Beer v. Austria



AS TO THE ADMISSIBILITY OF

Application No. 18763/91

by Michael BEER

against Austria

The European Commission of Human Rights sitting in private on

12 January 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber,

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 June 1991 by

Michael BEER against Austria and registered on 4 September 1991 under

file No. 18763/91;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to :

- the Commission's decision of 14 October 1992 to communicate the

application;

- the Commission's decision of 16 February 1993 to grant the

Government's request for extension of the time-limit to submit

their observations, pending proceedings relating to a plea of

nullity for the preservation of the law before the Austrian

Supreme Court;

- the Government's submissions of 16 July 1993 according to which

the plea of nullity had been successful;

- the applicant's submissions of 2 November 1993.

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

The applicant, born in 1946, is an Austrian national and now

resident at Wewak, Papua New Guinea. He is a teacher by profession.

Before the Commission, he is represented by Mr. G. Mory, a lawyer

practising in Salzburg.

In January 1987 the applicant, at the time in question town

councillor in Zell am See, published an article in the periodical of

a local citizens' action group ("BLIZ") about criminal proceedings

before the Salzburg Regional Court. Those proceedings concerned

charges of fraudulent conversion to the detriment of the Zell am See

Tourist Organisation F., which participated in the proceedings as

private party, represented by Mr. R., a lawyer practising in Salzburg.

One hearing had been attended by a trainee lawyer working with Mr. R.

The applicant's article contained the following passage

(translation):

"At the hearing, the remarkable restraint exercised by the

private party [F.] was also noticed. [F.] should have been very

keen to get back almost one million of embezzled tax money.

Mrs. N.N., trainee lawyer in the law office of Mr. [R.], did not

give this impression at all. "Bliz" will direct its particular

attention to this circumstance! Why did [F.] send a beginner in

the law to take care of such a difficult case?"

On 19 January 1990 the Salzburg Regional Court, in the context

of private prosecution proceedings brought by Mr. R. on charges of

defamation and attack on his financial reliability, acquitted the

applicant.

On 2 April 1990 the Linz Court of Appeal (Oberlandesgericht),

upon Mr. R.'s appeal (Berufung), quashed the acquittal and sent the

case back to the Regional Court. The Court of Appeal found that the

critical average reader could have got the impression that Mr. R. had

negligently contravened his obligations as a lawyer.

On 17 September 1990 the Salzburg Regional Court again acquitted

the applicant.

On 28 February 1991 the Linz Court of Appeal, upon Mr. R.'s

appeal, partly quashed the judgment of 17 September 1990, and convicted

the applicant of defamation under S. 111 of the Austrian Penal Code

(Strafgesetzbuch), and sentenced him to 50 daily rates of AS 400. The

acquittal concerning an attack on Mr. R.'s financial reliability was

confirmed. The Court of Appeal found that the applicant, in his

article, had intended to show that Mr. R. had incorrectly chosen a

trainee lawyer and thereby negligently represented the interests of the

private party F. He had thereby accused Mr. R. of behaviour contrary

to the proper professional conduct of such a nature as to lower him in

public esteem.

On 18 May 1993 the Austrian Supreme Court (Oberster Gerichtshof),

upon a plea of nullity for the preservation of the law (Nichtigkeits-

beschwerde zur Wahrung des Gesetzes), declared that the judgment of the

Linz Court of Appeal of 28 February 1991, to the extent that the

applicant was convicted of defamation, was unlawful. The Supreme Court

quashed the judgment concerned and acquitted the applicant. The costs

of the proceedings were awarded against the Private Prosecutor. The

Supreme Court considered in particular that, having regard to

Article 10 of the Convention, the incriminated statements made by the

applicant could not be regarded as defamation within the meaning of

S. 111 para. 1 of the Penal Code.

COMPLAINTS

The applicant complains that his conviction by the Linz Court of

Appeal on 28 February 1991 violates his right to freedom of expression

as guaranteed under Article 10 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 June 1991 and registered on

4 September 1991.

On 14 October 1992 the Commission decided to communicate the

application to the respondent Government.

On 16 February 1993 the Commission decided to grant the

Government's request for an extension of the time-limit to submit their

observations, pending proceedings relating to a plea of nullity for the

preservation of the law before the Austrian Supreme Court.

By letter of 16 July 1993 the Government informed the Commission

about the above judgment taken by the Supreme Court on 18 May 1993. The

applicant made further submissions on 2 November 1993.

THE LAW

The applicant's complaint under Article 10 (Art. 10) of the

Convention relates to his conviction by the Linz Court of Appeal on

28 February 1991.

The Commission notes that on 18 May 1993 the Austrian Supreme

Court, in proceedings concerning a plea of nullity for the preservation

of the law, quashed this conviction and acquitted the applicant on the

ground that, having regard to Article 10 (Art. 10) of the Convention,

the incriminated statements made by him could not be regarded as

defamation within the meaning of S. 111 para. 1 of the Penal Code.

In these circumstances, the Commission finds that the applicant

is no longer a victim of the alleged violation of Article 10 (Art. 10)

of the Convention. His complaint is, therefore, manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)