GRUNER KLUB IM RATHAUS v. AUSTRIA
Inadmissible
Christos Rozakis
The applicant, Grüner Klub im Rathaus, is the fraction of an Austrian party to the Vienna Regional Parliament (Landtag). It was represented before the Court by Mrs M. Windhager, a lawyer practising in Vienna. The respondent Government were represented by Mr F. Trauttmansdorff, Head of the International law Department at the Federal Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In the autumn of 2000 a 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 opened against several persons. 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. This judgment was later, in February 2004, quashed upon appeal and Mr Kleindienst and Mr Kreiβl were acquitted. In the meantime, after the first instance judgment, the applicant issued, on 17 September 2002, a press release which read as follows: “Member of the Green Party to the police information scandal:”[A] gift and [a] shame.” Maria Vassilakou: Austria desperately needs a new Minister of Justice Vienna (Member of the Green Party): “A shame. This judgment quite clearly bears the hallmark of Kreiβl’s fellow party member, the Minister of Justice, Böhmdorfer” so [says] the Green Member of the City Council Maria Vassilakou in view of the low [sentences of the] judgments against Kleindienst and Kreiβl. “If one considers the genesis of this incredible police information scandal, one has to wonder very much that after a dozen of suspects, month-long investigations and a long trial only this [judgment] remains.” Vassilakou concludes: “An embarrassing judgment which lets down the persons who have been spied upon and opens the floodgates for further abuse of personal data by ‘political engaged’ or simply ‘currupt’ executive officers” [Grüne zu Spitzelaffäre:”Geschenk und Schande” Maria Vassilakou: Österreich braucht dringend neuen Justizminister. Wien (Grüne) “Eine Schande. Dieses Urteil trägt ganz klar die Handschrift von Kreiβels Parteifreund Justizminister Böhmdorfer”, so die Grüne Stadträtin Maria Vassilakou in Anbetracht der geringen Urteile gegen Kreiβl und Kleindienst. “Betrachtet man die Genesis dieser unglaublichen Spitzelaffäre wundert man sich schon sehr, wenn von mehreren Dutzend Verdächtigen, monatelangen Untersuchungen und ein langwieriger Prozess lediglich dies übrig bleibt.” Vassilakou abschlieβend: “Ein peinliches Urteil, das die bespitzelten Personen im Regen stehen lässt und Tür und Tor für weiteren Missbrauch von vertraulichen Personendaten durch ‘politisch engagierte’ oder schlicht ‘käufliche’ Exekutivbeamten öffnet”] Mr Böhmdorfer subsequently brought proceedings under section 6 of the Media Act (Mediengesetz) with the Vienna Regional Court (Landesgericht für Strafsachen). On 28 November 2002 the Regional Court, having held on oral hearing, found that the statement “A shame. This judgment quite clearly bears the hallmark of Kreiβl’s fellow party member, the Minister of Justice, Böhmdorfer” amounted to defamation within the meaning of Articles 111 and 297 of the Criminal Code (Strafgesetzbuch). It ordered the applicant under section 6 of the Media Act to pay compensation to Mr Böhmdorfer in the amount of 3,000 euros (EUR). It further ordered it to publish the judgment. The court noted that the impugned statement read in its context suggested that Mr Böhmdorfer had abused his authority as Minister of Justice to influence the deciding court. However, the applicant had failed to prove that this had indeed been so. The applicant appealed and submitted in particular that the impugned statement amounted to a value judgment on a political issue and it was therefore, in any event, not possible to prove its veracity. Furthermore, there had been some factual basis for the statement. The applicant referred in this regard to the general political background of the “police information scandal”, the conduct of the criminal investigations and to the fact that Mr Böhmdorfer at the beginning of the investigations had refused all reproaches of illegal data consulting. The applicant finally contended that the court should have interpreted the statement in a broader sense, meaning that the judgment against Mr Kleindienst and Mr Kreiβl corresponded to Mr Böhmdorfer’s political mindset and style. On 8 September 2003 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. It found that the impugned statement, read in its context, did not allow any other conclusion to be drawn than that Mr Böhmdorfer had unlawfully influenced the deciding judge in the criminal proceedings. However, the evidence adduced by the applicant, namely general press releases relating to the conduct of the criminal investigations in the police information case, Mr Böhmdorfer’s statements in the context of these investigations and the fact that Mr Böhmdorfer had himself been criticised for allegedly having used illegal obtained material, did not give any indication for the veracity of this allegation. The applicant’s right to freedom under expression under Article 10 of the Convention did not protect false statements of facts. Moreover, the applicant had not even given Mr Böhmdorfer the opportunity to comment. This judgment was served on the applicant’s counsel on 22 October 2003.