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FIRST
SECTION
CASE OF
FERIHUMER v. AUSTRIA
(Application
no. 30547/03)
JUDGMENT
STRASBOURG
1
February 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 Ferihumer 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 11 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30547/03) 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 Johann Ferihumer (“the
applicant”), on 13 September 2003.
- The
applicant was represented by Mr B. Wageneder, a lawyer practising in
Ried. The Austrian Government (“the Government”) were
represented by their Agent, Mr F. Trauttmansdorff.
- The
applicant alleged that he had been violated in his right to freedom
of expression under Article 10 of the Convention.
- By
a decision of 14 February 2006, the Court declared the application
admissible.
- Neither
the applicant nor the Government filed further written observations
(Rule 59 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1945 and lives in
Waizenkirchen.
- At
the time of the events, he was the father of a pupil of a secondary
school in Grieskirchen (Bundesoberstufenrealgymnasium) and
vice-chairman and recording clerk (Schriftführer) of the
parents' association (Elternverein) at this school.
- In
protest against the government's cuts in the education budget, the
teachers of this school decided, together with the teaching staff of
two other schools, to reduce and shorten school trips for the school
year 2001/2002. The pupils and some parents, including the applicant,
did not agree with these measures.
- The
applicant called for a vote by the School Committee
(Schulgemeinschaftsausschuss) of the Grieskirchen secondary
school on the question whether the class his son was attending,
should go on a one week trip to Tuscany or Prague. The School
Committee which is composed of three representatives of the teachers,
three parents and three pupils and the director of the school,
represents parents and pupils in certain school matters.
- The
meeting at which the School Committee should have to vote on the
question, after having been once postponed because one of the
teachers' representatives could not participate, was finally fixed
for 22 January 2002.
- On
22 January 2002, before the meeting of the School Committee, the
chair of the parents' association on behalf of the parents, the
pupils' spokesperson on behalf of the pupils and two representatives
of the teachers signed a compromise which provided for only a one-day
school excursion per class during the school year 2001/2002 and for
compensatory school trips in the autumn of 2003.
- On
this day the applicant stated before a journalist of the
“Oberösterreicher Rundschau”, a local
newspaper for Upper Austria, that this conflict (between the
teachers, parents and pupils concerning the boycott measures) was
carried out to the detriment of the pupils and that the teachers were
applying pressure on the pupils and parents to an intolerable extent
and that this amounted in fact to an abuse of their authority.
- On
24 January 2002 the “Oberösterreicher Rundschau”
published an article which stated inter alia: “ 'This
conflict is carried out to the detriment of the pupils' blusters
professor Johannes Ferihumer, representative of the parents and
former teacher at the secondary school. 'Not only this: the teachers
apply pressure on pupils and parents to an intolerable extent. This
amounts in fact to an abuse of their authority. Who is surprised that
the school speaker was at the end of her tether.' ”
- The
majority of teachers of the Grieskirchen secondary school brought
proceedings against the applicant for insult and damage to their
reputation before the Peuersbach District Court.
- The
Peuersbach District Court heard the applicant, the teachers, the
spokesperson of the pupils, the chair of the parents' association and
several other witnesses.
- By
judgment of 9 October 2002, it ordered the applicant to refrain from
repeating the statement that the teachers were applying pressure on
the pupils and parents to an intolerable extent and that this
amounted in fact to an abuse of their authority. It noted that the
statement was an insult and a defamation within the meaning of
Article 1330 of the Civil Code. The applicant had to accept the most
unfavourable interpretation of this statement which meant that the
teachers had used unlawful and unobjective means in order to make
parents and pupils agree to the boycott measures. The applicant had,
however, failed to submit any evidence to prove this reproach. The
court noted that it was true that, in the course of time the
atmosphere between the pupils and teachers at the Grieskirchen
secondary school had been strained. The spokesperson of the pupils
had complained that the teachers did not take her seriously and
avoided any discussion about the boycott measures with her. She had,
therefore, resigned from her function as spokesperson. The court
further observed that the conflicting interests of teachers, parents
and pupils in regard to the boycott measures naturally caused
tensions. There was, however, no indication that the teachers had
used unlawful and unobjective means, such as, for example, the use of
their authority to assign marks, in order to make the parents and
pupils agree to the compromise. It was, on the contrary, because of
the teachers' unbending attitude concerning the boycott measures that
pupils and parents had finally resigned and agreed to the compromise.
- The
court dismissed the teachers' further request for an injunction as
regards the applicant's statement that the conflict was detrimental
to the pupils.
- The
applicant appealed against this decision. He submitted inter alia
that he had alluded to the subtle measures the teachers had employed
in order to reach a compromise, such as their threat to boycott the
meeting of the School Committee and their tactics to undermine the
authority of the pupils' spokesperson. This was contrary to their
official duties and, therefore, unlawful. He further referred their
successful tactics to delay the meeting of the School Committee, the
testimony of some pupils who had stated that they had felt under
pressure and the fact that, in the context of the discussions
concerning the boycott measures, both the pupils' spokesperson and
the chair of the parents' association had resigned from their
functions. The statement at issue was a value judgment with
sufficient factual basis and was protected by his right to freedom of
expression under Article 10 of the Convention. From the context of
the situation in which the statements had been made, it was clear
that he had referred to the pressure which had led to the signing of
a compromise. Neither the concerned pupils, nor the parents had
understood his criticism to the effect that the teachers had applied
psychical or verbal violence or had applied pressure by their
authority to assign marks. Furthermore, the teachers had themselves
attracted the attention of the public by their boycott measures which
had provoked criticism and resistance.
- On
5 February 2003 the Wels Regional Court dismissed the appeal. It
noted that the statement at issue constituted a statement of fact
susceptible of proof. The applicant had failed to prove that the
statement was true. The injunction at issue did, therefore, not
violate the applicant's right to freedom of expression. The court
further ordered the applicant to pay the costs of the proceedings.
This decision was served on the applicant's counsel on 13 March 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained about violation of his right to freedom of
expression under 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 contended that the injunction issued against the applicant
constituted an interference with his rights under Article 10 of the
Convention which was, however, justified under § 2 of this
provision. It had a legal basis, namely Section 1330 of the Civil
Code, and pursued the legitimate aim of protection of the reputation
of others. As to the necessity of the interference, they argued that
the Austrian courts classified the applicant's statements as
statements of facts. An essential element for this classification was
that the applicant had not given any explanation for his statements
which was thus not discernible as a value judgment. There was no
factual basis to enable the reader to evaluate himself why the
applicant had come to his conclusions. Therefore, it appeared
legitimate that the Austrian courts attributed to the statements at
issue the meaning usually conveyed by similar reproaches, namely that
the plaintiffs had been guided by improper and unlawful motives. The
applicant himself had endorsed this interpretation as, in his appeal
with the Regional Court, he had argued why the teachers' conduct had
allegedly been unlawful. However, the Austrian courts, after
comprehensive evaluation of all evidence, came to the conclusion that
these accusations were factually incorrect. The measures taken by the
Austrian courts were proportionate, as the applicant was merely
ordered to refrain from making further such statements which did not
hinder him to express his opinion in other less defamatory or
insulting words. The Government finally argued that, even assuming
that the statements at issue were value judgments, the interference
was proportionate as the applicant's statements were unsubstantiated
and the details of the underlying conflict were not known to the
public. Such extremely harsh, excessive and generalising criticism
was not justified by the applicant's interest in several-day
excursions abroad.
- The
applicant argued that the statements at issue amounted to value
judgments which had sufficient factual basis. He had made the
statements as an immediate reaction upon the compromise signed by the
teachers, parents and pupils. Having regard to his commitment for the
pupils' case, he had reasons for his indignation. As regards the
factual basis of his statements, the applicant referred to the fact
that the pupils' spokesperson resigned from her function, that there
had been tensions in the school and that the meetings of the
determining School Committee were scheduled. The Austrian courts'
findings that, in doubt, the applicant had to accept the most
unfavourable interpretation of this statement was contrary to his
right to freedom of expression. Moreover, 40 teachers had already
attempted to institute criminal proceedings against him before the
civil proceedings at issue. These proceedings had been discontinued
on formals grounds and it had, therefore, been possible that a
criminal sanction would have been imposed on him as well.
- The
Court notes that the parties agreed that the injunction at issue
constituted an interference with the applicant's right to freedom of
expression under Article 10 of the Convention. The interference was
prescribed by law, namely by Section 1330 of the Civil Code and
served the protection of the reputation or rights of others. The
issue is, therefore, whether it had been “necessary within a
democratic society” within the meaning of § 2 of
Article 10.
- The Court recalls that the test of necessity in a
democratic society requires the Court to determine whether the
“interference” complained of corresponded to a “pressing
social need”, whether it was proportionate to the legitimate
aim pursued and whether the reasons given by the national authorities
to justify it were relevant and sufficient. In assessing whether such
a “need” exists and what measures should be adopted to
deal with it, the national authorities are left a certain margin of
appreciation. This power of appreciation is not however unlimited,
but goes hand in hand with a European supervision by the Court, whose
task it is to give a final ruling on whether a restriction is
reconcilable with freedom of expression as protected by Article
10. The Court's task in exercising its supervisory function is
not to take the place of the national authorities, but rather to
review under Article 10, in
the light of the case as a whole, the decisions they have taken
pursuant to their margin of appreciation. In so doing, the Court has
to satisfy itself that the national authorities applied standards
which were in conformity with the principles embodied in Article 10
and, moreover, that they based their decisions on an acceptable
assessment of the relevant facts (see, amongst many other
authorities, Dichand and Others v. Austria, no. 29271/95,
§ 38, 26 February 2002). One element of particular importance
for the Court's determination is the distinction between statements
of fact and value judgments. While the existence of facts can be
demonstrated, the truth of value judgments is not susceptible of
proof. The requirement to prove the truth of a value judgment is
impossible to fulfil and infringes freedom of opinion itself, which
is a fundamental part of the right secured by Article 10 (see,
for example, Lingens v. Austria, judgment of 8 July 1986,
Series A no. 103, p. 28, § 46, and Oberschlick
v. Austria (no. 1), judgment of 23 May 1991,
Series A no. 204, p. 27, § 63). However, even where a statement
amounts to a value judgment, the proportionality of an interference
may depend on whether there exists a sufficient factual basis for the
impugned statement, since even a value judgment without any factual
basis to support it may be excessive (Jerusalem v. Austria,
no. 26958/95, § 43, ECHR 2001-II).
- Turning
to the circumstances of the present case, the Court observes that the
applicant's impugned statement was made in the immediate context of a
heated discussion between teachers, pupils and parents. The applicant
did not favour the compromise finally reached and reacted by saying
that the teachers were applying pressure on the pupils to an
intolerable extent and that this amounted in fact to an abuse of
their authority.
- Unlike
the domestic courts, the Court does not find that this statement
necessarily suggested that the teachers had used unlawful and
unobjective means. This interpretation apparently focuses on the
wording “abuse of authority” and neglects that the
applicant referred in this regard to his feeling that the “teachers
applied intolerable pressure”. The applicant thereby expressed
his opinion on the teachers' conduct in the conflict at issue and
made a value judgment, the truth of which, by definition, is not
susceptible of proof.
- Having
regard to the undisputed fact that there were considerable tensions
at the school concerned which inter alia brought the pupils'
spokesperson to resign, the Court further finds that there was
sufficient factual basis for the impugned statement which, therefore,
cannot be considered as excessive. In this regard, the Court takes
further account of the fact that the applicant was vice-chair of the
parents' association.
28. The
Court does not accept that the limited nature of the interference,
namely the order to refrain from repeating the impugned statement, 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.
- It
follows that there has been a violation of the applicant's rights
under 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 reimbursement of 418.17 euros (EUR), including
value added tax (VAT), for the proceedings costs he had to pay to the
plaintiffs. He further claimed EUR 700 in respect of non-pecuniary
damage.
- The
Government contested the applicant's claim for non-pecuniary damage.
- Having
regard to the direct link between the applicant's claim concerning
reimbursement of the costs of the domestic proceedings he was ordered
to pay to the plaintiffs and the violation of Article 10 found by the
Court, the Court finds that applicant is entitled to recover the full
amount of 418.17 EUR in this respect. This amount includes VAT.
- As
regards the applicant's claim for non-pecuniary damage, however, the
Court finds that the finding of a violation constitutes in itself
sufficient just satisfaction.
B. Costs and expenses
- The
applicant claimed EUR 590.96 for legal costs incurred in criminal
defamation proceedings against him which had subsequently been
discontinued. He further claimed EUR 8,760.39, including VAT, for
legal costs incurred in the civil injunction proceedings. He finally
claimed EUR 1,831.68, including VAT, for the costs of the
proceedings before the Court.
- The
Government contested the claim for reimbursement of legal costs
incurred in criminal defamation proceedings. They further contented
that the costs claimed for the civil injunction proceedings were
excessive insofar as they included the amount of EUR 318 which were
not substantiated in the applicant's cost note.
- The
Court reiterates that in order for costs and expenses to be included
in an award under Article 41 of the Convention, it must be
established that they were actually and necessarily incurred in order
prevent the violation found by the Court and are reasonable as to
quantum. The Court considers that these criteria are not fulfilled in
respect of the criminal defamation proceedings which had not been the
subject of the present application. Thus, no award can be made in
this regard. As to the costs incurred in the civil injunction
proceedings and the Convention proceedings, the Court finds that the
applicant had, except for EUR 318 which had been subject of the
Government's objection to the costs of the civil injunction
proceedings, shown that these conditions were fulfilled. It
consequently awards EUR 8,442.39 in respect of the domestic
proceedings costs and EUR 1,831.68, in respect of the Convention
proceedings costs.
38. In
total, it awards EUR 10,274.07 in respect of cost 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
- Holds that there has been a violation of
Article 10 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
- 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 418.17
(four hundred eighteen euros and seventeen cent) in respect of
pecuniary damage and EUR 10,274.07 (ten thousand two hundred
seventy four euros and seven 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 1 February 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
