5.  The applicant company is the owner and publisher of the weekly newspaper “Falter”. It has its seat in Vienna. 6.  In the autumn of 2000 the police officer Mr Kleindienst revealed that he and some colleagues had repeatedly transmitted data from the central police computer to officials of the Austrian Freedom Party (FPÖ). Subsequently criminal investigations were commenced against several persons, amongst them Mr Kabas, leader of the Vienna branch of the FPÖ, on suspicion of having assisted in abuse of authority (Amtsmissbrauch). On 7 May 2002 the Vienna Public Prosecutor's Office closed the file against Mr Kabas and criminal proceedings against him were discontinued. In the autumn of 2002 the Vienna Regional Court (Landesgericht) convicted Mr Kleindienst and the FPÖ official Mr Kreiβl and sentenced them to six months' imprisonment suspended on probation. 7.  Subsequently, in its issue of “Falter” of 25 September 2002 the applicant company published the following article:
“Spineless justice
COMMENT Informer trial ends with guilty verdicts: shadow cast over public prosecutor's office
The “informer affair” – the case about whether FPÖ politicians obtained secret data from the police computer system in return for money over a period of many years – has provisionally come to a close. Josef Kleindienst, the former FPÖ police trade unionist who set the case in motion with a full confession, and the police officer Michael Kreißl, the former right-hand man of the leader of the Vienna branch of the FPÖ, Hilmar Kabas, were given six-month suspended prison sentences. Among other things, they had disclosed official secrets concerning a drugs raid, allowing the Vienna FPÖ the time to publish press advertisements stirring up feelings against “1,000 Nigerians”. The judgments are not yet final.
The trial was highly instructive. At the hearing the public prosecutor, Michael Klackl, spoke for the first time of “revealing insight into the handling of sensitive police data” and criticised the “alarming networking between politicians [he presumably did not dare to say FPÖ – ed.] and the police”. Josef Kleindienst, whose detailed statements on the informing system within the FPÖ were nevertheless considered much too “vague” by the Ministry of Justice – headed by Mr Haider's friend Dieter Böhmdörfer – to justify bringing charges against high-ranking FPÖ politicians, was described by the independent criminal judge Kurt Wachsmann in the reasoning of the judgment as a person of “absolute credibility”.
How strange. Why, then, were no other high-ranking FPÖ politicians put in the dock? Why were the proceedings against Jörg Haider, Ewald Stadtler, Karl Schnell and 71 other accused FPÖ officials not energetically pursued, even though the “credible” Kleindienst had so heavily incriminated them? Why were the proceedings against the beneficiaries of the informers' services, the politicians, discontinued at a time when not even all the witnesses had been examined? Why did they never have to appear in a public arena before an independent judge, even though they had boasted in Parliament that they had access to secret police files? Could it have been because of political pressure? Because of threats by the FPÖ leadership against public prosecutors, judges and investigators? The public prosecutor's office is not required to justify itself. The notes it keeps in its so-called “journals” are secret.
The “informer affair” involves much more than just a few corrupt police officers and a web of officials, journalists and politicians who for years went unpunished in downloading secret material about political opponents from the police computer system and distributing it among themselves with a view to making public attacks – especially in the Kronen Zeitung – on people they did not like. The facts of the case suggest that the public prosecutor's office allowed itself to be intimidated. That it made such extensive use of its discretionary powers in assessing a witness's “credibility” that independent judges were left out of the picture. At no time did the prosecutors entrust the “preliminary investigation” of the case to an independent investigating judge, as they would in the case of any common shoplifter. They constantly sought to remain in charge of the proceedings in the context of “preliminary inquiries”. The public prosecutor's office was anxious about digging its teeth into the angry FPÖ senior politicians, whose counsel, as the Minister for Justice, was also the highest representative of the State prosecution service. It will not bite barking dogs.
The bourgeois revolutions of the nineteenth century spawned the institution of the independent judge. The search for justice was henceforth supposed to take place in the courtrooms and not in political cabinets. To this day judges cannot be removed from office, are not subject to any instructions, and are supposed to represent a third branch of State power, which can treat everyone the same – above all, even the King – without having to fear personal consequences. However, Austrian criminal law in practice deprives this fundamental principle of all effect. What comes before a judge is decided by the public prosecutor, who is subject to instructions from the private office of the Minister of Justice. Prosecutors know that their career may depend on the click of a minister's fingers. That turns them into cowering vacillators rather than energetic investigators. Instead of raking through the muck and carrying out painstaking investigative work, they look upwards so as not to fall down. Justice ministers from all parties know why they do not wish to relinquish their right to issue instructions.
This brings us to the case of the leader of the Vienna branch of the FPÖ, Hilmar Kabas. Initially the fraud squad actually wanted him to be detained on remand. Kleindienst had not only stated that he had been bribed by Kabas; he also confessed to having handed him a secret file on nuclear crime. Subsequently, according to Kleindienst, they celebrated this coup over boiled beef in the Plachutta restaurant together with a Krone reporter. The judge believed Kleindienst's version of events and convicted him of abusing his office. Kabas should really also have been convicted by this stage as the person receiving the file. Kabas admitted having met at Plachutta but denied having taken possession of a file. The justice system also believed this version, resulting in a grotesque situation in which the person who had handed over the secret file was convicted but the high-ranking official who had received it walked away free. At the hearing – at which Kabas gave evidence under oath as a witness, although he could have asserted his right not to do so – the FPÖ agitator was unable to remember any files being handed over. The judge observed: “This is the question: can he [Kabas – ed.] no longer remember? After all, he does have other things to deal with at present.” Rarely can possibly false evidence have been downplayed so elegantly.
The public prosecutor's office should now at least become active again and investigate Kabas either for giving false testimony or for abusing his office. The accusations against other leading politicians likewise appear in a new light now. Why should Kleindienst have appeared credible in one case but not in his many other confessions? In any event, the public prosecutor, Mr Klackl, will have “another thorough look” at the case concerning Kabas, as a spokesman for the public prosecutor's office confirmed.
One thing has become clear after the trial, however. In proceedings conducted in public by an independent judge the justice system can probe closer to the truth than in secret preliminary proceedings under the sole control of public prosecutors who are subject to instructions.
The “informer affair” may be resumed informally at any time. All that is required is the political will to allow the judges to do their work. The fact that political will is needed for the justice system to start working properly is frankly unacceptable.” 8.  Upon appeal, the Vienna Court of Appeal (Oberlandesgericht) acquitted Mr Kreiβl and Mr Kleindienst on 12 February 2004. 9.  On 27 September 2002 Mr Kabas instituted proceedings claiming compensation and publication of the judgment under section 7b of the Media Act (Mediengesetz) with the Vienna Regional Criminal Court (Landesgericht für Strafsachen). He submitted that the following passages of the above article were in violation of his right to be presumed innocent:
“The 'informer affair' involves much more than just a few corrupt police officers and a web of officials, journalists and politicians who for years went unpunished in downloading secret material about political opponents from the police computer system and distributing it among themselves with a view to making public attacks – especially in the Kronen Zeitung – on people they did not like...
Kabas should really also have been convicted by this stage as the person receiving the file...
... a grotesque situation in which the person who had handed over the secret file was convicted but the high-ranking official who had received it walked away free...
...The public prosecutor's office should now at least become active again and investigate Kabas either for giving false testimony or for abusing his office...” 10.  The Regional Court discontinued these proceedings on 13 October 2002. It noted that Mr Kabas had been subject of preliminary investigations (Vorerhebungen) relating to the “police information affair” which had been discontinued under section 90 § 1 of the Code of Criminal Procedure (Strafprozeβordnung). However, the guarantees of presumption of innocence under section 7b of the Media Act concerned only a person who was suspected of a criminal offence and was not yet convicted by final judgment. It did not apply once the criminal proceedings had been discontinued as from this time onwards any statement of a private person which was in violation with the presumption of innocence of another person constituted defamation under section 6 § 1 of the Media Act. 11.  Upon Mr Kabas' complaint, the Vienna Court of Appeal (Oberlandesgericht), on 6 June 2003, quashed this decision and remitted the case to the Regional Court. It noted that section 7b of the Media Act protected any person suspected of a criminal offence, regardless of the state of criminal proceedings and whether the person was suspected by official authorities. Having regard to the article as a whole and the impugned passages in particular, the court found that the conditions of applying section 7b of the Media Act to the present case were met. 12.  Having held a hearing, the Regional Court, on 22 July 2003, found that the impugned passages were in breach of the presumption of Mr Kabas' innocence as guaranteed under section 7b of the Media Act. It therefore ordered the applicant company to pay 2,500 euros (EUR) in compensation to Mr Kabas, to publish the judgment and to pay Mr Kabas' costs of the proceedings. It found that the article taken as a whole was based on the assumption that there were persons whose guilt was established but only some of them were prosecuted. The article's statements concerning the misconduct of the Public Prosecutor's Office and the Minister of Justice could only be understood in the way that the Public Prosecutor's Office, against its better judgment, had refrained from prosecuting clearly guilty criminal offenders. The article suggested that Mr Kleindienst's statement heavily charged Mr Kabas and conveyed that - if everything was perfectly above-board - Mr Kabas should now also be convicted. By calling the situation that Mr Kabas was not convicted “grotesque” the article not only established the juridical not maintainable presumption that a person who had received a file obtained in abuse of office had also committed an offence, but also suggested that this dealing with the matter was against all legal practice. The article conveyed to the reader that under duly conducted criminal prosecution the filing of an indictment against Mr Kabas and his conviction would merely be a matter of form. This message was presented as quasi established fact which was strengthened by the repeated reference to the judge who had considered Mr Kleindienst's statements as absolutely credible. The reader was given the impression that Mr Kabas was undoubtedly guilty and that his conviction was inevitable. The article had therefore crossed the threshold of the simple utterance of suspicion against Mr Kabas. 13.  On 31 October 2003 the applicant company appealed against the judgment, referring in particular to Article 10 of the Convention. 14.  On 15 March 2004 the Vienna Court of Appeal confirmed the Regional Court's judgment. It noted that the expression of an opinion about the Public Prosecutor Office's role in the “informer affair” proceedings and criticism on the discontinuation of the criminal proceedings against Mr Kabas fell under the applicant company's right under Article 10 of the Convention, but in the present case the impugned article went further and portrayed Mr Kabas as established guilty.