HAUPT v. AUSTRIA
Inadmissible
André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer
1. The applicant, Mr Herbert Haupt, is an Austrian national who was born in 1947 and lives in Spittal an der Drau. He was represented before the Court by Gheneff-Rami-Sommer Rechtsanwälte KEG, a partnership of lawyers with its office in Vienna. 2. 3. Between 2002 and 2004 the applicant was Chairperson of the Austrian Freedom Party (Freiheitliche Partei Österreichs) and, between 28 February 2003 and 20 October 2003, Vice Chancellor of the Federal Government. 4. On 19 September 2003 a comedy show was aired on ATV+ called “The Worst of the Week” (Das Letzte der Woche), in which a smiling host reported on events of the previous week in a satirical manner. His reports were accompanied by canned laughter. One of the reports concerned the fact that the applicant, then Vice-Chancellor of Austria, had become “godfather” to a baby hippopotamus at Vienna Zoo – a fundraising incentive designed to encourage people to become sponsors of the zoo. The report was illustrated firstly by the host of the programme holding up a photo of the applicant, then by footage of a big and a small hippopotamus strolling around, and then by reverting to footage of the host again. During the report, the host narrated the following text: “Vice-Chancellor Herbert Haupt is godfather to a baby hippopotamus at Vienna Zoo. Haupt, the leader of the FPÖ [the Austrian Freedom Party], has already visited his godchild. The bigger animal is in fact the Vice-Chancellor. Both got along very well right from the start. There are many similarities: they are both usually surrounded by a lot of brown rats.” 5. On 13 October 2003 the applicant lodged a claim for compensation for non-pecuniary damage under section 6 of the Media Act (Mediengesetz), in conjunction with Article 115 of the Criminal Code (Strafgesetzbuch), against ATV Privat TV GmbH & Co KG (hereinafter “ATV”), the owner of the television channel ATV+, alleging that he had been insulted by the expression “brown rats”. 6. On 25 November 2003 the Vienna Regional Criminal Court (Straflandesgericht) dismissed his claim. It held that the applicant had not been called a brown rat, but had rather been compared to a nice and pleasant hippopotamus. The suggestion that the applicant surrounded himself with people of an extreme right-wing ideology did not constitute an insult, especially since the report did not allege that it was his wish to be in contact with those people. Moreover, the report did not show any footage of brown rats in the zoo and was clearly satirical; thus, not even people in the applicant’s day-to-day life could have felt insulted. 7. On 12 February 2004 the Court of Appeal allowed an appeal by the applicant, quashing the first-instance decision and referring the case back to the Regional Court. It agreed with the Regional Court’s finding that the applicant had not been insulted by the statement in question, but disagreed with its finding that it was the responsibility of politicians to choose who they surrounded themselves with. Consequently, the statement had amounted to defamation under Article 111 of the Criminal Code. It further held that proceedings should be remitted to the court of first instance in order to give the opposing party the opportunity to give its side of the story. 8. On 17 May 2004, the Regional Criminal Court, after hearing the applicant, ruled in his favour and ordered ATV to pay him compensation of 2,000 euros (EUR) and to retract the statement at issue. It held that ATV had failed to prove that the applicant had close links to people following an extreme right-wing ideology. The court refused to examine the three witnesses requested by ATV because it found that the latter had failed to substantiate the relevance of the requested witnesses to the proceedings. 9. On 10 January 2005 the Court of Appeal dismissed an appeal by ATV and upheld the Regional Court’s judgment of 17 May 2004. It also confirmed that the request for the three witnesses to be cross-examined had been unfounded in that it would not have served to prove the allegation that the applicant did not distance himself enough from people of questionable ideology in his day-to-day life. 10. On 26 June 2005 ATV introduced an application with the Court in which it complained that its conviction and the order for it to pay compensation to the applicant had violated its rights under Article 10 of the Convention (application. no. 25620/05). 11. On 29 May 2008 that application was communicated to the Austrian Government. 12. Following the communication of the application in the present case, the Government informed the Court that the Procurator General’s Office (Generalprokuratur) had requested the Supreme Court (Oberster Gerichtshof) to quash the Regional Court’s judgment of 17 May 2004 and the Court of Appeal’s judgment of 10 January 2005 and to allow the extraordinary reopening of the proceedings against ATV, in accordance with Article 362 § 1 of the Code of Criminal Procedure. 13. In a judgment of 24 June 2009 the Supreme Court granted the Procurator General’s request and remitted the case to the Vienna Regional Court. It found that (i) there were serious doubts regarding the correctness of the judgments in question as to how the contents of the transmission of the television programme at issue had been assessed and (ii) the Court of Appeal had not paid sufficient attention to the case-law of the European Court of Human Rights and the Supreme Court in this regard, particularly in the light of the principles laid down by the Court in the cases of Nikowitz and Verlagsgruppe News GmbH v. Austria (no. 5266/03, 22 February 2007) and Vereinigung Bildender Künstler v. Austria (no. 68354/01, 25 January 2007). Having regard to the findings of the Court of Appeal the Supreme Court considered that in the present case it was irrelevant whether the applicant had or had not identified himself with National Socialist statements, because the criticism contained in the reference to brown rats in his surroundings expressed the reproach that he had not properly distanced himself from such statements. 14. In the Supreme Court’s view it was common knowledge (gerichtsnotorisch) that at the time of the broadcast of the programme several politicians belonging to the Freedom Party had made neo-Nazi statements. The impugned statement from the broadcast therefore expressed a political criticism of Freedom Party party officials around the applicant and of his failure to distance himself from problematic statements made by them. Because the Court of Appeal had misinterpreted the main reproach made by the programme in respect of the applicant, there had been no collection and assessment of any evidence regarding the question of whether or not the applicant had made any statement distancing himself from statements uttered by Freedom Party officials. Thus, the Supreme Court ruled that the lower courts had to collect and assess further evidence in order to clarify this issue. 15. In the reopened proceedings, the Vienna Regional Criminal Court on 16 October 2009 dismissed the applicant’s claim for compensation and also ordered him to bear the costs in respect of the proceedings incurred by the opposing party. As regards the examination of evidence, the Regional Court listed a number of extreme right-wing or neo-Nazi statements made by high-ranking politicians belonging to the Freedom Party. It found further that the applicant had not publicly dissociated himself from these statements. Therefore, the impugned statement from the broadcast did not concern the applicant’s private and personal sphere but rather his professional, public position as a politician. It constituted a political criticism of the attitude and statements of the politicians from the Freedom Party referred to above and the manner in which the applicant had reacted to them. 16. On 10 March 2010 the Vienna Court of Appeal dismissed an appeal by the applicant against that judgment. It confirmed the findings of the Regional Criminal Court. As regards the applicant’s submissions concerning a breach of Article 1 of Protocol no. 1, the Court of Appeal – referring to the consistent case-law of the Supreme Court – found that there would be no breach of Article 1 of Protocol no. 1 if in proceedings following an extraordinary reopening of proceedings compensation already granted were to be annulled. On 18 March 2010 the lawyer of ATV submitted to the applicant’s lawyer a breakdown of its costs in respect of the proceedings and requested their reimbursement. On an unspecified date the applicant reimbursed those costs. 17. On 29 January 2013 the Court struck application no. 25620/05 out of its list of cases. It found that, following the setting-aside of the domestic judgments that ATV had complained of (the reopening of the proceedings in which the Vienna Regional Court had followed the Supreme Court’s line of reasoning and dismissed in its judgment of 16 October 2009 the compensation claim) the matter had been resolved within the meaning of Article 37 § 1 (b) of the Convention. 18. If the publication of an article in a media outlet, viewed objectively, constitutes defamation or an insult within the meaning of Articles 111 and 115 of the Criminal Code respectively, the person defamed or insulted may claim compensation for non-pecuniary damage from the owner of the media outlet in question, under section 6 of the Media Act. 19. Articles 111 and 115 of the Criminal Code, in so far as relevant, read as follows: “1. Any person who accuses another person – as it may be perceived by a third party – of having a contemptible character or attitude, or of behaving contrary to honour or morality, in such a manner as to render him contemptible or otherwise lower him in public esteem, shall be liable to a term of imprisonment not exceeding six months or a fine ... 2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to render the defamation accessible to a broad section of the public, shall be liable to a term of imprisonment not exceeding one year or a fine ... 3. A person making [such a] statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be held liable if circumstances are established which give him sufficient reason to assume that the statement was true.” “1. Anyone who, either in public or in the presence of several others, insults, mocks, mistreats or threatens to mistreat a third party, shall be liable to imprisonment not exceeding three months or a fine ... unless he is liable to a more severe penalty under another provision ... ” 20. Section 6 of the Media Act, as in force at the time of the events, read as follows: “(1) Where a medium publishes statements which constitute the actus reus of disparagement, insult, derision or defamation the victim shall have a claim against the owner of the medium ... for damages for the injury suffered ...” (2) No claim shall arise under subsection (1) above where: 21. Article 362 § 1 of the Code of Criminal Procedure, as in force since 2008, reads as follows: “The Supreme Court may, after hearing the Procurator General and without being bound by the conditions set out in Article 353, allow the exceptional reopening of criminal proceedings to the benefit of a person convicted of a crime if an examination of the case file (i) in the course of the preliminary deliberations on a plea of nullity or following a public hearing ...; or (ii) upon a special request made by the Procurator General ... raises considerable doubts as to the correctness of the facts on which a conviction has been based and which cannot be dispelled by further investigations ordered by the Supreme Court itself.” 22. Article 1435 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) reads as follows: “Even things which have been transferred in order to honour a genuine debt may be reclaimed by the donor from the beneficiary if the legal cause for keeping them has ceased to exist.” 23. Article 363a of the Code of Criminal Proceedings, as in force since 1 March 1997, provides under the heading “Renewal of criminal proceedings” (Erneuerung des Strafverfahrens) as follows: “1. If it is established in a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette [Bundesgesetzblatt] no. 210/1958) or of one of its Protocols on account of a decision [Entscheidung] or order [Verfügung] of a criminal court, a retrial shall be held on application in so far as it cannot be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned. 2. All applications for a retrial shall be decided by the Supreme Court. Those who are affected by the determined violation as well as the Procurator General’s Office are entitled to file an application. Article 282 § 1 of the Code of Criminal Proceedings shall be applicable analogously. The application is to be filed at the Supreme Court. If the Procurator General’s Office files an application, those who are affected, if the one affected files an application the Procurator General’s Office, shall be heard. Article 35 § 2 of the Code of Criminal Proceedings shall be applicable analogously.” Further information on this provision may be found in ATV Privatfernseh GmbH v. Austria (dec.) (no. 58842/09, §§ 18-22, 6 October 2015).