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FIRST
SECTION
CASE OF
KOBENTER AND STANDARD VERLAGS GMBH v. AUSTRIA
(Application
no. 60899/00)
JUDGMENT
STRASBOURG
2
November 2006
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision
In the case of Kobenter and Standard Verlags Gmbh v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 12 October 2006
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 60899/00) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Samo Jakob Kobenter (“the first
applicant”), an Austrian national, and the Standard Verlags
GmbH, the owner and publisher of the newspaper Der Standard
which has its head office in Vienna, on 16 August 2000.
- The
applicants were represented by Mr M. Wukoschitz, a lawyer practising
in Vienna. The Austrian Government (“the Government”)
were represented by their Agent, Ambassador F. Trauttmansdorff, Head
of the International Law Department at the Federal Ministry of
Foreign Affairs.
- The
applicants alleged, in particular, that their conviction for
defamation under the Criminal Code and the Media Act, respectively,
had infringed their right to freedom of expression under Article 10
of the Convention.
- The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
- On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
First Section (Rule 52 § 1).
- By
a decision of 1 February 2005, the Court declared the application
admissible.
- Neither
the applicants nor the Government filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant, an Austrian national born in 1960 and living in
Vienna, is an editorial journalist at the newspaper
“Der Standard”. The second applicant is the
owner and publisher of this newspaper.
A. Background
- On
26 October 1997 a group of homosexuals, the “Austrian Forum of
Gays and Lesbians” (“Österreichisches Schwulen-
und Lesbenforum”, ÖSLF) held a demonstration in St.
Pölten, at which the editors of the magazine “Der 13.
– Zeitung der Katholiken für Glaube und Kirche”
(The 13th – Newspaper of Catholics for Faith and Church) took
pictures of participants and published them together with an article
written by K. D. in its issue of 13 November 1997. That article
reflected a negative and hostile position towards homosexual
relationships, suggesting, inter alia, that “they
[homosexuals] ought to be disciplined 'gender-specifically' with
whips and pizzles! (sie gehören
'geschlechtsspezifisch' mit Peitsche und Ochsenziemer
zurechtgewiesen)” and that “nazi-methods should be
applied to them!” It read further that “homosexuals
now crawl like rats out of their holes and are fed 'lovingly' by
politicians and church officials”.
- Subsequently
44 homosexual persons filed a private prosecution (Privatanklage)
against the author K. D. for defamation and a compensation claim
under the Media Act against the owner and publisher of “Der
13.”
- On
13 July 1998 the Linz Regional Court (Landesgericht) found
that certain passages of the article constituted the offence of
insult (Beleidigung) under Section 115 of the Criminal Code
(Strafgesetzbuch) and ordered the owner and publisher of “Der
13.” to pay compensation to four plaintiffs who could be
identified on the pictures. It dismissed the compensation claim as
regards the other plaintiffs and acquitted K. D. The court found that
K. D. had not mentioned any of those plaintiffs' name in his
article and that it could not be established that he had known that
his text would be illustrated by these pictures. On pages 14-15 the
judgment contained an excursus about the nature of homosexuality,
referring to a book called “Lexicon of love (Lexikon der
Liebe)” and the results of an opinion survey on this topic.
It read, inter alia, that “in truth, homosexuality
includes also the lesbian world and, of course, that of animals”,
which was followed by a long passage describing in detail examples of
same-sex practices among different animals.
- Subsequently,
politicians and representatives of the Austrian Forum of Gays and
Lesbians publicly criticised the deciding judge K.-P. B. for the text
and style of this judgment, which was documented in a number of press
releases by the Austrian Press Agency (APA) of 13 July, 1 and
2 September 1998, including an article published by “Der
Standard” with the title “The judge and the dear
cattle (Der Richter und das liebe Vieh)” on
1 September 1998.
- On
2 September 1998 “Der Standard” published two
articles written by the first applicant, whereby the first one
referred to the commentary (Kommentar) at issue on page 32,
which read as follows:
“The punishment chamber
(Strenge Kammer)
Samo Kobenter
It is strange how often the avowed defenders of western
values are inclined to adopt draconian methods when they feel them to
be jeopardised by people with different beliefs, ideas or lifestyles.
If a writer in some odd rag just says he would like to flog gay
people or beat them with bulls' pizzles, that would not normally be
worth mentioning, other than to say that everyone is entitled to live
out his sexual fantasies and obsessions as he pleases, even in words,
as long as the objects or subjects of his desires derive as much
pleasure from it as he does.
Where such matters are being dealt with in court,
however, we might expect at the end of the twentieth century that a
judge of even minimal enlightenment would, at the very least, deliver
a judgment that differs more than somewhat from the traditions of
medieval witch trials. A judge in Linz, K.-P. B., has achieved the
feat of acquitting a defendant who was given the benefit of the doubt
although no doubt was apparent – on the contrary, the judge's
reasoning handed the flogger enough arguments to justify the threats
of punishment he had made so enthusiastically, even if only in
writing. That flies in the face, for a start, of any conception of
law which sees the courtroom as more than just a punishment chamber
for all possible tendencies.
Lending support to a homophobe's venomous hate campaign
with outrageous examples from the animal kingdom casts doubt on the
intellectual and moral integrity of the judge concerned. The fact
that public clarifications are now needed to the effect that
homosexuals are not animals prompts concern about the state of this
country.”
- On
18 September 1998 judge K.-P. B. decided that the above-mentioned
excursus on pages 14-15 be taken out of the judgment of 13 July 1998.
- Subsequently
disciplinary proceedings were opened against judge K.-P. B. On
20 July 1999 the Innsbruck Court of Appeal (Oberlandesgericht),
acting as disciplinary authority, imposed the disciplinary penalty of
a warning. On 20 September 1999 the Supreme Court (Oberster
Gerichtshof) confirmed this decision.
B. Defamation proceeding
- In
the meantime, judge K.-P. B. filed a private prosecution against the
first applicant for defamation (Üble Nachrede) and a
compensation claim under the Media Act against the second applicant
on account of the above article published on 2 September 1998.
- On
29 June 1999 the St. Pölten Regional Court convicted the first
applicant of defamation under Section 111 §§ 1 and 2 of the
Criminal Code and imposed a fine of ATS 13,500 (EUR 981) on him,
suspended on one year's probationary period. It also ordered the
second applicant to pay ATS 50,000 (EUR 3633) in compensation to
judge K.-P. B. under Section 6 of the Media Act and to publish
the judgment. It found in particular that the following statements
were capable of lowering judge K.-P. B. in the public esteem,
constituting the slanderous reproach that he had violated his
obligations under the law and the rules on professional conduct
(Gesetzes- und Standespflichten), required of a judge:
a)
the judgment delivered by the private prosecutor would only differ
somewhat from the traditions of medieval witch trials (das vom
Privatankläger gefällte Urteil würde sich nur
“marginal von den Traditionen mittelalterlicher Hexenprozesse
abheben”) and
b)
that judge K.-P. B. would lend support to a homophobe's venomous hate
campaign with outrageous examples from the animal kingdom (und
dieser würde “die geifernde Hetze eines Homophoben mit
haarsträubenden Belegen aus dem Tierreich stützen”).
- The
Court noted, inter alia, that even if the reasoning of that
judgment contained irrelevant annotations, it could not be inferred
from it that the private prosecutor K.-P. B. believed that different
rights were accorded to homosexuals and heterosexuals, nor that he
had compared homosexuals with animals or that he had put them on an
equal footing.
- On
11 November 1999 the applicants appealed against this judgment,
claiming that the article at issue criticised exclusively the
reasoning of the judgment and not the way in which judge K.-P. B. had
conducted the trial. The statements were permissible value judgments
based on facts and, thus, protected under Article 10 of the
Convention. Arguing that journalistic liberty also allowed a certain
degree of exaggeration and even provocation, and considering the
public discussion caused by the reasoning of the judgment not only in
various media but also among judges, the polemical style of the
article was not disproportionate either.
- On
16 February 2000 the Vienna Court of Appeal dismissed the applicants'
appeal and confirmed the Regional Court's judgment. It found that an
average reader, interested in the subject-matter, would understand by
the first statement that the private prosecutor had grossly violated
fundamental procedural rights, such as the principles of impartiality
and adversarial hearings, which were regularly breached in medieval
witch trials. Thus, this reproach of violating the rules on
professional conduct required of a judge consisted in concrete facts,
which were not proved true by the records of the trial. The second
statement was not only a value judgment, but also insinuated that
judge K.-P. B. had sided with the accused K. D. and had, thus,
been partial. As it was not mentioned in the article that judge K.-P.
B. had impartially conducted the trial and that only certain passages
of the judgment were subject to that criticism, the statements could
not be considered as value judgments based on facts. Rather, in their
context, they were disparaging statements of facts, falling outside
the scope of protection of Article 10 of the Convention. Since
certain passages of the above judgment proved to be legally
superfluous, as affirmed by the private prosecutor's decision of 18
September 1998 taking them out, they could have been subject to
(fair) comment.
II. RELEVANT DOMESTIC LAW
- Section
6 § 1 of the Media Act provides for the strict liability
of the publisher in cases of defamation; the victim can thus claim
damages from him. In this context “defamation” has been
defined in Section 111 of the Criminal Code (Strafgesetzbuch),
as follows:
“1. As it may be perceived
by a third party, anyone who makes an accusation against another of
having a contemptible character or attitude, or of behaving contrary
to honour or morality, and of such a nature as to make him
contemptible or otherwise lower him in public esteem, shall be liable
to 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 make the
defamation accessible to a broad section of the public, shall be
liable to imprisonment not exceeding one year or a fine (...)
3. The person making the 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 liable if circumstances are
established which gave him sufficient reason to assume that the
statement was true."
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained that the Austrian courts' judgments convicting
the first applicant of defamation under Section 111 §§ 1
and 2 of the Criminal Code and imposing a fine of EUR 981 and
ordering the second applicant to pay EUR 3,633 by way of compensation
violated their right to freedom of expression under Article 10,
which, as far as material, reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. (...)
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
A. Whether there was an interference
- The Court notes that it is common ground between the
parties that the first applicant's conviction and the order issued
against the second applicant to pay compensation constituted an
interference with their right to freedom of expression, as guaranteed
by Article 10 § 1
of the Convention.
B. Whether the interference was justified
- An
interference contravenes Article 10 of the Convention unless it is
“prescribed by law”, pursues one or more of the
legitimate aims referred to in paragraph 2 and is “necessary in
a democratic society” for achieving such an aim or aims.
1. “Prescribed by law”
- The
Court considers, and this was acknowledged by the parties, that the
interference was prescribed by law, namely by Article 111 of the
Criminal Code and Section 6 of the Media Act read in conjunction with
that provision respectively.
2. Legitimate aim
- The
Court further finds, and this was likewise not disputed between the
parties, that the interference served a legitimate aim, namely “the
protection of the reputation or rights of others” within the
meaning of Article 10 § 2
of the Convention.
3. “Necessary in
a democratic society”
(a) Arguments before the Court
- The
Government submitted that the measures were necessary in a democratic
society and the Austrian courts gave sufficient and convincing
reasons for their judgments. In particular they found that the
impugned statements constituted untrue statements of fact, namely the
reproach against the judge that he had failed to take into account
fundamental procedural guarantees and that he had violated the
principles of impartiality and an adversarial hearing. The
allegations were not admissible value judgments either as they lacked
a sufficient factual basis. In particular, it did not emanate from
the article at issue that the judge had conducted the proceedings in
an objective manner, relying on the existing facts, and that only one
passage of the reasoning was intended to be criticised. Moreover, the
details of the impugned judgment and the circumstances underlying the
previous criminal proceedings were certainly not known to the general
public to an extent required for such serious accusations against a
judge, including an attack on the reputation of the judiciary. When
balancing the parties' interests, namely the applicants' interest in
disseminating information and ideas on matters of public interest on
the one hand, and the interest of the judge concerned in protecting
his reputation and the standing of the judiciary in general on the
other, the courts found in favour of the latter interests.
Furthermore, in the light of the case as a whole and the economic
situation of the applicants, the sanctions imposed were also
proportionate.
- The
applicants contested that the Austrian courts' judgments had been
necessary in a democratic society. They contended that the impugned
statements constituted value judgments which had a factual basis,
namely the reasoning of the judgment concerned. This factual basis
was also known to the readers because it had been published on
several occasions, including by “Der Standard” in
its issue of 1 September and another article on 2 September 1998
which explicitly referred to the commentary at issue on page 32.
Further, the domestic courts as well as the Government had
disregarded that the article was earmarked as a “commentary”,
thus, indicating to any knowledgeable reader that it contained a
critical assessment by the author. In the applicants' view, the
courts had also ignored that the impugned statement only concerned
the judgment of the private prosecutor and not the way in which he
had conducted the proceedings. Therefore the applicants did not share
the argument of the Government and the findings of the domestic
courts that they had reproached the judge with not having observed
the principle of an adversarial hearing or with having been partial.
Moreover, they considered the Government's view to be inconclusive
and overstepping the requirements of this Court's case-law in respect
of Article 10 of the Convention that their critical remarks should
have contained the fact that the proceedings had been (otherwise)
conducted in a fair manner. In conclusion, the applicants'
convictions were disproportionate and not necessary in a democratic
society.
b) The Court's assessment
29. The
Court reiterates the principles established by its case–law
under Article 10 of the Convention:
(i) The
press plays an essential role in a democratic society. Although it
must not overstep certain bounds, in particular in respect of the
reputation and rights of others, its duty is nevertheless to impart –
in a manner consistent with its obligations and responsibilities –
information and ideas on all matters of public interest (see De
Haes and Gijsels v. Belgium, judgment of 24 February 1997,
Reports 1997-I, pp. 233-234, § 37). Not only does it have
the task of imparting such information and ideas, the public also has
a right to receive them. Were it otherwise, the press would be unable
to play its vital role of “public watchdog” (see
Thorgeir Thorgeirson v. Iceland, judgment of 25 June
1992, Series A no. 239, p. 28, § 63; Bladet
Tromsø and Stensaas v. Norway [GC], no. 21980/93,
§ 62, ECHR 1999-III; and Unabhängige
Initiative Informationsvielfalt v. Austria, no. 28525/95,
§ 46, 26 February 2002).
(ii) This
undoubtedly includes questions concerning the functioning of the
system of justice, an institution that is essential for any
democratic society. The press is one of the means by which
politicians and public opinion can verify that judges are discharging
their heavy responsibilities in a manner that is in conformity with
the aim which is the basis of the task entrusted to them. Regard
must, however, be had to the special role of the judiciary in
society. As the guarantor of justice, a fundamental value in a
law-governed State, it must enjoy public confidence if it is to be
successful in carrying out its duties. It may therefore prove
necessary to protect such confidence against destructive attacks that
are essentially unfounded, especially in view of the fact that judges
who have been criticised are subject to a duty of discretion that
precludes them from replying (see Prager and Oberschlick
v. Austria, judgment of 26 April 1995, Series A
no. 313, p. 17, § 34).
(iii) Freedom
of expression constitutes one of the essential foundations of a
democratic society and one of the basic conditions for its progress
and each individual's self-fulfilment. Subject to paragraph 2 of
Article 10, it is applicable not only to “information” or
“ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb. As set forth in Article 10 § 2, this
freedom is subject to exceptions, which must, however, be construed
strictly and the need for any restrictions must be established
convincingly (see Nilsen and Johnsen v. Norway [GC],
no. 23118/93, § 43, ECHR 1999-VIII).
(iv) There
is little scope under Article 10 § 2 of the Convention for
restrictions on political speech or on debate on questions of public
interest (see Sürek v. Turkey (No. 1) [GC], no. 26682/95,
§ 61, ECHR-IV).
(v) The
notion of necessity implies a “pressing social need”. The
Contracting States enjoy a margin of appreciation in this respect,
but this goes hand in hand with a European supervision which is more
or less extensive depending on the circumstances. In reviewing under
Article 10 the decisions taken by the national authorities
pursuant to their margin of appreciation, the Convention organs must
determine, in the light of the case as a whole, whether the
interference at issue was “proportionate” to the
legitimate aim pursued and whether the reasons adduced by them to
justify the interference are “relevant and sufficient”
(see Lingens, cited above, p. 25, §§ 39-40;
and The Sunday Times v. the United Kingdom (no. 2), judgment
of 26 November 1991, Series A no. 217, p. 28-29,
§§ 50).
(vi) The
nature and severity of the penalty imposed are also factors to be
taken into account when assessing the proportionality of the
interference (see, for example, Ceylan v. Turkey [GC],
no. 23556/94, § 37, ECHR 1999-IV; Tammer v.
Estonia, no. 41205/98, § 69, ECHR 2001-I; and
Perna v. Italy [GC], no. 48898/99, § 39,
25 July 2001).
- Turning
to the circumstances of the present case and having regard to the
above principles, the Court considers, unlike the Government and the
domestic courts, that the commentary at issue, in particular the
impugned passages constituted value judgments, which had a sufficient
factual basis for the purposes of Article 10. Firstly, the reasoning
of the judgment concerned had been harshly criticised in the public
media, including in “Der Standard” in two
other articles, one published on a different page the same day as the
commentary at issue and the other already the day before. Secondly,
the statement “the judgment delivered by the private prosecutor
would only differ somewhat from the traditions of medieval witch
trials” made sufficiently clear that the criticism concerned
the judgment and not, as the domestic courts and the Government
found, alleged deficiencies by the judge in conducting the
proceedings.
- The
Court finds that the issue concerned a matter of public interest at
the time. However, unlike the Government and the domestic courts,
which balanced the interests of the involved parties in favour of the
judge's interest in protecting his reputation and the standing of the
judiciary in general, the Court considers that the applicants'
interest in disseminating information on the subject-matter,
admittedly formulated in a provocative and exaggerated tone,
outweighed the interests of the former in the circumstances of the
case. The facts that those passages of the judgment concerned had
later on been taken out by the judge himself, and secondly, that a
warning had been imposed on that judge in subsequent disciplinary
proceedings prove that that judge had not discharged the heavy
responsibilities in a manner that was in conformity with the aims
entrusted to judges (see e contrario, Prager and
Oberschlick, cited above). The Court therefore finds that the
applicants complied with their duties, responsibilities and diligence
as a public “watch-dog” and that the criticism did not
amount to any unjustified destructive attacks against the judge
concerned or the judiciary as such (ibidem).
- Therefore
the Court considers that the standards applied by the Austrian courts
were not compatible with the principles embodied in Article 10
and that the domestic courts did not adduce “relevant and
sufficient” reasons to justify the interference at issue,
namely the first applicant's conviction for defamation and the
imposition of a fine on the applicant company for having made the
critical statements in question. Having in mind that there is little
scope under Article 10 § 2 of the Convention for restrictions on
debate on questions of public interest, the Court finds that the
domestic courts overstepped the narrow margin of appreciation
accorded to Member States, and that the interference was
disproportionate to the aim pursued and was thus not “necessary
in a democratic society”.
- In conclusion, the Court finds that the Austrian
courts, when convicting the first applicant and ordering the second
applicant to pay compensation, overstepped their margin of
appreciation, and that these measures were not necessary in a
democratic society. There has, therefore, been a violation of
Article 10 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- As
pecuniary damage the second applicant sought EUR 3,633.64,
corresponding to costs awarded to judge K.-P. B. by the Austrian
courts. It further requested reimbursement of the 50,000 Austrian
schillings (EUR 4,890.52) paid to K.-P. B. by virtue of the
court sentence, and of EUR 1,800.80 for the publication of the
judgment in its newspaper. It argued that this sum corresponds to its
fees for publications in its newspaper at the relevant time and
joined a copy of its price-list. The first applicant sought EUR 7,000
in respect of non-pecuniary damage for loss of reputation resulting
from the judgment against him and, as pecuniary damage, EUR 152.61
for court fees he had to pay in respect of the domestic proceedings.
- As
regards the claims for pecuniary damage, the Government argued that
the second applicant's claim for the costs of the publication of the
judgment was not sufficiently substantiated, as, in their view,
reference to the price list for advertisement space in their
newspaper was not conclusive. In respect of non-pecuniary damage, the
Government submitted that the first applicant had failed to
substantiate his claim, as a mere reference to awards in other cases
was not sufficient.
- Having
regard to the direct link between the second applicants' claim
concerning reimbursement of K.-P. B.'s costs in the domestic
proceedings, the compensation it had to pay to him and the violation
of Article 10 found by the Court, the second applicant is
entitled to recover the full amount. The same applies for the cost
order issued against the first applicant in the amount of EUR 152.61.
As regards the second applicant's claim for reimbursement of the
costs of the publication of the judgment in its newspaper, the Court
observes that the publication has actually taken place, that it was
the consequence of the judgment in respect of which the Court has
found a violation of Article 10 and that the second applicant has
shown sufficiently how it calculated the amount which, in itself,
does not appear unreasonable. Therefore, the Court also awards this
claim in full. Accordingly, under the head of pecuniary damages it
awards EUR 152.61 to the first applicant and EUR 10,324.96 to the
second applicant.
- As
regards the first applicant's claim for non-pecuniary damage, the
Court considers that his conviction entered in the criminal record
entailed adverse effects and awards him, on an equitable basis, EUR
5,000 under the head of non-pecuniary damage (see Scharsach and
News Verlags-gesellschaft v. Austria, no. 39394/98, § 51,
ECHR 2003 XI; and, mutatis mutandis, Nikula v.
Finland, no. 31611/96, § 65, ECHR 2002-II).
B. Costs and expenses
- The
second applicant sought reimbursement of EUR 3,971.24, exclusive
of turnover tax, for costs and expenses incurred in the domestic
proceedings. It further requested EUR 4,956, exclusive of
turnover tax, for costs and expenses incurred in the Strasbourg
proceedings.
- The
Government submitted that the costs claimed were excessive. As
regards the costs claim for the domestic proceedings, they submitted
that one request for adjournment of the proceedings, made by the
second applicant for which EUR 30.81 were claimed, cannot be
considered a step necessary in proceedings attempting to prevent the
violation of the Convention found and should therefore not be granted
by the Court. As regards the Convention proceedings, the Government
argued that the basis for calculation was too high and that when the
applicants submitted their claims under Article 41, they merely
re-submitted a compilation of claims they had already submitted
earlier. Claiming EUR 991.30 for that step only was excessive. In
their view an amount of EUR 2,173.95 for costs incurred in the
Convention proceedings was justified.
- The
Court finds the claim for costs incurred in the domestic proceedings
reasonable and awards the full amount of EUR 3,971.24. As regards the
Convention proceedings the Court, making an assessment on an overall
basis and having regard to awards in comparable cases, awards
4,000 EUR under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 10 of the Convention;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts:
(i) EUR
152.61 (one hundred fifty two euros and sixty one cents) to the first
applicant and EUR 10,324.96 (ten thousand three hundred twenty four
euros and ninety six cents) to the second applicant in respect of
pecuniary damage;
(ii) EUR
5,000 (five thousand euros) to the first applicant in respect of
non-pecuniary damage;
(iii) EUR
7,971.24 (seven thousand nine hundred seventy one euros and twenty
four cents) to the second applicant in respect of costs and expenses;
(iv) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 2 November 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
