566
13.11.2003

 

Press release issued by the Registrar

 

Chamber judgment in the case of
 Scharsach and News Verlagsgesellschaft mbH v. Austria

 

The European Court of Human Rights has today notified in writing the following Chamber judgment, which is not final[1].

 

Scharsach and News Verlagsgesellschaft mbH v. Austria (application no. 39394/98).  Violation Article 10

 

The applicants are Hans-Henning Scharsach, an Austrian journalist who was born in 1943 and lives in Vienna, and the News Verlagsgesellschaft mbH company, the owner and publisher of the weekly newspaper News.

 

In 1995 News published an article entitled “Brown instead of black and red?” (Braun statt Schwarz und Rot ?) in which Mr Scharsach explained why he was opposed to the possibility of a government coalition including the Austrian Freedom Party (FPÖ), led by Jörg Haider. The article criticised members of the FPÖ who had not been able to dissociate themselves from the extreme right, stated that “old closet Nazis” (Kellernazi) who had left the party in the 1980s had returned under Haider and went on to mention a number of persons by name, including a Mrs Rosenkrantz.

 

At the material time Mrs Rosenkrantz, a politician, was a member of the Lower Austria Regional Parliament (Landtag) and deputy chair of the Lower Austria regional branch of the FPÖ. She is now a member of the Austrian Parliament (Nationalrat) and chair of the Lower Austria regional branch of the FPÖ. Her husband is a well-known right-wing politician and publisher of the newspaper Fakten, which is considered to be on the extreme right.

 

Mrs Rosenkrantz brought criminal proceedings for defamation (üble Nachrede) against Mr Scharsach and an action for damages against News Verlagsgesellschaft mbH. On 21 June 1998 the St Pölten Regional Court (Landesgericht) found Mr Scharsach guilty of defamation and ordered him to pay a fine of 60,000 schillings (ATS), suspended (approximately EUR 4,360). Under the Media Act (Mediengestz), News Verlagsgesellschaft mbH was ordered to pay the complainant ATS 30,000 (EUR 2,180). The Regional Court found that the article insinuated that Mrs Rosenkranz was engaged in clandestine neo-Nazi activities but had not proved that that was the case. The applicants appealed unsuccessfully.

 

The applicants complained that the judgment against them had infringed their right to freedom of expression, guaranteed by Article 10 of the European Convention on Human Rights.

 

The European Court of Human Rights noted that the judgment against the applicants amounted to interference with their right to freedom of expression. The interference had been prescribed by law and pursued a legitimate aim, namely protection of the reputation or rights of others.

 

Noting that the offending article had been written in a political context and had targeted a politician, the Court observed that the limits of acceptable criticism were wider for a politician than for a private individual. It considered that the Austrian courts had failed to take sufficient account of the article’s political context when assessing the meaning of the offending terms. The article in question had criticised the complainant, together with other FPÖ politicians, for their failure to dissociate themselves from the extreme right, i.e. to take a stand against extreme-right positions. The term “closet Nazi” used in the article was to be understood in its context, in the sense given to it by the FPÖ politician who had first coined it, as a description of a person who had an ambiguous relation to National Socialist ideas.

 

Contrary to the Austrian courts, the Court considered that the term “closet Nazi” was not to be regarded as a statement of fact but as a value judgment on an important subject of public interest. While it was true that it had not been established that Mrs Rosenkrantz herself was a neo-Nazi, she was the wife of a politician who edited an extreme-right newspaper. As a politician she had never publicly dissociated herself from her husband’s political views and had publicly criticised the Prohibition Act, which banned National Socialist activities.

 

Considering that Mrs Rosenkranz was a politician, and having regard to the role of journalists and the press in imparting information and ideas on matters of public interest, even those that may offend, shock or disturb, the Court considered that the use of the term “closet Nazi” did not exceed what might be considered fair comment. That being so, the interference with the applicants’ rights had been disproportionate to the aim pursued and was not “necessary in a democratic society”.

 

The Court accordingly concluded, by 6 votes to 1, that there had been a violation of Article 10. It held unanimously that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant company. The Court unanimously awarded the applicants EUR 12,646.83 for pecuniary damage and EUR 6,424.94 for costs and expenses. By 6 votes to 1 it also awarded EUR 5,000 to Mr Scharsach for non-pecuniary damage. (The judgment is available only in English.)

 

These summaries by the Registry do not bind the Court. The complete texts of the Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

 

Registry of the European Court of Human Rights
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Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)
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Fax: +00 33 (0)3 88 41 27 91

 

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site.