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FIRST
SECTION
CASE OF ARBEITER v. AUSTRIA
(Application
no. 3138/04)
JUDGMENT
STRASBOURG
25
January 2007
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 Arbeiter 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 N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 4 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3138/04) 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 an Austrian national, Mr Gebhard Arbeiter (“the
applicant”), on 14 January 2004.
- The
applicant was represented by Mr Ulrich Polley, a lawyer practising in
Klagenfurt. The Austrian Government (“the Government”)
were represented by their Agent, Mr Ferdinand Trauttmansdorff, Head
of the International Law Department at the Federal Ministry of
Foreign Affairs.
- The
applicant alleged that his right to freedom of expression under
Article 10 of the Convention had been violated.
- On
29 November 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944 and lives in Klagenfurt.
- At
the time of the events he was the chairman of the Workers' Committee
(Zentralbetriebsobmann) of the Carinthian regional hospitals
(Landeskrankenanstalten). He was also a member of the
Carinthian Regional Parliament (Landtag) and speaker on health
matters (Gesundheitssprecher) of the Carinthian regional
branch of the Social Democratic Party (SPÖ).
- In
the context of a political debate concerning the reform of the
regional health system, the Carinthian Regional Government
(Landesregierung), in March 2001, commissioned Köck,
Ebner and Partners and thereby their managerial director Mr Köck,
to draft an expert opinion on the future development of the
Carinthian regional hospitals. They were asked in particular to
submit proposals as to the possible reduction of costs in this field.
While the regional branch of the Austrian People's Party (ÖVP)
and the Austrian Freedom Party (FPÖ) voted in favour of this
decision, the SPÖ contested the appointment of Mr Köck.
- Before
and after this event, the debate on a regional health reform received
extensive media coverage in the regional newspapers. In interviews
Mr Köck stated that in various medical fields many
unnecessary surgical operations were carried out. Furthermore, the
probability of dying in hospital as a result of medical negligence
was comparatively high. He advocated cutting down superfluous
services and closing smaller hospitals and hospital departments.
These proposals were heavily criticised by the federal health speaker
of the SPÖ.
- At
the end of May 2001 Mr Köck co-founded the “hospital
investment joint-stock company” (Krankenanstalten
Beteiligungs-aktiengesellschaft - “KABAG”)
whose purpose was to take over and run hospitals. In interviews with
regional newspapers Mr Köck contended that his company would
focus on hospitals run by municipalities, private establishments and
hospitals of religious orders. He wished to show through this company
that hospitals could be administrated from a patient-orientated
perspective, run efficiently and be of top quality. Above all the
potential of employees could be better used in a private company. He
had worked for public hospitals long enough to know how much
potential was not being used. He was not yet speculating about the
takeover of a hospital in Carinthia as the subject of takeovers had
not yet come up there.
-
The federal speaker of the SPÖ objected that the founding of
this company was incompatible with Mr Köck's function as expert
for the Region of Carinthia because the latter function enabled Mr
Köck to have access to all relevant data on regional hospitals.
This was contested by Mr Köck and the chairman of the FPÖ
parliamentary party.
- In
its issue of 8 June 2001 the Kärnter Tageszeitung, a
regional newspaper, published an article in which it cited the
applicant saying:
“It is outrageous how the alleged hospital guru
Köck wishes, on the one hand, to erase whole departments and
hospitals from Carinthia, and, on the other hand, to use his newly
founded hospital investment company to take over these hospitals in
our Region”...
...“the Regional Governor Jörg Haider has
already once erred enormously by [employing] an alleged technical
'wonder-wizard' who then ended up before the Public Prosecutor's
Office”... Arbeiter warns
of the “incomprehensible enthusiasm of the Freedom
Party for an alleged health guru and 'closing-down preacher' “
”... “K smashes our good health system in
order to take over hospitals with his company”.
- On
an application by Mr Köck and Köck, Ebner and Partners, the
Klagenfurt Regional Court (Landesgericht) issued an injunction
on 30 September 2002 prohibiting the applicant from repeating
and ordering him to retract the statements that Mr Köck would
smash the Carinthian health system and intended to close whole
departments and hospitals in order to take them over with his
company. Furthermore, he was ordered to abstain from any allegations
comparing or associating Mr Köck to an “alleged
wonder-wizard” who had ended up before the Public Prosecutor's
Office. It noted that the impugned statements were statements of fact
which gave the impression that Mr Köck was totally unqualified
and, furthermore, referred to his alleged criminal activity. In
particular, the reproach that Mr Köck wished to take over
hospitals after having smashed the health system in Carinthia
suggested that he would enrich himself. However, Mr Köck
had not taken any steps which would have justified the applicant's
reproaches. In particular, Mr Köck had not taken any concrete
measures to close hospitals, smash the health system or to take over
hospitals with his company. The applicant's statements were therefore
untrue and defamatory statements of facts in respect of which a civil
offence under Article 1330 § 2 of the Civil Code
was made out. Mr Köck's situation was not comparable to the
situation of a politician or a private person who had entered the
public scene and therefore had to display a greater degree of
tolerance.
- On
2 April 2003 the Graz Court of Appeal (Oberlandesgericht)
dismissed an appeal by the applicant. It noted that the fact that Mr
Köck had proposed to close some hospitals and had founded a
private investment company for hospitals did not constitute a
sufficient basis for establishing that he would misuse his mandate to
push private business dealings. The applicant had, furthermore,
stressed the reproach of criminal conduct by drawing a comparison
with a “wonder-wizard who had ended up before the Public
Prosecutor's Office”. The court did not agree with the
applicant's argument that the impugned statements had to be
understood as permissible value judgments.
- On
10 July 2003 the Supreme Court (Oberster Gerichtshof) rejected
an extraordinary appeal by the applicant. This decision was served on
the applicant's counsel on 12 August 2003.
II. Relevant domestic
law
- Article 1330 of
the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch)
provides:
"(1) Anybody who, due to defamation, has suffered
real damage or loss of profit may claim compensation.
(2) The same shall apply if anyone disseminates facts
which jeopardise another's reputation, gains or livelihood, the
untruth of which was known or should have been known to him. In this
case there is also a right to claim a retraction and the publication
thereof. ...
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that the Austrian courts' decisions had violated
his right to freedom of expression as provided for in Article 10 of
the Convention, which, as far as relevant, 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.”
- The Government contested that argument.
A. Admissibility
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
applicant contested the submission that there had been relevant and
sufficient grounds to justify the impugned interference with his
rights under Article 10 of the Convention. Mr Köck had entered
the public arena as he had been commissioned as an expert by the
regional government and had, furthermore, repeatedly expressed his
views on this subject in public. He had done so in an exceptionally
provocative manner and the applicant had merely responded to those
views. Given the nature of his commission, Mr Köck should have
been required to exercise particular restraint until the study was
completed in order to avoid anticipating and forestalling its
conclusions. Any expert who stated the direction his findings would
take before he had concluded his report left himself open to a high
degree of legitimate criticism. The applicant's statements had been
value judgments with a sufficient factual basis, namely Mr Köck's
provocative public comments and his general conduct. The matter at
issue was of the greatest public interest and the applicant had
relied upon information which was already within the public domain.
The applicant had also explained his principal reasons for concern,
namely Mr Köck's involvement in the creation of a private
hospital management company with an abbreviated name (KABAG)
confusingly similar to that of the holding company which operated
Carinthia's regional hospitals
(Landeskrankenanstalten–Betriebsgesellschaft, KABEG).
The statement that Mr Köck intended to smash the Carinthian
health system had to be seen in the whole context of all the
statements. Obviously every reader would understand that Mr Köck
was not accused of smashing the system himself but of recommending
measures to that effect. The mere reference to another expert who had
failed and had been pursued by the criminal justice could not be
understood as an implied accusation of Mr Köck. The applicant
contended finally that the courts' decisions ordering him not only to
refrain from further similar statements, but also to retract his
comments had not been proportionate either.
- The
Government argued that the courts' decisions had been justified under
Article 10 § 2 of the Convention. By qualifying the applicant's
statements as statements of fact, the Austrian courts had not
transgressed their margin of appreciation. An essential element for
this qualification was the fact that the impugned statements had been
given without any further explanation and without giving the reasons
for the applicant's conclusions. The Austrian courts had legitimately
interpreted the statements in the sense normally attributable to
similar reproaches. Even assuming that Mr Köck was to be
considered as a person of public life, the impugned statements had
transgressed the limit of acceptable criticism. The Austrian courts'
orders had also been proportionate. In that regard the Government
argued that the applicant had neither been convicted nor made to pay
compensation. He had merely been ordered to refrain from making
clearly defined incorrect statements of fact and by no means impeded
from voicing his opinion in other less derogatory and defamatory
words. Even if the Court, contrary to the Government's view,
considered the statements to be value judgments, the interference
appeared proportionate, in particular in view of the implied
accusation that Mr Köck had acted in a manner similar to another
expert who had committed criminal acts.
- The
Court notes that it is undisputed that the contested judgments
prohibiting the applicant from repeating and ordering him to retract
and to abstain from certain statements regarding Mr Köck
constituted an interference with the applicant's right to freedom of
expression. It is not in dispute either that the interference was
“prescribed by law” and served a legitimate aim, namely
the protection of the rights and reputation of others. The parties'
argument concentrated on the necessity of the interference. As
regards the general principles relating to the freedom of the
expression and the question of assessing the necessity of an
interference with that freedom, the Court refers to the summary of
its established case-law in the case of Nilsen and Johnsen v. Norway
([GC], no. 23118/93, § 43, ECHR 1999-VIII).
- In
accordance with its case-law, the Court will examine whether the
reasons adduced by the domestic courts in the present case were
“relevant and sufficient” and whether the interference
was proportionate to the legitimate aim pursued. In so doing the
Court will have regard to the domestic courts' margin of
appreciation.
- The
applicant had stated that Mr Köck, a government-appointed expert
on the reform of regional hospitals, “wishes to erase whole
departments and hospitals from Carinthia” and “smashes
our good health system” in order to “take over
these hospitals using his newly founded hospital investment
company”. The applicant had further mentioned the previous
employment, by Mr Haider, of another “alleged technical
wonder-wizard” who had ended up before the Public
Prosecutor's Office. The Austrian courts granted the requested
injunction as they found that these were incorrect statements of fact
which gave the impression that Mr Köck was totally
unqualified and, furthermore, referred to his alleged criminal
activity.
- The
Court cannot agree with these findings. It notes that the applicant
stated his indignation at Mr Köck's alleged intentions and
thereby expressed his own opinion rather than an actual statement of
fact. The Court further notes that there existed at the material time
certain objective factors supporting the applicant's allegations
concerning Mr Köck's wishes “to erase” health
institutions from the public landscape and “to take them
over” himself. Mr Köck had in fact advocated cutting
down superfluous services and closing smaller hospitals and hospital
departments. He had also recently founded a company whose purpose was
to take over and run hospitals. While asserting that he was not
focusing on Carinthian hospitals yet, he had not excluded this
possibility in future. The applicant's assertion that this amounted
to the “smash[ing of] our public health system”
has to be considered as his - certainly exaggerated and polemical -
value judgment on the above events. The subsequent reference made by
the applicant to a previous expert employed by Mr Haider who had been
the subject of criminal investigations undoubtedly constituted a
statement of fact. However, unlike the domestic courts, the Court
does not find that this statement actually implied any reproach of
criminal conduct against Mr Köck. From the context in which
this statement was made, it appears that this incident was rather
cited as an example of the FPÖ party's ways of choosing and
supporting experts.
- In
this connection the Court further points out that the applicant's
statements have to be seen in the broader context of an ongoing
political and general debate on public health matters, concerning the
future development of regional hospitals. Mr Köck had been
appointed by the Regional Government, against the will of the SPÖ
party, as an expert in this matter. He had repeatedly discussed this
issue before the press and had thus entered the public arena. As a
consequence, he had to bear a higher degree of tolerance (see,
mutatis mutandis, Nilsen and Johnsen v. Norway, cited
above, §52). The Court further notes that, apart from calling
for cut backs, Mr Köck had also expressed harsh criticism
of the actual functioning of the regional hospitals, stating that
many unnecessary surgical operations were carried out and that the
mortality rate due to medical negligence was relatively high. By
doing so, Mr Köck certainly had to expect indignation and
protest by the applicant, who spoke in his capacity as chairman of
the Workers' Committee of the Carinthian regional hospitals.
- It
is true that the applicant, on a slim factual basis, published harsh
criticism in strong, polemical language. However, having regard, on
the one hand, to Mr Köck's active involvement in a public
discussion and the critical proposals made by him, and, on the other
hand, the applicant's position as spokesman of the part of the
population primarily concerned by these statements, the Court
considers that a certain degree of exaggeration had to be tolerated
in the applicant's response and reaction. In this regard the Court
further reiterates that Article 10 also protects information or ideas
that offend, shock or disturb (see Handyside v. the United
Kingdom judgment of 7 December 1976, Series A no. 24,
p. 23, § 49). It follows that the applicant's statements have to
be considered as permissible contributions to a debate of general and
political interest.
- In
sum, the Court finds that the Austrian courts overstepped the margin
of appreciation afforded to Member States and, in this respect, the
measures at issue were disproportionate to the aim pursued. The Court
cannot find that the limited nature of the interference, namely the
order to refrain from repeating and to retract the impugned
statements, is decisive; what is of greater importance is that the
domestic courts restricted the applicant's freedom of expression
while relying on reasons which cannot be regarded as sufficient and
relevant. They therefore went beyond what would have amounted to a
“necessary” restriction on the applicant's freedom of
expression.
- There
has accordingly 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
- The
applicant claimed 20,000 euros (EUR). He did not specify whether this
claim was made in respect of pecuniary or non-pecuniary damage. He
further claimed EUR 7,084.11 including value added tax (VAT) for
pecuniary damage in respect of reimbursement of the plaintiffs' costs
incurred in the domestic proceedings. He also sought interest at a
rate of 4% per annum to be added to the above amounts and backdated
to 12 August 2003, when the Supreme Court's final judgment was
served on him.
- The
Government contested the applicant's unspecified claim of EUR 20,000.
They did not comment on the applicant's further claims.
- The Court notes that, in so far as the applicant
claims EUR 20,000, no award can be made as the applicant has not
specified his claim. On the other hand, having regard to the
direct link between the applicant's claim concerning reimbursement of
the costs of the domestic proceedings which were to be paid to the
plaintiffs and the violation of Article
10 found by the Court, the applicant is entitled to recover
the full amount of EUR 7,084.11. The Court further agrees with
the applicant that some pecuniary loss must have been occasioned by
reason of the period that elapsed from the time when these costs were
incurred until this Court's award. Deciding on an equitable basis and
having regard to the statutory 4% interest rate in Austria,
it awards the applicant EUR 850 in respect of this claim
(see, mutatis mutandis, Albert-Engelmann-Gesellschaft mbH
v. Austria, no. 46389/99, § 39, 19 January 2006,
with further references). Therefore, a total of EUR 7,934.11
is awarded in respect of pecuniary damage. This amount includes
VAT.
B. Costs and expenses
- The
applicant claimed EUR 7,952.58 including VAT for the costs and
expenses incurred before the domestic courts and EUR 7,411.61
including VAT for those incurred before the Court. He also sought
interest backdated to 12 August 2003, when the Supreme Court's final
judgment was served on him, at a rate of 4% per annum to be added to
the claim concerning his costs in the domestic proceedings.
- The
Government contested the claim concerning the costs of the Convention
proceedings, which they considered excessive.
- As
regards the costs of the domestic proceedings, the Court finds that
they were necessarily incurred and reasonable as to quantum. It
therefore awards them in full, namely EUR 7,952.58. The Court further
agrees with the applicant that some pecuniary loss must have been
occasioned by reason of the period that elapsed from the time when
these costs were incurred until this Court's award. Deciding on an
equitable basis and having regard to the statutory interest rate in
Austria, it awards the
applicant EUR 950 with respect to this claim. The costs of the
Convention proceedings were also necessarily incurred. Having regard
to the sums awarded in comparable cases and making an assessment on
an equitable basis, the Court awards EUR 3,500.
- In
sum, a total of EUR 12,402.58 is awarded under the head of costs and
expenses. This amount includes VAT.
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
- Declares the application admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 7,934.11 (seven thousand nine hundred thirty
four euros and eleven cents) in respect of pecuniary damage and EUR
12,402.58 (twelve thousand four hundred two euros and fifty eight
cents) in respect of costs and expenses;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 25 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
