CASE OF ARMELLINI AND OTHERS v. AUSTRIA
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
5. The first applicant, Mr. H. Armellini, was born in 1961 and lives in Hard. The second applicant, Mr. F. Andres, was born in 1968 and lives in Bregenz. They are both journalists employed by the third applicant, Zeitungs- und Verlags GmbH, a limited liability company with its seat of business in Schwarzach. The applicant company publishes the regional newspaper Neue Voralberger Tageszeitung. 6. At the beginning of 2005 R.H., a German football referee, admitted to having participated in bet rigging (Wettbetrug) by manipulating football matches together with other persons, in particular the brothers F.S., M.S. and A.S.. R.H. told the police that he knew that football matches were also manipulated in Greece and Austria. As regards Austria, he referred to the football club Casino SW Bregenz, which still existed at the time of the events in 2005. 7. On 19 February 2005 an article written by the first and second applicants appeared in the Neue Voralberger Tageszeitung dealing with the German betting scandal’s links to Bregenz. 8. On the front page the headline, printed in a black box in white, read as follows: “Bregenz players bribed with 60,000 euros (EUR)” (“BregenzSpieler mit 60.000 € bestochen”). Below that headline, and still in the black box, were photographs of A.T., D.G. and A.I. and in a yellow box the phrase: “The investigators are at the heels of this trio: They may have manipulated matches for the betting-mafia!” (“Diesem Trio sind die Fahnder auf den Fersen: Es soll für Wett-Mafia Spiele manipuliert haben!”). In the upper left corner, a little box contained the following phrase: “Terrible suspicion against football pros confirmed:” (“Schlimmer Vedacht gegen Fussball-Profis erhärtet:”). 9. The main article on this subject, written by the first and second applicants, appeared on page 29. The headline read as follows: “Sold and betrayed the team for EUR 60,000?” (“Für 60,000 € Team verkauft und verraten?”). The article stated that the three football players had been bribed by the betting-mafia with EUR 60,000 for three matches. Bets for these Casino SW Bregenz matches had been placed in the Stuttgart area (Germany). In one match, which had ended with the result of 2:5 against Casino SW Bregenz, the goal-keeper, A.T., had made serious mistakes, as expected, and another player, A.I. had been replaced because of his poor performance. D.G. had also been playing in that match. The reason for the manipulations was the players’ financial difficulties: they had not received their salary for months. They had all signed a public statement prepared by the management of the club, denying their involvement in the betting scandal. 10. On the following page there was an article under the headline “A 5:2 result shocks a second time!” (“Ein 5:2 schockt ein zweites Mal!”) in which a football match of November 2004 was reviewed again and it was hinted that the poor performance of some of the players was connected to the betting-scandal. 11. On 15 March 2005 A.T., D.G. and A.I. filed a private prosecution (Privatanklage) against the applicants before the Feldkirch Regional Court. They argued that the accusation raised in the article published by the applicant company in its newspaper on 19 February 2005, that they had accepted bribes and manipulated football matches, was particularly serious for a professional football player and his professional reputation. This accusation, which was untrue, constituted defamation and they requested the court to convict the first and second applicants of this offence. They indicated in particular the following passages of the article as defamatory: (i) “Terrible suspicion against football-pros confirmed: Bregenz players bribed with EUR 60,000” (“Schlimmer Vedacht gegen Fussball-Profis erhärtet: Bregenz-Spieler mit 60,000 € bestochen”); (ii) “Sold and betrayed the team for 60,000 EUR?” (“Für 60,000 € Team verkauft und verraten?”); (iii) Bregenz players A.T., D.G. and A.I. were bribed 60,000 EUR for their team to lose three matches. (“Die Bregenz-Spieler A.T., D.G., und A.I. sollen bestochen worden sein. 60,000 €, damit ihr Team drei Spiele verliert.”); (iv) (Regarding the third plaintiff. A.T.) “A.T. had made contact with the Croatian betting-mafia.” (“Den Kontakt zur kroatischen Wettmafia soll A.T. hergestellt haben.”). 12. They also claimed compensation from the applicant company for the harm caused and requested that the judgment be published in its newspaper. 13. On 21 March 2005 the Feldkirch Regional Court ordered the applicant company to publish within five days a short piece (kurze Mitteilung) on the institution of criminal proceedings for defamation in respect of the article at issue. 14. On 8 April 2005 the applicants commented on the charges against them. They argued that they had only voiced a suspicion against the plaintiffs but that in any event their statements were true or, at least, the first and second applicants had had good reason to believe that they were true, which would rule out punishment. 15. Between 26 April 2005 and 13 December 2005 the Regional Court held four hearings in the case in which it heard several witnesses, inter alia, K.E., a freelance journalist working for the third applicant’s newspaper and who had contacted two informants who had wished to remain anonymous, and R.H. (see above). R.H. spoke about his contacts with the S. brothers since May 2004 and stated that one of them, F.S., had contacts in Austria, in particular the football club Casino SW Bregenz. In his opinion two players of that team were in contact with F.S., but he did not give any names or other details. 16. On 13 December 2005 the Regional Court found that the incriminated statements from the article of 19 February 2005 amounted to defamation, convicted the first and second applicants of that offence and sentenced them to a fine of EUR 3,680 and EUR 5,040 respectively, suspended on probation for a probationary period of three years. It ordered the applicant company to pay compensation of EUR 20,000 to each plaintiff and to publish an extract of the present judgment in its newspaper. 17. As regards the impugned article, the Regional Court paid particular attention to its visual appearance which, through its layout and presentation, in particular the printing in white in a large black box, conveyed to the reader the impression that the investigators were about to catch the pictured persons, who had filled their pockets with money by using dirty tricks. That first impression was not mitigated by the small reference to a suspicion in the upper left corner. The same was true for the headline on page 29 which read: “Sold and betrayed the team for EUR 60,000?”. This was a leading question which already contained the answer, and again that first impression could hardly be mitigated by the use of the subjunctive in some phrases of the article itself. The court therefore concluded that, seen as a whole, the article created the impression of being a statement of facts about the scandal and not a genuine expression of a suspicion. 18. The Regional Court therefore examined whether the accused had acted with due journalistic diligence when they considered these statements as true, or if they could prove their veracity. As regards the first element, the Regional Court accepted that there was a public interest in being informed on the question of whether or not players of the Casino SW Bregenz team had actually been involved in a betting scandal, but found that the first and second applicants had not acted with sufficient professional diligence. They had not personally conducted any research to verify the well-foundedness of the rumours but had merely relied on the research of K.E., a freelance collaborator with the newspaper, and had not checked the reliability of the sources - anonymous informants not known to them. Furthermore, they had not given A.T., D.G. and A.I. an opportunity to react even though there had been important new elements going beyond a general suspicion of involvement in the betting scandal to which they had already reacted in the past, namely that they had received a specific amount, EUR 60,000, for manipulating three football matches in the summer of 2005. 19. Turning to the proof of truth put forward by the applicants, the Regional Court observed that D.G. and A.I. had only been accused by K.E.’s two informants, X and Y, of being involved in the betting scandal, and these informants had not given any details nor stated that they themselves had witnessed a transaction. Also R.H., when heard by the court, did not refer to them directly or indirectly. There was clearly no proof of the truth. 20. As regards A.T., the Regional Court observed that he had lied when he stated that he did not know F.S., that F.S. had repeatedly visited Bregenz and that there had been football matches in which that player had given a very poor performance. Also the informants X and Y had stated that A.T. was involved in the betting scandal. These were arguments speaking in favour of his involvement in the betting scandal, but there were also arguments speaking against. It was understandable that A.T. had not admitted to knowing F.S. immediately, when all kinds of suspicions were discussed in connection with the betting scandal, as F.S. was one of the principal persons involved in that scandal. Furthermore, there was only evidence that F.S. had visited Bregenz on various occasions between autumn 2003 and May 2004, whereas the football match which, in the eyes of the authors of the article, was particularly suspicious had taken place in November 2004. According to the information given by X and Y, F.S. had paid the three accused football players EUR 60,000 in summer 2004 for three matches which had not yet taken place. That did not coincide with his habits as described in detail by R.H. Lastly, the amount claimed by X and Y, namely EUR 60,000, was not plausible, given that Casino SW Bregenz had been at the very end of the national football league table in Austria throughout the season of 2004/2005 and the quota for bets on that team losing a match would have been so small that it would not have justified the investment of a considerable sum. 21. Weighing all these elements, the Regional Court concluded that the applicants had not succeeded in proving the truth of the statements made in the impugned article. As regards the compensation under Section 6 of the Media Act, the Regional Court found that the particular seriousness of the accusations raised, and the adverse effect they could have on the career of a professional footballer, justified the sum of compensation granted. 22. On 26 January 2006 the applicants appealed against this judgment. They argued that the impugned article did not contain a statement of fact but merely a suspicion against A.T., D.G. and A.I. Moreover, the first and second applicants had fully complied with journalistic ethics. As K.E. and the applicants had acted as a team, there was no need to check further the information received and at that stage of the investigations there had also been no need to give the plaintiffs an opportunity to react to the information to be published. 23. On 6 April 2006 the Innsbruck Court of Appeal dismissed the appeal of the first and second applicants, but partially granted the appeal of the applicant company and reduced the amount of compensation to EUR 12,000 for each plaintiff. It found that the Regional Court had carefully weighed the arguments and had arrived at a correct and well-reasoned judgment. It agreed with the Regional Court that the first and second applicants had not reported on a mere suspicion but had presented their allegations as facts which they had failed to prove.