CASE OF WORM v. AUSTRIA
Preliminary objection dismissed (Article 35-1 - Six month period);No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
6. The applicant, Mr Alfred Worm, is a journalist. He was born in 1945 and lives in Vienna. 7. At the material time the applicant was working for Profil, an Austrian periodical dealing mostly with politics. For several years, he investigated into and reported on the case of Mr Hannes Androsch, a former Vice-Chancellor and Minister of Finance, who was involved in certain criminal proceedings. 8. In 1989 Mr Androsch had been convicted by the Vienna Court of Appeal (Oberlandesgericht) of having made false statements as a witness on two occasions. The court found that he had, before a parliamentary investigating committee (Untersuchungsausschuß), wrongly stated that certain amounts of money had been put at his disposal by a Mr S., whereas in fact they had been transferred from anonymous bank accounts operated by his wife and himself. Furthermore, in the context of criminal proceedings against financial officers charged with abuse of authority, Mr Androsch had stated that several anonymous accounts were held by a Mr S., whereas in fact they were operated by his wife, his mother and himself. 9. In 1991 the Vienna Regional Criminal Court (Landesgericht für Strafsachen), sitting as a court of two professional judges and two lay judges (Schöffengericht), conducted criminal proceedings against Mr Androsch concerning charges of tax evasion. It held hearings, inter alia, on 25 and 26 May 1991. On 8 October 1991 Mr Androsch was convicted of having evaded taxes between 1973 and 1981. He was sentenced to a fine of 1.8 million Austrian schillings (ATS). 10. On 1 July 1991 Profil had published a two-page article written by the applicant, relating to the above proceedings. It read as follows: “ADJOURNED FOR REFLECTION A criminal court sitting with lay judges spent two days considering Hannes Androsch's tax evasion. The atmosphere during the trial was glacial. ‘Above all, there were to be no mistakes during the proceedings. The case was to be handled with common prudence, properly and to the best of our knowledge and belief – but not with kid gloves!’ (Mr Heinz Tschernutter, tax investigator and witness, when asked what principles had governed the hearing of the Androsch case.) On the day before the trial [the Austrian newspaper] Die Presse dropped the bombshell that was meant to shake all Austria. Lawyer Herbert Schachter was quoted as saying: ‘I’m sure that Dr Androsch will present his case in an impressive manner.’ The horizon was darkened by this impressive presentation and the earth shook as the accused worsened his lousy position by taking refuge in lapses of memory (‘I can't remember’ – ‘I don't have any detailed knowledge’) and by attempting to shift the blame onto others (‘I was represented by tax advisers in all those years’) or by playing the animal that has been maltreated (‘There is not a single large-scale business in the whole of Austria that has been subjected for years to as many inspections as I have been’). Hannes Androsch's biggest problem is Hannes Androsch. His second biggest problem is his lawyer, Herbert Schachter. Together, defending counsel and client are invincible. If blatant scorn could change the temperature, the courtroom would be covered by a thick layer of ice. The patient judge, Friedrich Zeilinger, enquires, ‘So, what exactly happened?’ The blasé defendant replies, ‘I would ask you to infer exactly what happened from the file. You have the documents in front of you – I haven't.’ At another point Androsch said, with a disdainful gesture towards Friedrich Matousek: ‘You, my dear Public Prosecutor ...’ in a tone as if to say ‘You wretched worm!’ Androsch underestimates the judiciary. Once again. Judge Zeilinger knows the file inside out, as was clear from each of his questions. The public prosecutor, Matousek, is able to find his way around in the dark generated by the ‘international legal adviser's’ murky financial deals, and, after all, the prosecuting authorities have been examining the flow of funds to and from Hannes Androsch for a good decade. The accused mistook the excessively polite and markedly accommodating manner of the presiding judge for weakness. He has also known the public prosecutor for years and yet still doesn't know him properly. Matousek speaks quietly and slowly so that one can follow what he says, and acts in a spectacularly unspectacular manner. Only the arrogant interpret his lack of grand gestures as cluelessness. Even the public prosecutor did make one mistake, however, when he cited the judgment of the Court of Appeal in the proceedings against Androsch for giving false evidence (now concluded) and referred to ‘long-term, ingenious and sophisticated linking of accounts’. The alleged tax evasion was perhaps ‘long-term’ but by no means ‘ingenious and sophisticated’. The opposite was true: anyone venturing into the maze of Androsch's accounts containing undeclared money is amazed by the structure's simplicity. It is not only wholly lacking in sophistication but is almost astoundingly crude. Crude not because Androsch lacked intelligence but rather because it was based on the cast-iron foundation of the misplaced loyalty of officials. While Androsch was Finance Minister, until January 1981, he could rely on the zealous but unlawful obedience of a number of powerful officials. As soon as Androsch left, those officials had their hands full concealing their complicity in the cover-up. Admittedly, a whole string of other officials, by no means excessively brave but simply law-abiding, attempted again and again to ensure that the law prevailed. They foundered, however, on practicalities. The team led by the Carinthian tax investigator, Adolf Panzenböck (1982 to 1984) certainly gathered all the relevant details, but the head of one of the Vienna tax offices who had been in charge of the case for only a day and a half issued a clean bill of health. And last week, when they appeared as witnesses, the tax officials Walter Handerek, Heinz Tschernutter and Gerhard Berner, who reopened the file between 1985 and 1988, were treated by defending counsel Herbert Schachter as though they were the accused rather than Androsch. It has been known since 1980 that Androsch evaded taxes. The legal proceedings which were adjourned on Friday furnished further proof that for years the accused escaped prosecution thanks to the zealous obedience of officials. When this was no longer possible as an independent judge was in charge of the investigations, Androsch's advisers took every opportunity to delay the proceedings. It is both symptomatic and revealing that Androsch told the trial court again and again that ‘seven inspections’ had been carried out and on each occasion had found in his favour, and that it was very unfair that just the eighth inspection should shatter the ideal world of his illusory innocence. Everyone except him is to blame for this. Androsch has in the meantime become so completely immersed in the role of the innocent victim that he cannot subjectively conceive of ever having been the guilty party. From an objective point of view, it should be pointed out in Androsch's favour that there may be several people in Austria who in nearly two decades (from 1965 to 1983) have evaded more than 6.3 million schillings in tax without, however, being subjected to such intensive publicity. On the other hand, no Austrian Finance Minister has simultaneously operated seven accounts containing undeclared funds. And, as the public prosecutor put it, although the origin of part of the money had been established, approximately five million schillings were left from unknown sources. It was impious of Androsch to wheel out his ‘adoptive uncle’ again at the trial. Admittedly, he argued eloquently that the ‘adoptive uncle’ was actually an ‘adoptive father’, but nonetheless the name of a dead person had been taken in vain. Androsch alarmingly implicated not only his ‘adoptive father’ Gustav Steiner but also his father-in-law Paul Schärf in these financial proceedings. Both were induced to sacrifice themselves for Androsch and to assume a responsibility for undeclared funds and fiduciary relationships which they had never had. The investigating judge Anton Zelenka and subsequently the tax authorities and other judges (Josef Zehetmayer and later the Court of Appeal) proved long ago that Androsch was lying on this point. The flow of funds into and out of the seven accounts containing money not declared to the tax authorities allows of no other interpretation than that Androsch was evading taxes. His defence in court was disgraceful; after so many years one would at least have expected properly constructed arguments. Each time Judge Zeilinger asked him a specific question he either took refuge in lapses of memory or blamed his ‘adoptive father’. He even trotted out the late Sir Arthur Stein, the explorer of the Silk Road, from whom he claims to have received a legacy. No new submissions were made in court – either as regards the accounts containing undeclared money or as regards the funding for his villas. Anyone who had expected Androsch to tell all and, as announced in the newspapers, to reveal new facts and adduce convincing arguments in his defence was bitterly disappointed. Only in respect of the charges of ‘covert distribution of profits’ was there any legal skirmishing. Mr Schachter told the court that Androsch was a ‘victim of politics’. ‘Crimes had been attempted’ against Androsch and his client had always had ‘opponents who had gone as far as attempting to destroy Androsch psychologically and physically’. Bruno Kreisky and others were to blame for this. The court kept trying very gently to bring the defendant back down to earth from his long-winded waffling. And each time he replied ‘I can't say. After all, I do have other things to do’ (i.e. than grapple with such stupid questions). If necessary, the authorities can always be blamed for everything. In the instant case this cliché clearly did not apply to Judge Zeilinger. For two mornings he demonstrated drawing-room justice at its best. The judge forced himself to be polite even when he was clearly irritated by the defendant's bored self-assurance. On the very first day of the trial an area of psychological tension built up which the former Minister clearly misinterpreted. From time to time the 53-year-old slipped into the role of a public speaker talking politics. He paid less and less attention to the judge's questions and treated the public prosecutor with increasingly provocative contempt. He turned to look more and more often at the public in the gallery, seeking approval, and his gestures increasingly reminded one of the self-satisfied, powerful Vice-Chancellor and Finance Minister accustomed to victory. In those circumstances serious tactical errors were made. Defence counsel interrupted the judge and Androsch succumbed to his own charm. He talked and talked, a volubility that the Kronen Zeitung mistook for ‘brilliant rhetoric’. In reality the defendant was distancing himself as much as possible from his own responsibility. Others were to blame. Judge Zeilinger did not lose control of the situation for a second, however. From time to time, as was apparent from his posture, he had a sharp word on the tip of his tongue, but he never actually uttered it. The defendant sensed weakness and made full use of his own – supposed – strength; he forged a link with the public while severing the one with the court. Judge Zeilinger had prepared for this trial keenly and diligently. By citing facts he kept forcing Androsch into corners from which he could only escape by taking refuge in memory lapses. In many major trials the sinner has been given a fair chance to the very end. Androsch too had a fair chance last Friday; of twelve defence motions, ten were dismissed and two allowed. The court admitted evidence as to whether in the tax proceedings against Androsch any unlawful influence had been exerted or instructions issued which adversely affected the taxpayer. In the next stage of trial, in August or September (the court even took account of defence counsel's summer holidays!), officials from the Regional Tax Office and the Ministry of Finance will therefore be heard as witnesses. There comes, however, a point in every trial after which the court expects some sign of understanding. It hopes for a trace of humility that may be appraised as a mitigating circumstance. The defendant has shown no humility to date, not even for a second. But he now has a few weeks to consider whether it is consonant with the principles of a State based on the rule of law for a Finance Minister and his family to have at their disposal accounts containing millions in undeclared funds. It is now for him to display greatness. The judicial system has uncovered serious matters. The court nevertheless was guided wholly by the principles of fairness up to the very last moment of the trial last Friday, when it adjourned the proceedings. For reflection.” 11. Mr Worm was charged under section 23 of the Media Act (Mediengesetz – see paragraph 23 below) for having exercised prohibited influence on criminal proceedings (verbotene Einflußnahme auf ein Strafverfahren). 12. On 12 May 1992 the Vienna Regional Criminal Court, sitting with one judge (Einzelrichter), acquitted the applicant. It found that the text in issue was not capable of influencing the outcome of the proceedings against Mr Androsch and that it was not established that the applicant had acted with such an intention. 13. The court recalled that in 1991 Mr Androsch had been convicted of tax evasion (see paragraph 9 above). In establishing whether the impugned article was capable of influencing the result of these proceedings, the court noted that the wording and content of the article as a whole, as well as the development of the proceedings reported upon, the person of the accused, and the person of the applicant had to be taken into account. The article, unlike court reports of the scandal press, analysed the conduct of the presiding judge, the public prosecutor, defence counsel and in particular the accused, Mr Androsch, almost as a psychologist would have done. Furthermore, the court found that it was clear for every reader, who was vaguely familiar with the issue, that the applicant, who had been working for Profil for many years, had intensively dealt with the so-called “Causa Androsch” and had frequently reported on it. It appeared from the article that the applicant assumed that the investigations carried out by the tax authorities were correct. He subjected the statements made by the accused at the trial to a critical psychological analysis. However, his way of writing and the wording used were not capable of influencing these proceedings. Even to a lay judge, the applicant's person and his activities as a journalist in the Androsch case were well known. Thus he would not expect the applicant to give a neutral account of the proceedings. Moreover, it had not been established that the applicant had acted with the intention of influencing the outcome of the proceedings, in particular as it appeared that he was convinced that Mr Androsch would in any event be convicted. 14. On 19 October 1992 the Vienna Court of Appeal, sitting as a court of three professional judges on an appeal by the public prosecutor, held a hearing in the presence of the applicant and his counsel. Mr Worm was questioned and stated in particular that the first sentence of the incriminated passage, namely that “the flow of funds into and out of the seven accounts containing money not declared to the tax authorities allows of no other interpretation than that Androsch was evading taxes”, was a quotation from the public prosecutor's statement during the trial. The latter had also frequently made reference to Mr Androsch's conviction for having made false statements as a witness (see paragraph 8 above). 15. At the end of the hearing, the operative provisions of the judgment as well as the relevant reasons were read out. The court convicted the applicant of having exercised prohibited influence on criminal proceedings and imposed on him forty day-fines of ATS 1,200 each, that is ATS 48,000, or twenty days' imprisonment in default of payment. The publishing firm was made jointly and severally liable for payment of the fine. 16. The full text of the judgment was served on the applicant on 25 March 1993. 17. The court held, inter alia: “The prosecution appeal is therefore well-founded. It rightly takes as its starting-point that the offence defined in section 23 of the Media Act must be classified as a potentially endangering offence [abstraktes Gefährdungsdelikt] … In general, a potentially endangering offence is defined as conduct typically capable of bringing a dangerous situation into existence, even if in any given case no one is actually exposed to the danger concerned ... The law regulates only the offender's conduct – in this case comment on the value of evidence – and links to it the inference that such comment is also capable of influencing the outcome of criminal proceedings. A potentially endangering offence accordingly amounts to conduct which is criminal irrespective of any result it may have [schlichtes Tätigkeitsdelikt] ... The considerations set out in the judgment at first instance as to the extent to which the comment on Mr Androsch's defence was capable of influencing the outcome of the criminal proceedings were therefore pointless ... The defendant's replies under examination in criminal proceedings constitute evidence ... [The passage in issue] constitutes (unfavourable) comment on the value of the answers given by Mr Androsch, not just – as the court below held – a critical psychological analysis ...” 18. It observed that “the objective element of the offence defined in section 23 of the Media Act is constituted not only by unfavourable comment on evidence but also by favourable comment”. 19. The Court of Appeal also contested the Regional Court's assumption that everybody, including the lay judges, knew the applicant's long-standing commitment in the Androsch case and would therefore not be influenced by his article. It was in no way certain that the lay judges regularly read Profil. On the contrary, in spectacular proceedings like the ones in issue, it happened frequently that lay judges would follow the reports in papers they did not usually read. There was no doubt that, at least with regard to the lay judges, the reading of the incriminated article was capable of influencing the outcome of the criminal proceedings. 20. The court added: “[The above finding] is all the more true in the present case because it can be inferred from the article that the accused wished to usurp the position of the judges dealing with the case. The objective element of the offence defined in section 23 of the Media Act is accordingly made out. As regards the subjective element, it should be observed that it is hard to understand why the court below should have concluded that there was no intention to influence the outcome of the trial when that intention was, on the contrary, quite obvious.” 21. The court further found that the applicant's expertise and involvement in the subject matter rather reinforced the impression that he had written the article with the intention of influencing the outcome of the proceedings. He had researched into the case since 1978 and had written more than a hundred articles about it. From the beginning he had been convinced that Mr Androsch had committed tax evasion. In the article in issue he had not only criticised Mr Androsch's statement but had also anticipated the outcome of the proceedings, namely the conviction of the accused. 22. The judgment ended as follows: “Even the quotation of the answer given by Mr Heinz Tschernutter placed at the top of the article – ‘Above all, there were to be no mistakes during the proceedings. The case was to be handled with common prudence, properly and to the best of our knowledge and belief – but not with kid gloves!’ – gives the average reader the impression that the court was being advised and urged to follow the same approach, in other words not to make any mistakes and not to handle Mr Androsch with kid gloves.” 23. Section 23 of the Media Act (Mediengesetz) is entitled “Prohibited influence on criminal proceedings” (Verbotene Einflußnahme auf ein Strafverfahren) and reads as follows: “Anyone who discusses, subsequent to the indictment ... [and] before the judgment at first instance in criminal proceedings, the probable outcome of those proceedings or the value of evidence in a way capable [geeignet] of influencing the outcome of the proceedings shall be punished by the court with up to 180 day-fines.” 24. Article 77 of the Code of Criminal Procedure reads: “(1) Judicial decisions are made public either by being read out in court or by service of the original or a certified copy thereof. (2) When read out, judgments must be put on record. Upon request, anyone concerned may receive a copy of the judgment.” In practice, written copies of decisions such as the one at issue in the present case are automatically served on the persons concerned. 25. Under Austrian criminal procedural law, the time allowed for appeals begins to run from the date when the written version of the decision appealed against has been served on the party concerned (Article 79 § 2 of the Code of Criminal Procedure).