Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY OF
Application No. 28977/95
by Krone-Verlag GmbH and
Mediaprint Anzeigen GmbH & Co KG
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
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 August 1995 by
Krone-Verlag GmbH and Mediaprint Anzeigen GmbH & Co KG against Austria
and registered on 26 October 1995 under file No. 28977/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are two companies which are both part of a large
media group publishing several newspapers and magazines. The first
applicant company (Krone-Verlag GmbH) is a limited company
(Gesellschaft mit beschränkter Haftung) registered under Austrian law.
It is the general partner (Komplementär) of a limited partnership
(Kommanditgesellschaft) which is the media owner (Medieninhaber) of an
Austrian newspaper, the "Neue Kronen Zeitung". The second applicant
company (Mediaprint Anzeigen GmbH & Co KG) is a limited partnership
(Kommanditgesellschaft) dealing with advertisement, in particular in
the "Neue Kronen Zeitung". Both applicant companies have their places
of business in Vienna. Before the Commission they are represented by
Mr. Höhne, a lawyer practising in Vienna.
A. Particular circumstances of the case
a. The proceedings for unfair competition
In October 1990 FZ GmbH, which is the publisher of newspapers and
magazines and a competitor of the media group to which the applicant
companies belong, brought an action for unfair competition with the
Vienna Commercial Court (Handelsgericht) against the first applicant
company and three other companies belonging to the same media group,
namely Krone-Verlag GmbH & Co KG, Mediaprint Zeitungs- und
Zeitschriftenverlag GmbH and Mediaprint Zeitungs- und
Zeitschriftenverlag GmbH & Co KG. The FZ GmbH requested an injunction
prohibiting the defendants from publishing against payment articles in
their newspapers which were not marked as "advertisement" (Anzeige),
"publicity" (Werbung) or "paid article" (entgeltliche Einschaltung) and
referred to several such articles which had appeared in the "Neue
Kronen Zeitung". Moreover, the FZ GmbH requested the Court to grant
the publication of the judgment given in the unfair competition
proceedings in several newspapers belonging to the defendant companies.
On 8 February 1990 the Vienna Commercial Court granted the
requested injunction.
On 17 May 1990 the Vienna Court of Appeal (Oberlandesgericht)
partly granted the first applicant company's and its co-defendants'
appeal. It confirmed the prohibition to publish paid articles without
explicit reference to this fact but dismissed the request for a
publication of the decision in several newspapers. Instead it ordered
the publication of the judgment in only one edition of the newspaper
in which the contested articles had appeared.
On 18 September 1990 the Supreme Court (Oberster Gerichtshof)
rejected as inadmissible the extraordinary appeal on a point of law
(außerordentliche Revision) lodged by the first applicant company and
its co-defendants.
b. Enforcement proceedings
On 10 January 1991 the FZ GmbH requested the Döbling District
Court to grant enforcement of the above judgment by means of a fine
under Section 355 of the Enforcement Act (Exekutionsordnung) against
the first applicant company, the Mediaprint Zeitungs- und
Zeitschriftenverlag GmbH and Mediaprint Zeitungs- und
Zeitschriftenverlag GmbH & Co KG. The FZ GmbH requested that on each
of the firms a fine of AS 40,000 be imposed as they were responsible
for the publication of articles against payment under the heading
"living more consciously" (Bewußter Leben) without explicit reference
to this fact.
On 18 January 1991 the District Court granted the enforcement
and imposed the fines requested for failure to comply with the
injunction.
The first applicant company and the two other firms lodged an
appeal against the enforcement order with the Vienna Regional Court for
Civil Law Matters (Landesgericht für Zivilrechtssachen Wien). They
submitted in particular that the District Court had imposed a fine on
all three of them, although there was only one single breach of the
injunction and only one single request for enforcement. Moreover, the
fine for all three companies taken together exceeded the limit of
ATS 80,000 provided for in Section 359 of the Enforcement Act.
On 30 July 1991 the Vienna Regional Court dismissed the appeal
against the enforcement order and stated that no appeal lay against its
decision.
Subsequently, the first applicant company and the two other firms
affected by the enforcement order brought an action under Section 36
of the Enforcement Act for discontinuation of the enforcement
proceedings (Impugnationsklage) before the Döbling District Court.
They submitted, inter alia, that the first applicant company,
Krone-Verlag GmbH, could not be held liable for the contravention,
because the Krone-Verlag GmbH & Co [Vermögensverwaltung] KG, the
limited partnership of which it was the general partner, had
transferred its business in August 1990 to a new limited partnership,
the Krone-Verlag GmbH & Co KG, and was no longer the media owner.
Therefore it could not have disregarded the judgment. It was irrelevant
in this context that the first applicant company was also the general
partner of the limited partnership (Krone-Verlag GmbH & Co KG) owning
the media after August 1990. Moreover, the first applicant company was
not liable for the alleged contravention, because due to the internal
structure and distribution of functions between the limited partnership
acting as publisher (Mediaprint Zeitungs- und Zeitschriftenverlag GmbH
& Co KG) and the limited partnership acting as responsible media owner
(Krone-Verlag GmbH & Co KG), it had no control over the part of the
newspaper relating to advertisements.
On 31 August 1992 the Döbling District Court dismissed the
action. It found that it was not in dispute between the parties that
the articles at issue had been published against payment and that the
first applicant company was the liable partner (Komplementär) both of
the former and the present partnership acting as responsible media
owner. Since all the plaintiffs in the present proceedings were bound
by the injunction, the internal distribution of responsibilities among
the companies belonging to the media group was irrelevant.
On 1 December 1992 the Vienna Regional Court quashed the District
Court's decision insofar as it concerned the first applicant company
and confirmed the remainder of the decision. It directed the District
Court to take further evidence on the alleged lack of responsibility
of the first applicant company for the publications at issue.
On 8 June 1993 the Supreme Court rejected the extraordinary
appeal on points of law (außerordentliche Revision) lodged by the
Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co KG and
Mediaprint Zeitungs- und Zeitschriftenverlag GmbH against the Regional
Court's decision.
On 9 February 1994 the District Court, after having taken
supplementary evidence, declared the enforcement against the first
applicant company inadmissible.
The District Court, after having examined the structure of and
the interrelation between the different companies and firms of the
media group which publishes the "Neue Kronen Zeitung", found that the
limited partnership Krone-Verlag GmbH & Co KG, whose general partner
the first applicant company was, was only in charge of the editorial
part (redaktioneller Teil) of the newspaper. All matters relating to
the advertising in the newspaper were taken care of by a special
advertising company, the Mediaprint Anzeigen GmbH & Co KG. The
contested publications referred to in the enforcement order had been
published in the advertisement part of the newspaper and the first
applicant company by itself could not exercise any influence on the
advertisement company, because the latter was a contractor of the
Mediaprint Zeitungs- und Zeitschriftenverlag GmbH. It could only
exercise an influence on the basis of its position as partner of the
Krone-Verlag GmbH & Co KG, which, in turn, owned 50 % of the shares of
the Mediaprint Zeitungs- und Zeitschriftenverlag GmbH, which was the
general partner of the Mediaprint Zeitungs- und Zeitschriftenverlag
GmbH & Co KG, which acted as publisher of the newspaper. The first
applicant company had exercised this influence by means of urgent
requests during the shareholder meetings, but had no influence on the
concrete appearance of the advertisement pages of the newspaper.
On 5 July 1994 the Vienna Regional Court confirmed the District
Court's decision.
On 3 August 1994 the FZ GmbH filed an extraordinary appeal on
points of law. It submitted in particular that the mere fact that
responsibility for the publication of the newspaper was internally
distributed between different companies belonging to the media group
could not relieve the first applicant company from its obligation to
ensure that the injunction was not breached. If the contractual
obligations entered into by the first applicant company had the effect
that it was obliged to participate in acts which were in breach of the
law then the contract on which such an obligation was based would
itself be unlawful. The extraordinary appeal was served on the first
applicant company on 12 August 1994. The first applicant company does
not submit whether, and if so at which date, it replied.
On 25 January 1995 the Supreme Court granted the FZ GmbH's
extraordinary appeal on points of law and dismissed the first applicant
company's action for the discontinuation of the enforcement
proceedings. This judgment was served on the first applicant company
on 3 March 1995.
The Supreme Court found that according to the injunction the
first applicant company had the obligation to refrain from any acts of
unfair competition as specified therein. This obligation also included
the duty to abstain from any acts which could lead to a situation where
the first applicant company could no longer prevent acts in breach of
the injunction. If a party liable under an injunction voluntarily had
given up the possibility of preventing others from committing acts in
breach of it, this party would be liable even though it was no longer
capable of preventing such acts. The party's fault was then that it
had voluntarily given up the possibility of exercising influence.
In the present case the responsibilities of the Krone-Verlag GmbH
& Co KG of which the first applicant company was a general partner -
probably after the injunction in the unfair competition proceedings had
been granted - had been contractually confined to the editorial part.
The first applicant company had not argued that it had been impossible
to conclude the contract in such a way that it would still be in a
position to exercise its influence on the advertisement part or at
least to prevent the publication of advertisements that were not
sufficiently announced as such. To maintain such an influence was,
however, of particular importance as under to the Media Act
(Mediengesetz) the media owner was supposed to run the business on its
own account and to dispose of the power (Verfügungsgewalt) necessary
to run the business. The Supreme Court concluded that the first
applicant company had to bear the responsibility for the publication
of the advertisement which breached the injunction because it had
voluntarily given up its possibility to prevent this act.
B. Relevant Domestic Law
Section 26 of the Media Act (Mediengesetz) reads as follows:
<German>
"Ankündigungen, Empfehlungen sowie sonstige Beiträge und
Berichte, für deren Veröffentlichung ein Entgelt geleistet wird,
müßen in periodischen Medien als "Anzeige", "entgeltliche
Einschaltung" oder "Werbung" gekennzeichnet sein, es sei denn,
daß Zweifel über die Entgeltlichkeit durch Gestaltung oder
Anordnung ausgeschlossen werden können."
<Translation>
"Announcements, recommendations and other texts or articles which
are published against payment have to be marked in periodicals
as "advertisement", "paid article" or "publicity", unless any
doubts that the announcements were published against payment can
be excluded due to their appearance or lay-out."
Section 355 of the Enforcement Act (Exekutionsordnung) reads as
follows:
<German>
"(1) Die Exekution gegen den zur Unterlassung oder zur Duldung
der Vornahme einer Handlung Verpflichteten geschieht dadurch, daß
wegen eines Zuwiderhandelns nach Eintritt der Vollstreckbarkeit
des Exekutionstitels auf Antrag vom Exekutionsgericht anläßlich
der Bewilligung der Exekution eine Geldstrafe verhängt wird.
Wegen eines jeden weiteren Zuwiderhandelns hat das
Exekutionsgericht auf Antrag eine weitere Geldstrafe oder eine
Haft bis zur Gesamtdauer eines Jahres zu verhängen...."
<Translation>
"(1) Enforcement against a person who is liable under a judgment
to refrain from an act or to tolerate an act takes place in the
following way. The enforcement court imposes a fine for a breach
of the injunction if the injunction has become enforceable and
the opposite party requests it to do so. For any further breach
of the injunction the enforcement court, upon request, imposes
a further fine or imprisonment up to one year ..."
According to Section 502 of the Austrian Code of Civil Procedure
(Zivilprozeßordnung) an appeal on points of law can only be lodged
against an appellate court judgment if the decision of the case depends
upon a question of substantive or procedural law which is of
considerable importance in view of the uniformity of law, the stability
of law or the development of law, or if the appellate court deviated
from the jurisprudence of the Supreme Court or in the absence of any
such jurisprudence. Moreover, the appeal on points of law can only be
based on the specific grounds enumerated in S. 503, such as procedural
failures, contradiction between the appellate court's factual findings
and the contents of the files or incorrect application of the law.
As regards the proceedings on an appeal on points of law,
Section 509 para. 1 provides that the Supreme Court decides following
a session in camera without an oral hearing. According to paragraph 2
of Section 509, a hearing may be ordered to be held on application by
one of the parties or on the court's own motion, if such course appears
necessary in the specific circumstances of the case.
Section 510 para. 1 provides that the Supreme Court should
generally decide the case.
COMPLAINTS
The applicant companies complain under Article 6 para. 1 of the
Convention that the Chamber of the Supreme Court which on
25 January 1995 decided on the extraordinary appeal on points of law
was biased. They submit that between 1989 and 1995 companies which
belong to their media group had filed 41 ordinary and extraordinary
appeals on points of law which had been dealt with by this Chamber
(competent for enforcement matters) and the ratio of successful appeals
had dropped continuously in the last years, a fact which, in their
view, is attributable to changes in the composition of the Chamber.
During the same time the competing media group had filed 29 appeals and
their ratio of success had increased. Another Chamber of the Supreme
Court (competent for matters of competition) had dealt during the same
period with 52 appeals by the media group to which the applicant
companies belong and there the ratio of success remained stable.
The applicant companies further complain under Article 6 para. 1
of the Convention that the proceedings before the Supreme Court were
unfair in that the Supreme Court carried out investigations of facts
without giving them the possibility to comment thereon and to present
their legal arguments. The contested part of the Supreme Court's
judgment concerns the statement (underlined in the text) that "the
responsibilities of the Krone-Verlag GmbH & Co KG of which the first
applicant company was a general partner had been contractually confined
to the editorial part- probably after the injunction in the unfair
competition proceedings had been granted."
The first applicant company complains under Article 6 para. 2 of
the Convention about an infringement of the presumption of innocence
in the enforcement proceedings because the enforcement court imposed
a fine on it although it had not itself breached the injunction.
The first applicant company, relying on Article 7 of the
Convention, complains that its right not to be subjected to retroactive
punishment has been violated in that the Supreme Court in its judgment
extended the scope of Section 355 of the Enforcement Act in a way
infringing the principle of "nullum crimen, nulla poena sine lege".
The second applicant company complains under Article 1 of
Protocol No. 1 that its right to peaceful enjoyment of its possession
has been violated by the fines imposed in the enforcement proceedings,
because, under the contractual relationships it had with the other
companies of the media group, it was obliged to refund the fines
imposed on the other companies and firms. Thus, it had to refund three
fines for one single breach of the injunction. In this respect it also
invokes Article 14 of the Convention and submits that the Austrian law
was discriminatory in that partners of a partnership are all
individually liable to pay fines under the Enforcement Act.
THE LAW
1. The first applicant company complains under Article 6 para 1
(Art. 6-1) of the Convention about a lack of impartiality of the
Chamber of the Supreme Court which handed down the judgment of 25
January 1995.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads as follows:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and
impartial tribunal established by law. ..."
The Commission must first examine whether Article 6 para. 1
(Art. 6-1) of the Convention applies to the proceedings at issue, i.e.
whether these proceedings involved the determination of the first
applicant company's civil rights and obligations or of a criminal
charge against it.
The Commission observes that following proceedings for unfair
competition in which the Austrian courts have issued an injunction
against the first applicant company, the opposing party applied for
enforcement of the injunction by imposing fines under Section 355 of
the Enforcement Act. The enforcement of the injunction was granted and
the fines imposed. Thereupon the first applicant company filed an
action under Section 36 of the Enforcement Act for discontinuation of
the enforcement proceedings on the ground that it had not been
responsible for the breach of the injunction. On 25 January 1995 the
Supreme Court dismissed the first applicant company's action and as a
consequence there were no more legal obstacles to the enforcement of
the injunction by means of imposing a fine.
a. The Commission finds it appropriate to first examine whether the
fine imposed under the Enforcement Act involved the determination of
a criminal charge.
The Commission recalls that for determining whether a sanction
qualifies as "criminal" three elements have to be taken into account:
whether or not the provision defining the offence belongs, in the legal
system of the respondent State, to criminal law, the nature of the
offence and the degree of severity of the penalty risked (Eur. Court
HR, Schmautzer v. Austria judgment of 23 October 1995, Series A
no. 328-A, p. 13, para. 27 and mutatis mutandis Welch v. the United
Kingdom judgment of 9 February 1995, Series A no. 307-A, p. 13,
para. 27).
In the present case the fine was a measure of enforcement of an
injunction issued in civil proceedings. It was a sanction provided for
in the Enforcement Act which is part of civil procedural law and not
of criminal law. Furthermore the "offence" at issue, breach of a civil
law injunction, cannot be considered criminal in nature. As regards
the "degree of severity of the penalty risked" the Commission finds
that the sanctions risked cannot be considered as negligible, as they
involved the imposition of substantial fines and might even entail
imprisonment. This element is not in itself sufficient to lead to the
conclusion that the measure at issue is criminal. In this respect the
Commission notes in particular that Article 5 para. 1 (Art. 5-1) of the
Convention, which deals with several kinds of detention, mentions "the
lawful arrest or detention of a person for non-compliance with the
lawful order of a court or in order to secure the fulfilment of any
obligation prescribed by law" (Article 5 para. 1 (b) (Art. 5-1-b)), as
distinct from "lawful detention of a person after conviction by a
competent court" (Article 5 para. 1 (a) (Art. 5-1-a)). The Commission
has found that detention ordered by an enforcement court for non-
compliance with an injunction issued in unfair competition proceedings,
after the unsuccessful imposition of fines, falls to be considered
under Article 5 para. 1 (b) (Art. 5-1-b)of the Convention (No.
12827/87, Dec. 4.7.88, unpublished).
The measure at issue therefore did not involve the determination
of a criminal charge against the first applicant company.
b. The Commission has next to examine whether it involved the
determination of the first applicant company's civil rights and
obligations.
The fine was imposed in the context of proceedings for the
enforcement of an injunction issued under private law. The Commission
recalls in this respect that, as a general rule, enforcement
proceedings following a civil court judgment do not come within the
scope of Article 6 para. 1 (Art. 6-1) of the Convention. They do not
themselves determine a dispute ("contestation") relating to civil
rights, but presuppose a prior determination of these rights by an
independent court. However, in the context of enforcement proceedings
questions might have to be determined which involve a decision on the
civil rights of the parties, such as partition of property (No.
10757/84, Dec. 13.7.88, D.R. 56, p. 36). The Convention organs when
examining whether the "reasonable time" requirement under Article 6
para. 1 (Art. 6-1) of the Convention has been complied with have
repeatedly qualified enforcement proceedings as the second stage and
natural extension of the proceedings in which a civil right had been
determined and found that Article 6 para. 1 (Art. 6-1) applies to them
(see Eur. Court HR, Silva Pontes v. Portugal judgment of 23 March 1994,
Series A no. 286-A, p. 13, para. 29; Scollo v. Italy judgment of 28
September 1995, Series A no. 315-C, p. 55, para. 44; Zappia v. Italy
judgment of 26 September 1996, paras. 18-20, to be published in Reports
1996-I).
In the present case the first applicant company brought an action
for discontinuation of the enforcement proceedings in which it argued
that it was not bound by the injunction issued and that the party
seeking its enforcement was therefore not entitled to do so. These
proceedings, differing from the normal course of enforcement
proceedings, therefore involved a determination of the first applicant
company's civil obligations. The civil limb of Article 6 para. 1
(Art. 6-1) of the Convention thus applies.
c. As to the substance of the above complaint,the Commission recalls
that the existence of impartiality for the purposes of Article 6 para.
1 (Art. 6-1) must be determined according to a subjective test, that
is on the basis of the personal convictions of a particular judge in
a given case and also according to an objective test, that is
ascertaining whether the judge offered guarantees sufficient to exclude
any legitimate doubt in this respect (Eur. Court HR, Hauschildt v.
Denmark judgment of 24 May 1989, Series A no. 154, p. 21, para. 46; Fey
v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12,
para. 28; Padovani v. Italy judgment of 26 February 1993, Series A no.
257-B, p. 20, para. 25).
Under the subjective test, the personal impartiality of a judge
must be presumed until there is proof to the contrary (cf. Eur. Court
HR, Bulut v. Austria judgment of 22 February 1996, para. 32, to be
published in Reports 1996-I; and Padovani judgment, op. cit., p. 20,
para. 26). As to the objective test it must be determined whether,
quite apart from the judge's personal conduct, there are ascertainable
facts which may raise doubts as to his impartiality (Fey judgment op.
cit., para. 30; Padovani judgment op. cit., para. 27).
The first applicant company submits that the Chamber of the
Supreme Court was biased against it, this being apparent from the drop
of the rate of successful appeals after changes in the composition of
the Chamber had taken place.
The Commission observes that the first applicant company has not
challenged for bias any of the individual judges of the Chamber of the
Supreme Court or the whole Chamber. But even assuming that the first
applicant company has exhausted domestic remedies as required by
Article 26 (Art. 26) of the Convention, the Commission finds that the
first applicant company's submissions do not disclose any element to
cast doubt on the impartiality of the judges of the Chamber in question
under the subjective test.
As regards the objective test the Commission observes that it
does not jeopardise the impartiality of a judge if he has previously
dealt with other cases brought against the same person (see
No. 11831/85, Dec. 9.12.87, D.R. 54, p. 144). Further, the Commission
notes that it is common in the Convention countries that higher courts
deal with similar or related cases in turn and that the European Court
has found this unobjectionable from the point of view of the right to
a fair trial (Eur. Court HR, Gillow v. the United Kingdom judgment of
24 November 1986, Series A no. 109, p. 28, para. 73).
The mere fact that, as contended by the applicants, the same
Chamber of the Supreme Court had in the past decided several cases
against the first applicant company, does not objectively justify any
fears as to a lack of impartiality on the part of the judges concerned.
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 first applicant company complains further under Article 6
para. 1 (Art. 6-1) of the Convention that the proceedings before the
Supreme Court were unfair in that the Supreme Court carried out
investigations of facts and assessed them differently from the lower
courts, without giving the applicant company the possibility to comment
thereon and to present its legal arguments. The contested part of the
Supreme Court's judgment concerns the statement (underlined in the
text) that "the responsibilities of the Krone-Verlag GmbH & Co KG of
which the first applicant company was a general partner had been
contractually confined to the editorial part - probably after the
injunction in the unfair competition proceedings had been granted."
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 (No. 458/59, 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; No. 21283/93, Dec. 5.4.94,
D.R. 77-A, pp. 82, 88).
It falls to the Commission to decide whether the contested
proceedings considered as a whole were fair within the meaning of the
Convention. The effect of Article 6 para. 1 (Art. 6-1) is, inter alia,
to place the tribunal under a duty to conduct a proper examination of
the submissions, arguments and evidence adduced by the parties (Eur.
Court HR, Kraska v. Switzerland judgment of 19 April 1993, Series A
no. 254-B, p. 49, para. 30).
The Commission notes that the District Court stated in its
decision of 9 February 1994 relating to the proceedings for
discontinuation of the enforcement that "the plaintiff (first applicant
company, Krone-Verlag GmbH) and the limited partnership, whose general
partner the plaintiff was, were contractually confined to the editorial
part". Furthermore the first applicant company itself alleged in the
action for discontinuation of the enforcement proceedings that the
business of this limited partnership had been transferred to a new
company in 1990 - after the injunction had been granted. In its
extraordinary appeal on points of law of 3 August 1994 the opposing
party raised the issue whether the internal distribution of tasks in
publishing the newspaper could relieve the first applicant company from
its obligations to ensure compliance with the injunction granted and
the first applicant company had the possibility to comment on this
issue.
The Commission considers that, while the Supreme Court drew
different conclusions from the facts as established by the lower
courts, the proceedings did not involve any question which could not
be adequately resolved on the basis of the case-file. Moreover, in
view of the extraordinary appeal on points of law filed by the opposing
party and the arguments raised therein, the fact that the first
applicant company's case could be open to a different legal
qualification could not have come as a surprise. Considering the
entirety of the proceedings before the Austrian courts and also the
nature of issues relevant in the first applicant company's case, the
Commission finds that there is no appearance of a violation of the
first applicant company's right to a fair hearing.
It follows that this part of the application is manifestly ill-
founded within the meaning of Art 27 para 2 of the Convention.
3. The first applicant company complains about an infringement of
the presumption of innocence in the enforcement proceedings because the
enforcement court imposed a fine on it although it had not itself
breached the injunction. It relies on Article 6 para. 2 (Art. 6-2) of
the Convention, which provides that "everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law".
The Commission considers that in deciding in the enforcement
proceedings whether the first applicant company was responsible for a
breach of the injunction the courts established the civil
responsibility of the first applicant company for its commercial
practices. These findings do not amount to a statement of guilt
regarding criminal responsibility in violation of Article 6 para. 2
(Art. 6-2) of the Convention (see No. 9295/81, Dec. 6.10.82, D.R. 30,
p. 227; No. 18411/91, Dec. 12.1.94, unpublished).
Accordingly, there is no appearance of a violation of the first
applicant company's rights under Article 6 para. 2 (Art. 6-2) 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.
4. The first applicant company complains that its right not to be
subjected to retroactive punishment was violated in that the Supreme
Court in its judgment extended the scope of Section 355 of the
Enforcement Act in a way infringing the principle of "nullum crimen,
nulla poena sine lege". It relies on Article 7 para. 1 (Art. 7-1) of
the Convention, which reads as follows:
"No one shall be held guilty of any criminal offence on account
of any act or omission which did not constitute a criminal
offence under national or international law at the time when it
was committed. Nor shall a heavier penalty be imposed than the
one that was applicable at the time the criminal offence was
committed."
Having regard to its above finding that the imposition of fines
on the first applicant company in the enforcement proceedings did not
involve the determination of a criminal charge within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention, the Commission finds
that Article 7 para. 1 (Art. 7-1) of the Convention does not apply
either.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
5. The second applicant company raises the same complaints under
Articles 6 and 7 (Art. 6, 7) of the Convention as the first applicant
company.
The Commission observes, however, that the second applicant
company was not a party to these proceedings and that no judgment has
been rendered against it by the Austrian courts. In these
circumstances, the second applicant company cannot claim to be a victim
of an alleged violation of Articles 6 and 7 (Art. 6, 7) of the
Convention in these proceedings.
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.
6. The second applicant company also complains under Article 1 of
Protocol No. 1 (P1-1) that its property rights were infringed because
of the imposition of fines on other companies of the media group it
belongs to because under the contracts concluded between it and the
other companies it had to refund these fines. It also invokes Article
14 (Art. 14) of the Convention in this respect.
The Commission observes, however, that the basis for the
obligation to refund the fines was a private contract which the second
applicant company had freely concluded with other companies. There can
therefore be no question of any State interference with the second
applicant company's rights under the Convention.
It follows that this part of the application is incompatible
ratione personae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber