JERUSALEM proti Rakousku

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26958/95
by Susanne JERUSALEM
against Austria

The European Court of Human Rights (Third Section), sitting on 27 June 2000 as a Chamber composed of

Mr J.-P. Costa, President,
Mr W. Fuhrmann,
Mr L. Loucaides,
Sir Nicolas Bratza,
Mrs H.S. Greve,
Mr K. Traja,
Mr M. Ugrekhelidze, judges,

and Mrs S. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 2 March 1995 and registered on 3 April 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Austrian citizen, residing at Vienna. At the relevant time she was a member of the Vienna Municipal Council (Gemeinderat), which also acts as the Regional Parliament (Landtag). Before the Court she is represented by Mr. Thomas Prader, a lawyer practising in Vienna.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 11 June 1992, in the course of a session of the Vienna Municipal Council, the applicant, in her function as member of the Municipal Council, gave a speech. The debate related to the granting of subsidies by the Municipality to an association which assists parents whose children had become involved in sects. In this context the applicant made the following statement:

"Like everyone else, I know that today a sect no longer means a small group that breaks away from a big church...., but a psycho-sect.

These psycho-sects also exist in Vienna. They have common features. One aspect they have in common is their totalitarian character. Moreover, in their ideology, they show fascist tendencies and often have hierarchical structures. In general, a person who gets involved with such a sect loses his identity and submits to the group...."

After having commented on the activities of an association she considered a sect, the applicant continued as follows:

"...the sect IPM [the Institut zur Förderung der Psychologischen Menschenkenntnis], which has not existed in Austria for a long time but nevertheless has for several years - in Switzerland it is called VPM - gained influence on the drug policy of the Austrian People's Party".

The applicant then stated that the Austrian People's Party had issued a publication on drug policy in co-operation with IPM, and had organised information activities involving public discussions together with IPM. The applicant then requested a resolution by the Municipal Council that, before granting subsidies to an association, the question whether that association was a sect should be examined.

The debate in the Municipal Council then turned to drug policy and the applicant, in a further speech, criticised the co-operation between the Austrian People's Party and IPM, and made further statements on the nature and activity of IPM.

On 27 October 1992 IPM, an association established under Austrian law, and the Verein zur Förderung der Psychologischen Menschenkenntnis (VPM), an association established under Swiss law, filed a civil law action under S. 1330 of the Austrian Civil Code against the applicant with the Vienna Regional Court for Civil Matters. The associations requested the court to issue an injunction against the applicant prohibiting her from repeating the statement that IPM was a sect, to order her to retract this statement and to grant the publication of the applicant's retraction in several Austrian newspapers.

On 2 February 1993 the applicant commented on the action. She submitted that the term "sect" used by her was a value judgment and not a statement of fact. It had been used in the context of a political debate. If the court, however, was of the opinion that the term “sect” was a statement of fact, she was willing to prove that this statement was true, and proposed documentary evidence and the hearing of witnesses to confirm that the plaintiffs were sects. As documentary evidence, the applicant proposed a decision by a German court and seven articles from newspapers and periodicals. As witnesses, she proposed to hear R.S., G.B., F.V. and J.H. As regards R.S. the applicant stated that he was a journalist. With regard to the other persons, the applicant did not specify what their position was. The applicant also requested the court to obtain the report of an expert, without specifying the issue or the field of competence of the expert.

On 16 February 1993 IPM and VPM modified their injunction claim to include the following statement made by the applicant on 11 June 1992:

"One aspect they have in common is their totalitarian character. Also in their ideology they show fascist tendencies and often have hierarchical structures. In general a person who gets involved with such a sect loses his identity and submits to the group...."

On 18 February 1993 the applicant confirmed that she had received the plaintiffs’ amended claim. She submitted a transcript of the session of the Vienna Municipal Council of 11 June 1992 and argued that the modification of the action merely referred to a general explanation of the term “psycho sect” and had no direct relation to the plaintiffs. She further referred to her previous statements and the evidence proposed therein.

On 22 February 1993 a court hearing took place before the Regional Court. The Regional               Court accepted several documents submitted by the parties, closed the taking of evidence and rejected all requests for the taking of other evidence as irrelevant because the documents submitted had clarified the issues sufficiently.

On 8 April 1993 the Regional Court granted the injunction. It ordered the applicant not to repeat her statements that the IPM and VPM were sects of a totalitarian character. Furthermore, the Regional Court ordered the applicant to retract these statements, the retraction to be published in several newspapers. The Regional Court found that, contrary to the applicant's opinion, her statements were not value-judgements, but statements of fact. Having regard to the statutes of the associations and other evidence before it, the Regional Court considered that the applicant's statements had proved untrue. The applicant had disseminated unfounded assumptions as proven facts and had therefore acted negligently. As the damage to the plaintiff associations' gain and livelihood was manifest, the Court granted the requested injunction under S. 1330 § 2 of the Civil Code.

On 12 July 1993 the applicant appealed. She submitted that the Regional Court had failed to take the evidence requested by her. She contended in particular that the real activities of the plaintiffs and their (totalitarian) methods could not be seen from their statutes. In particular the internal organisational structure (hierarchical structures), their conduct against critics (exhibiting a totalitarian character and an ideology with fascist features) and the effect on the personality of the persons concerned (loss of identity and submission to the group) should have been examined. Only a report by an expert using sociological and psychological methods or interviews with the persons affected could have clarified these issues. In any event, the applicant's statements were value-judgments made in the context of a political debate and not statements of fact. The injunction therefore violated her right to freedom of expression under Article 10 of the Convention.

On 16 November 1993 the Vienna Court of Appeal (Oberlandesgericht) upheld the Regional Court's decision in so far as it concerned the prohibition on repetition, but dismissed the order for a retraction and its publication.

It confirmed the Regional Civil Court's view that the applicant's allegations were statements of fact. Contrary to the view of the Regional Court, the Court of Appeal considered that the applicant's allegations amounted to an insult and fell not only within the scope of the second but also within the scope of the first paragraph of S. 1330 of the Civil Code. In that case, the applicant and not the plaintiff had to prove the truth of her allegations.

With regard to the applicant's complaint that the Regional Court had refused to take the evidence she had proposed in order to prove that the plaintiffs were sects, the Court of Appeal found that such evidence was irrelevant to the proceedings. According to the Court of Appeal's legal point of view, the applicant's statements had to be seen as a whole. Thus, the use of the term “sect” was not decisive, but the allegation of fascist tendencies was of primary importance. This latter statement amounted to an insult going beyond justified criticism. Since the applicant had not offered any evidence with regard to this definition of a psycho-sect, but only with regard to the question whether the plaintiffs were sects, she had failed to prove its truth, as required by S. 1330 § 1 of the Civil Code.               The Court of Appeal also found that the request for a retraction of the statement and its publication in several newspapers had to be dismissed because the plaintiffs had failed to specify the addressees of the retraction and the applicant's statements had been reported in the newspapers.

On 18 August 1994 the Supreme Court rejected as inadmissible the applicant's further appeal on points of law (Revision). It confirmed, however, that the statements such as "fascist tendencies" or "totalitarian character" were statements of fact which the applicant had failed to prove. Referring to its previous case-law, it stated that disparagement by means of untrue statements, even though it was made in the course of a political debate, went beyond acceptable political criticism and could not be justified by a weighing of interests or by the right to freedom of expression.

B. Relevant domestic law

Section 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows:

"(1) Everyone who has suffered material damage or loss of profit because of an insult may claim compensation.

(2) The same applies if anyone disseminates statements of fact which jeopardise another person's credit, gain or livelihood and if the untruth of the statement was known or must have been known to him. In such a case the retraction of the statement and the publication thereof may also be requested ..."

COMPLAINTS

The applicant complains under Article 10 of the Convention that the injunction issued by the Austrian courts violated her right to freedom of expression. She further complains under Article 6 of the Convention that the injunction proceedings were unfair in that the Austrian courts failed to take the evidence she had requested.

THE LAW

1. The applicant complains under Article 10 of the Convention that the injunction issued by the Austrian courts violated her right to freedom of expression.

The relevant part of Article 10 of the Convention 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 … for the protection of the reputation or rights of others...”

The Government accept that the injunction interfered with the applicant’s right to freedom of expression. However, the measure at issue was justified under paragraph 2 of Article 10 as it was “prescribed by law”, namely Section 1330 of the Civil Code, and pursued the legitimate aim of protecting the rights and reputation of others. Moreover, it was necessary in a democratic society in the interests of that aim. In this respect the Government submit that the limits of acceptable criticism are wider in respect of a politician than in respect of a private individual. In the present case the applicant had not attacked a politician but had raised serious accusations against private bodies, whose political function, if any, was merely a consultative one. In her capacity as member of the Municipal Council, the applicant had attacked the associations in circumstances which prevented them from defending themselves in the same way, at the same place and before the same audience. Moreover, the impugned judicial proceedings were not instituted ex officio by the State but by private organisations, and they were not criminal proceedings but civil.

The Austrian courts qualified the applicant’s remarks as statements of fact, not value judgments, in conformity with the Court’s case-law, because the statements in question were susceptible to general and objective review (cf. the Lingens v Austria judgment of 8 July 186, Series A no. 103, and Oberschlik v. Austria judgment of 23 May 1991, Series A no. 204). The applicant had the opportunity to prove the truth of her statements, which she failed to do, although there was no reason to doubt her good faith in this respect. Taking into account the importance of the right with which there was interference and the seriousness and scope of that interference, the Austrian courts did not overstep the margin of appreciation afforded to Member States.

The applicant submits that the injunction issued by the Austrian courts constituted an interference with her rights under Article 10. Although there was a legal basis for the interference and the measure at issue pursued a legitimate aim under Article 10 § 2, it was not necessary in a democratic society. The incriminated statements had been made in the course of a session of the Vienna Municipal Council and concerned a political issue, namely the granting of public subsidies to associations and, in particular, an association of parents whose children had become involved with sects. In this context the applicant had pointed out that sects were gaining influence in politics and had cited the plaintiff associations as examples because of their co-operation with the ÖVP, a political party. The applicant had not been involved in a direct dispute with the VPM or the IPM. Rather her statements were a critical comment on the drug policy of another political party, and could not be understood as an attack on the plaintiffs’ reputation. In any event, the IPM itself had repeatedly made public statements on AIDS prevention or drug policy, and the applicant was therefore entitled to comment on that.

In the applicant’s view the statements at issue were value judgments. This opinion was not shared by the Austrian courts, which qualified them as statements of fact, the truth of which had to be proved. The applicant had offered evidence to prove their truth, but the Austrian courts refused it. Thus it was not the applicant’s fault that she had not succeeded in proving the truth of her statements.

The Court considers, in the light of the parties’ submissions, that the applicant’s complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant further complains under Article 6 of the Convention that the injunction proceedings were unfair in that the Austrian courts failed to take the evidence she had requested.

Article 6 § 1 of the Convention, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal established by law...”

In the Government’s view there has been no violation of this provision. The applicant was not deprived of the opportunity to have evidence taken by the court. The applicant and her counsel must have been aware that the Regional Court, at the hearing on 22 March 1993, was not prepared to take the evidence offered by the applicant in her submissions of 2 February 1993, because otherwise the Regional Court would have sent out summonses or appointed an expert. Therefore the applicant should have explicitly requested the appointment of an expert or the summoning of witnesses, or could even have brought the witnesses with her to the hearing. However, she failed to take these steps.

Further, the applicant could have presented the witnesses at the oral hearing of the appeal. The Court of Appeal was competent to decide on the taking of evidence and to reject evidence it did not consider relevant. In this respect it should be noted that the evidence offered in the applicant’s submissions of 2 February 1993 related solely to the unmodified claim contained in the action originally filed by the plaintiffs. The only comment the applicant made on the modified claim was by reference to her previous submissions. However, the Court of Appeal’s review was limited to the modified claim.

The applicant disputes the Government’s contentions. She submits that the Austrian courts should have taken the evidence proposed by her. She had asked the Regional Court to hear several witnesses and to obtain an expert report. The court however dismissed the requests as irrrelevant to the proceedings. Even if the applicant could have presented witnesses in court (Stelligmachen), this would not have obliged the Regional Court to hear them.

The Court considers, in the light of the parties’ submissions, that the applicant’s complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar              President