission observes that the Court of Appeal mentioned as
the reasons for these formulations the applicant's conduct, in
particular the fictitious contract which the applicant had negotiated
with F.L., and its consequences for the applicant's professional and
business activities. The Court of Appeal did not rely on the criminal
charge of usuary brought against the applicant of which he was later
acquitted. In any event, the formulations must be read in the wider
context of the decision as a whole in which the Court of Appeal
dismissed the newspaper publisher's appeal in respect of nullity and
conviction, thus in fact confirming the previous court's decision in
particular insofar as it found that the newspaper articles amounted to
slander within the meaning of S.lll of the Criminal Code.
In the circumstances of the present case, the Commission finds
that the terms employed do not amount to a violation of the
applicant's rights under Article 6 para. 2 (Art. 6-2) of the Convention. The
application is therefore also in this respect manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)