CASE OF JERUSALEM v. AUSTRIA
Violation of Art. 10;Not necessary to examine Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
9. The applicant is an Austrian citizen, residing in Vienna. At the relevant time she was a member of the Vienna Municipal Council (Gemeinderat), which also acts as the Regional Parliament (Landtag). 10. 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 [Institut zur Förderung der Psychologischen Menschenkenntnis – Institute for a Better Understanding of Human Psychology], which has not long been in existence in Austria but which has existed for several years in Switzerland, where it is called the VPM [Verein zur Förderung der Psychologischen Menschenkenntnis – Association for a Better Understanding of Human Psychology] has had a certain influence on the drugs policy of the Austrian People’s Party.” 11. The applicant then stated that the Austrian People’s Party had issued a publication on drugs policy in cooperation with the IPM, and had organised information activities involving public discussions together with the 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. 12. The debate in the Municipal Council then turned to the drugs policy and the applicant, in a further speech, criticised the cooperation between the Austrian People’s Party and the IPM, and made further statements on the nature and activities of the IPM. 13. On 27 October 1992 the IPM, an association established under Austrian law, and the VPM, an association established under Swiss law, filed a civil-law action under Article 1330 of the Austrian Civil Code against the applicant with the Vienna Regional Court for Civil Matters (Landesgericht für Zivilrechtssachen). The associations requested the court to issue an injunction against the applicant prohibiting her from repeating the statement that the IPM was a sect, ordering her to retract this statement and directing the publication of the applicant’s retraction in several Austrian newspapers. 14. 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 on the internal structure and activities of the plaintiffs. She proposed that four witnesses be heard. She also requested that the court obtain an expert report. 15. On 16 February 1993 the IPM and the VPM altered 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. 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 ...” 16. 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. 17. On 22 February 1993 a hearing took place before the Regional Court. The 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. 18. On 8 April 1993 the Regional Court granted the injunction. It ordered the applicant not to repeat her statements that the IPM and the VPM were sects of a totalitarian character. Furthermore, the 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 judgments, 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 to be untrue. The applicant had disseminated unfounded assumptions as proven fact and had therefore acted negligently. As the damage to the plaintiff associations’ earnings and livelihood was manifest, the Court granted the requested injunction under Article 1330 § 2 of the Civil Code. 19. 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 structure), 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. 20. 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 quashed the order for a retraction and its publication. 21. It confirmed the Regional Court’s view that the applicant’s allegations were statements of fact. Contrary to the opinion 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 Article 1330 of the Civil Code. In that case, the applicant had to prove the truth of her allegations. 22. 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 Article 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, even though the applicant’s statements had been reported in the newspapers. 23. On 18 August 1994 the Supreme Court (Oberster Gerichtshof) 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. 24. Article 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, income or livelihood and if the untruth of the statement was known or must have been known to him. In such a case the public retraction of the statement may also be requested ...” 25. Members of the Vienna Municipal Council enjoy a limited parliamentary immunity. They are exempt from legal proceedings for anything said by them in the course of debates in the Municipal Council in so far as the Municipal Council sits as the Parliament of a Land (Articles 57, 58 and 96 of the Federal Constitution). However, this privilege does not extend to sessions of the Municipal Council sitting as the local council. The reason is that Vienna, under the Austrian Constitution, has a dual function, being at the same time a Land and a local council (Article 108 of the Federal Constitution).