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FIRST
SECTION
CASE OF EUROPEAN UNIVERSITY PRESS GMBH v. AUSTRIA
(Application
no. 36942/05)
JUDGMENT
STRASBOURG
24 June
2010
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 European University
Press GmbH v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and André Wampach,
Deputy
Section Registrar,
Having
deliberated in private on 3 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36942/05) 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 European University Press GmbH (“the
applicant”), on 29 September 2005.
- The
applicant was represented by Mr E. Morent, a lawyer practising in
Vienna. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador H.
Tichy, Head of the International Law Department at the Federal
Ministry for Foreign Affairs.
- The
applicant company complained that the non-communication of a request
for a correction of a cost order violated the principle of equality
of arms.
- On
28 September 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant is a limited liability company with its seat in Vienna.
- In
2002 the applicant company published a book about K., Federal
President of Austria at that time, and his family. The book included
a passage suggesting that K. had forced his wife to undergo an
abortion in the Netherlands. It was distributed to bookshops on 9
April 2002.
- On
22 April 2002 the Vienna Commercial Court (Handelsgericht)
issued a preliminary injunction (einstweilige Verfügung)
against the applicant company prohibiting it from disseminating
statements concerning the alleged abortion. The preliminary
injunction became enforceable on 24 April 2002.
- Since
the applicant company allegedly did not comply, K. and his wife
requested the enforcement of the injunction (Unterlassungsexekution).
This request was granted by the Innere Stadt Vienna District Court
(Bezirksgericht) on 2 May 2002.
- On
3 May 2002 the District Court, upon request of the opposing party,
imposed for the first time a fine of EUR 10,000 on the applicant
company for failure to comply with the injunction.
- On
the basis of the enforcement order of 2 May 2002 the District Court
subsequently, upon request of the opposing party, imposed fines
between EUR 10,000 and EUR 75,000 on the applicant company 36 times,
since the applicant company was found still not to have complied with
injunction of 22 April 2002. All 37 decisions included costs orders,
which amounted to EUR 741.76 in each case.
- The
applicant company appealed against the enforcement order of 2 May
2002 to the Vienna Regional Court (Landesgericht). It also
opposed the 37 fines which had subsequently been imposed on it. On 12
June 2002 the Vienna Regional Court quashed the decision of 2 May
2002, by which enforcement of the injunction had been granted,
because, on the basis of the preliminary injunction, the applicant
company could not be ordered to dispose of the books which had
already been disseminated before the entry into force of that
injunction. Subsequently, on 26 July 2002, the Regional Court also
quashed all 37 decisions imposing fines and cost orders on the
applicant company.
- On
an unspecified date K. and his wife lodged extraordinary appeals
against the decisions of the Regional Court.
- On
18 December 2002 the Supreme Court (Oberster Gerichtshof) gave
a lengthy judgment on the appeals against the Regional Court’s
decisions of 12 June 2002 and 26 July 2002. Whereas the Supreme Court
agreed with the Regional Court that the injunction ordering the
applicant company not to distribute the book in question could not
relate to copies of the book which had already been distributed to
book shops, it found it established that the applicant company had
also offered the book for mail order on its internet site. In this
respect the applicant company had not complied with the injunction
and enforcement through imposition of fines was in those instances
justified.
- In
the operative part of its judgment the Supreme Court accordingly
granted the appeal in so far as it related to the imposition of fines
in 11 cases, namely as regards decisions no. 4, 6, 8-11, 13, 14
and 18-20.
- As
regards decision no. 4 the Supreme Court reformulated it to cover
only a breach of the injunction for offering the book on the internet
site, reduced the fine to EUR 1,000 but upheld the cost order of EUR
741.76.
- As
regards the remaining 10 decisions the Supreme Court likewise held
the applicant company responsible for a breach of the injunction,
limited to offering the book on the internet site and reduced the
fines to amounts between EUR 1,000 and EUR 2,000. The Supreme Court,
however, was silent on the question of costs in respect of these 10
decisions.
- On
26 January 2005 the estate of K. and K.’s former wife requested
the correction of the Supreme Court’s judgment of 18 December
2002 maintaining that the court had by mistake omitted to restore the
remaining 10 cost orders. The request was not communicated to the
applicant company.
- On
16 February 2005 the Supreme Court corrected its judgment of
18 December 2002, by inserting in the operative part the
following phrase:
“The cost orders, namely para 3 of the first
instance decisions, are restored”
As a
result, the applicant company had to pay an additional EUR 7.467,51
to the opposing parties.
- The
applicant company was informed of the opposing parties’ request
on 27 June 2005, when the decision of the Supreme Court concerning
the correction of its judgment was served on it.
II. RELEVANT DOMESTIC LAW
- Article 419 of the Code of Civil
Procedure reads as follows:
“(1) The court
giving judgment may at any time correct writing and calculation
errors or other apparent errors in the judgment or in its written
version or deviations of the written version from the issued decision
and may add statements omitted contrary to the requirements of
Article 417 § 3.
(2) The court may
decide on the correction without conducting a previous oral hearing.
There is no separate remedy against the decision rejecting the
request for a correction. A correction shall be added to the original
version of the judgement and, if possible, shall be made visible in
the required pertinent copies.
(3) The correction may
also be ordered at a higher instance.”
- Article 521a §
4 of the Code of Civil Procedure, as applicable at the time of the
events, read as follows:
“Where an appeal is lodged in time against a cost
order, the notice of appeal or a copy of the record drawn up in its
place shall be served on the opposing party by the first-instance
court. The opposing party may lodge a counter-appeal with the
first instance court within a fixed time-limit of four weeks
from the date of notification of the appeal as regards points 1-3 and
within a fixed time limit of fourteen days from notification as
regards point 4. Article 464 § 3 and the final sentence of
Article 520 § 1 shall apply mutatis mutandis.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant company complained that the non-communication of a
correction request violated the principle of equality of arms. It
relied on Article 6 of the Convention which, insofar as relevant,
reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
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
1. The parties’ submissions
- The
applicant company submitted that the decisions in the present case
did not concern obvious mistakes. The addition of costs which had not
been included in the original decisions cannot be regarded as
evident. The applicant company relied on the case of Beer v.
Austria in which the Court had found that the failure to serve a
cost appeal in summary appeal proceedings against a cost order
constituted a breach of Article 6 of the Convention (Beer v.
Austria, no. 30428/96, § 20, 6 February 2001). Subsequently
the Austrian legislature changed the relevant provisions of the Code
of Civil Procedure introducing a new Article 521a § 4, according
to which also in cost proceedings the opposing party had to be heard.
Even though the instant proceedings differed in their subject matter
from appeal proceedings against a cost order, the applicant company
should have been given the opportunity to comment on the opposing
parties’ request for correction.
- The
Government submitted that, in accordance with Article 419 of the Code
of Civil Procedure, obvious errors may be corrected if the decision
to be corrected appears not to comply with the court’s true
intention. Under that provision the court may act, without involving
the parties, ex-officio. Nevertheless the court may be
notified about any mistake by a third person. Therefore the
proceedings in the instant case cannot be compared to appeal
proceedings on a cost order in domestic law pursuant to Article 521a
§ 4 of the Austrian Code of Civil Procedure. In the present case
the Supreme Court in its decision merely clarified that not only the
decisions themselves but also the cost orders of the first-instance
decisions were reinstated and gave no decision on the amount of the
costs. Since the decision did not affect the actual content of the
judgment and alter its legal effect, but merely added part of a
phrase which had inadvertently been omitted, there was no need to
hear the parties. Therefore the equality of arms principle had not
been violated.
2. The Court’s assessment
- In
the present case the Court reiterates that the opposing parties to
the applicant company lodged a request for correction of the Supreme
Court’s judgment on 26 January 2005 and the Supreme Court, by
decision of 16 February 2005, corrected its judgment of 18 December
2002 by introducing a phrase (see § 16 above) which had not been
in the operative part of its judgment before. It is not in dispute
between the parties that the opposing parties’ request had not
been served on the applicant company and it only learned about the
request when the final decision by the Supreme Court was served on
it.
- The
Government argued that in the present case it had not been necessary
to give the applicant an opportunity to comment on the opposing
party’s request because the matter concerned merely the
correction of a manifest clerical mistake. In
such proceedings it was not necessary to hear also the
applicant company before the Supreme Court could proceed to a
decision because the Supreme Court could have also acted ex-officio
without involving the parties.
- However,
the Court is not persuaded that this was the case. In the Court’s
view the modification of its judgment by Supreme Court went beyond
the correction of a manifest and minor clerical mistake, as the
modification at issue did not concern a mere error of typing or
calculation or related to an apparent contradiction in the text of
the judgment. Rather, a complete phrase was introduced which
significantly changed the text of the judgment and had serious
repercussions on the financial position of the applicant company.
- In
this respect the Court reiterates that the principle of equality of
arms requires that each party should be afforded a reasonable
opportunity to present his case under conditions that do not place
him at a substantial disadvantage vis-à-vis his opponent. Each
party must be given the opportunity to have knowledge of and comment
on the observations filed or evidence adduced by the other party (see
Beer, cited above, § 17 with further references).
- The
Court attaches great importance to the demands of efficiency and
economy of proceedings as its case-law bears out, but that objective
does not, however, justify disregarding the fundamental principle of
adversarial proceedings. In fact, Article 6 § 1 is intended
above all to secure the interests of the parties and those of the
proper administration of justice (see Beer, cited above, §
18 with further references).
- In
the Court’s view it would be in accordance with the principle
of equality of arms that a domestic court, which had been made aware
of a manifest and minor clerical mistake by one of the parties,
proceed to its correction without a further exchange of submissions
by the parties. However, such an approach, based on demands of
efficiency and economy of proceedings is not appropriate to the
proceedings in the present case because, as has been pointed out
above, the correction at issue clearly went beyond the correction of
a manifest and minor mistake (see § 28).
- There
has accordingly been a violation of Article 6 § 1 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 7,467.51 euros (EUR) in respect of pecuniary
damage, as, following the modification of the judgment of the Supreme
Court of 18 December 2002 on 16 February 2005, it had to reimburse
procedural costs increased by that amount to the opposing party.
- The
Government dispute this claim.
- The Court reiterates that it cannot speculate what the
outcome of the proceedings would have been if they had been in
conformity with Article 6 of the Convention (see Hofbauer v.
Austria, no. 7401/04, § 35, 10 May 2007). Accordingly, the
Court dismisses the claim for damages for pecuniary loss, as it
cannot discern any causal link between the violation found and the
pecuniary damage alleged.
B. Costs and expenses
- The
applicant also claimed EUR 5,400 for the costs and expenses incurred
before the Court plus turnover tax chargeable on this amount.
- The
Government considers that the costs and expenses claimed by the
applicant company are excessive.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 3,000 for the
proceedings before the Court, plus any tax that may be chargeable to
the applicant company.
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
6 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 3,000 (three
thousand euros), plus any tax that may be chargeable to the applicant
company, 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 amount 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 24 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
