PROCEDURE

The case originated in an application (no. 3084/07) 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 Falter Zeitschriften GmbH, a limited liability company with its registered office in Vienna (“the applicant”), on 27 December 2006.

The applicant company was represented by Mr A.J. Noll, 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 European and International Affairs.

The applicant company alleged that a court judgment under the Media Act ordering it to pay damages had infringed its right to freedom of expression under Article 10 of the Convention.

On 29 January 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant company is the owner and publisher of the weekly newspaper Falter.

A. The background to the case

On 2 May 2005 the Wiener Neustadt Regional Court, sitting as a court with two professional and two lay judges (Schöffengericht) under Presiding Judge I.K., acquitted H.P., a security officer at the Traiskirchen Reception Centre, of a charge of raping K., an asylum seeker from Cameroon, basing its ruling on the principle of in dubio pro reo.

The reasoning of the judgment contained the following passage: “Lastly, the statement made by witness K. during her examination [recorded on video tape in a separate room – kontradiktorische Einvernahme], to the effect that she had previously been engaged in prostitution in her country of origin, allows inferences to be drawn with regard to the statement by the accused [P.] that the witness might have become involved with him because she expected – for whatever reason – to gain some advantage.”

B. The article published by the applicant company

In issue no. 19/05 of Falter, an article was published on page 14 concerning the criminal proceedings against P., which read as follows: “‘Sex with a nigger woman’ The courts: An asylum seeker lodges a criminal complaint alleging rape against a security officer. The case takes on a political dimension because it exposes conditions in the Traiskirchen centre. One year later only the victim is still before the courts. The chronicling of a judicial scandal.

F. K.

She thought she had made it to safety. Elaine B. (name changed, ed.) had been ill-treated by police officers in Cameroon, kicked by them in the abdomen and placed with 18 other women in ‘stinking, damp cells’ for having demonstrated on behalf of her son, abducted by the authorities. She had survived her escape on a container ship, during which she ‘nearly went mad’ because in mid-ocean she ‘no longer knew whether it was night or day outside’. Finally, after a lorry journey lasting several days, she found herself in Vienna, where all at once, she was ‘surrounded by white people’. She thought she was safe. Her case was so well documented that Austria, in the form of the normally very strict Federal Refugee Office, granted her asylum quickly and without red tape. But then this country revealed its other side. Elaine B., 35, a well-groomed businesswoman and mother of three, holds on tight to her handbag during the interview and breaks down in tears repeatedly, says her life is a mess [and that] she can no longer trust the authorities here because they treat her like a liar and a prostitute. Elaine B. caused a media stir last year when she became the first asylum seeker to lodge a complaint against a blind-drunk security officer who she claims abused his authority in the Traiskirchen centre in order to rape her. Now she faces trial for defamation. A few fellow Cameroonians, as well as the campaigning lawyer W.R. and his colleague R.H., are continuing to stand by her. ‘Otherwise I would have killed myself’, says Elaine. It’s difficult to know where to begin in this case. With the then Interior Minister E.S. who, while the proceedings were in progress, told the National Assembly that the woman’s accusations were ‘unfounded’? With the company European Homecare, engaged by him, which ostensibly ran the centre on a much smaller budget than Caritas, but in fact used sub‑contractors employing drunken nightwatchmen who had to be dismissed for sexual assault? With centre director F.S., who later commented on the attacks in the washrooms of the women’s quarters by telling the court: ‘According to our information such incidents are very common and no one thinks anything of them’? Or with Judge I.K., who at the end of the drama would no longer ‘refute’ the suggestion that Elaine B. was just a ‘prostitute’ – although not even the accused security officer claimed that that was the case? Spring 2004. With a thousand asylum seekers, Traiskirchen is hopelessly over­crowded. Another hundred arrive every day. The Interior Ministry is coming under political pressure and discredits Caritas. Security officers at the centre later state in court that female asylum seekers could be paid for quick sex. They also tell of pimps rolling up to the centre in their cars. The sexual exploitation seems to have been unbearable. In a series of articles for profil, a female journalist published an email and statements from several women complaining of sexual assaults by security staff. ‘Please help us!’ pleaded the women. The Interior Ministry stated at the time that the police were confronted with a ‘wall of silence’. At that time Elaine B. from Cameroon demanded an interview with the head of the Traiskirchen [branch of the] Gendarmerie. She placed a pair of torn red underpants on the interview room table and described ‘through her tears’ how a drunken security officer had pursued her for days, pointing to his uniform and threatening to have her thrown out of the centre and to slit her throat. One night he had crept into the room, switched on the light and told her to go with him. Elaine B., who had not yet been granted asylum and feared his authority, wrapped a towel around herself and followed the uniformed officer into the office, where there was a bed and a roll of kitchen towel. He had prepared the kitchen towel for ‘ejaculating into’, as he later admitted. ‘At first I didn’t realise what the man wanted. I thought I’d done something wrong. But there in that room I realised that he was going to rape me’, stated Elaine B. She could smell the drink on his breath and didn’t dare cry out. The practising Christian from Cameroon is called upon to describe the incident many more times in the most intimate detail, without contradicting herself. She describes with precision how the man locked the door and removed the key. She tells of the pains in her lower abdomen afterwards and how she washed herself with warm water for weeks. She immediately identifies the security officer in a photo. The officials record in the minutes that Elaine B. appears disturbed. ‘We were in no doubt that it happened as she described it. The woman was intimidated and seemed very anxious’, recalls District Inspector W.S., who investigated the case, a year later in court. His statement, like that of the victim, is disregarded. Disturbing errors occur. For the first interview in the interview room no trained interpreter can be found; moreover, the traumatised woman is initially interviewed by a man. In their minutes the police officers at times refer to Elaine B. not by her name but as ‘the nigger woman’. She is repeatedly linked to prostitution.

H.P., 48, is interviewed as the presumed perpetrator. When first questioned the trained bricklayer with the thick moustache states: ‘I didn’t have sex with the nigger woman.’ The next time his recall is more accurate: ‘It’s possible that I had intercourse with the nigger woman. I’d had twelve and a half litres of beer and one and a half litres of herb lemonade mixed with red wine.’ He claims it was entirely consensual. However, he doesn’t recognise Elaine in a photo. Police officer: ‘Could the woman have left the room if she’d wanted to?’ Answer: ‘No, only I had a key’. Again the question: ‘Did you pay the nigger woman for sexual intercourse?’ Answer: ‘No way!’ Third [interview] record: ‘I’d noticed the nigger woman about a week before we had sex. I fancied her from the beginning. I went into her room and gestured to her to come out.’ According to him, she followed him out of her own accord, undressed in front of him, took hold of his penis, inserted it and then got dressed again. Then she disappeared for good – without making any demands. ‘Maybe she thought she’d be given asylum sooner’ speculates the security officer. Something else occurs to him. He had offered to buy the woman a drink in the bakery a few days before. She had stroked his back and ‘cosied up’ to him.

Elaine B. denies this version of events. She says that she had other things on her mind at the time. She is not a whore. She felt repelled by this fat man with a moustache who smelled of alcohol, she was afraid of him. Also: if she had really been hoping to be granted asylum, why would she then have defamed the security officer? Next to take the witness stand are the employees of the bakery. The first to be examined is saleswoman R.Z.: ‘She gave him a kiss. She was fairly young, I’d say between 20 and 25. The two of them were talking quietly. I couldn’t describe the woman.’ When confronted with Elaine B. Z. says: ‘I’m not quite sure whether it’s her.’ At the second confrontation a year later she suddenly says: ‘Yes, that’s her!’ She has something else to get off her chest: ‘I have to say that we’re losing a lot of customers because of the black Africans. It’s bad for business!’ Likewise the second saleswoman. The first time she gives evidence: ‘I’m not sure’. The second time: ‘I’m 99 per cent certain.’ Elaine B. is 35 years old and speaks neither German nor English – only French. The quiet talk described could not have taken place. One detail, however, is never mentioned: at the time, the bakery was delivering tens of thousands of bread rolls to the reception centre. The Wiener Neustadt Public Prosecutor’s Office, which sees the Africans from Traiskirchen most often in connection with drug dealing, wants to discontinue the proceedings on the basis of the statements by the bakery employees. Elaine’s lawyer, W.R., then brings a ‘subsidiary private prosecution’ (Subsidiaranklage) before the Court of Appeal. The victim can take over the role of the public prosecutor at his or her own risk. The unexpected happens: the Court of Appeal finds in the woman’s favour and orders the Justice Ministry to prosecute the security officer. ‘As the case file currently stands, both the factual element of the offence of rape and the element of coercion appear to be made out beyond doubt’, states the judgment. According to the court, the bakery employees could not have identified Elaine. The trial with judges and lay assessors before Wiener Neustadt Criminal Court does not last long. No evidence is taken either from other asylum seekers or from the female staff in the women’s quarters. Judge I.K. acquits the security officer. Of course, if she has doubts as to the defendant’s guilt, she has to do so. But this judge and her lay assessors are in no doubt as to the woman’s guilt. They have unfinished business with the African woman and attribute the basest intentions to her – without furnishing any proof. The reasoning is diametrically opposed to that of the Court of Appeal: ‘It cannot be established that the accused performed sexual intercourse against the will of Elaine B.’ And what of the statements of the bakery employees, called into question by the Court of Appeal? ‘Clear proof’ that Elaine B. had also been lying about the sexual encounter. The fact that the bakery employees got her age wrong by ten to fifteen years? ‘The difficulty of correctly estimating the age of persons with a different skin colour is known to the courts.’ And the constantly changing replies of the security officer? ‘He is a very simple man’ and it therefore spoke in his favour ‘that he himself admitted that intercourse with the witness was not easy to achieve.’ The ‘black African’ on the other hand, appeared ‘very confident’, with the result that ‘it is hard to imagine that she could have felt so intimidated by the accused, who appears somewhat unsure of himself, that she left her quarters against her will.’ And what of the only piece of physical evidence, the torn red underpants? ‘These have no evidentiary value’ according to Judge K. Why not? Because the accused said that the underpants had been ‘beige’. Not another word from the detectives who had been faced with a crying, completely intimidated woman. No mention of the fact that the security officer himself admitted locking Elaine in [the room] and removing the key. Not a single line about the predicament in which female asylum seekers found themselves at the time. Complete understanding, on the other hand, for the accused: ‘The accused’s objection that the woman may have hoped, since her asylum claim had not been decided, to obtain Austrian citizenship by marrying him, has not been completely refuted’. Even if this were true, why would she then lodge a complaint against him two weeks later? The judgment fails to give rise to a scandal. ‘Flirtation in Traiskirchen’ runs the title in the Kurier. Then, what women’s shelters have been complaining of for years happens: the woman becomes the presumed perpetrator. With the approval of Justice Minister K.M., the principal public prosecutor’s office institutes preliminary proceedings for defamation. Elaine B. must appear before the investigating judge ‘or be brought by force’. She could face up to five years in prison. ‘That’s just routine, nothing unusual’ says a Justice Ministry spokesman. According to principal public prosecutor P.: ‘After [the] acquittal we have no choice but to initiate proceedings.’ Justice Minister K.M. has promised to do more to protect the victims of crime. She should study this case. She is the highest-ranking public prosecutor. She has the right to give instructions. She bears the political responsibility if this woman, in addition to everything else, faces charges.”

C. The compensation proceedings under the Media Act

Subsequently, Judge I.K. brought an action for defamation against the applicant company under section 6 of the Media Act and Article 111 of the Criminal Code, and requested that the applicant company be ordered to pay compensation and retract the following statements made in the article, which she claimed amounted to a statement that she had grossly misused her office as a judge: “Judge I.K. alleges that the asylum seeker had immoral motives.” Judge I.K. alleges in the judgment – without giving any reasons – that the asylum seeker was driven by the basest motives. “Judge I.K. acquits the security officer. Of course, if she has doubts as to the defendant’s guilt, she has to do so. But this judge and her lay assessors are in no doubt as to the woman’s guilt. They have unfinished business with the African woman and attribute the basest intentions to her – without furnishing any proof.” Judge I.K. had no doubt about the woman’s guilt. The judge ignored relevant evidence and delivered a scandalous judgment (“The judgment fails to give rise to a scandal.”)

On 1 September 2005 the first hearing in the defamation proceedings was held. The applicant company argued that the impugned statements were true and sought to prove the truth of those statements by asking the court to call several witnesses and admit as evidence the files of the proceedings concerning K.’s asylum request and the criminal proceedings against H.P. It considered that by publishing the impugned statements it had merely expressed criticism, protected by the freedom of speech, which had not concerned the acquittal itself but rather the way in which the victim of the crime had been treated in the written version of the judgment, which had neglected important evidence and had accused the victim, K., of having been a prostitute.

In October 2005 the applicant company sought the disqualification of Judge N.F., the judge assigned to the media proceedings, for bias. It submitted that the lawyer representing the claimant, I.K., had also represented N.F. in the past in court proceedings. As Judge N.F. had to decide on a case in which her previous lawyer was acting as representative of one of the parties, there was reasonable doubt that she would not decide the case objectively. The president of the Vienna Regional Court dismissed the motion on 17 October 2005 and held that the issue raised by the applicant was not sufficient to give rise to doubt that Judge N.F. would not decide the case objectively.

On 17 October 2005 a further hearing was held in the defamation proceedings. The hearing was adjourned in order to hear three witnesses proposed by the applicant company. The Regional Court refused to hear other witnesses proposed by the applicant company, as it considered that those persons could not make any statements relevant to the proceedings. The applicant company had sought to call R., who had been K.’s lawyer in the criminal proceedings, in order to clarify the meaning of statements that K. had given during her examination as a witness which had been recorded on video in order to prevent her as the victim having to face the accused (kontra­diktorische Einvernahme). This request was refused by the Regional Court on the grounds that the transcript of K.’s examination had been included in the case file and therefore no additional witness was required.

On 12 December 2005 the Regional Court held another hearing in the defamation proceedings in which it examined two of the witnesses proposed by the applicant company. The third witness proposed did not appear. On the same date the Regional Court found against the applicant company. It held that the impugned statements had constituted defamation under Article 111 of the Criminal Code and that I.K. was therefore entitled to compensation, which it set at 7,000 euros (EUR). It also ordered the applicant company to publish a summary of the judgment.

The Regional Court found that the contents of the article had given a biased account of the taking of evidence at the trial of H.P., taking the side of K. and characterising any statement of a witness which did not coincide with hers as lacking credibility. According to the article, the judge had acted arbitrarily and out of racist motives and had disregarded evidence produced, whereas the rape asserted by K. had been described as proven and the assessment of evidence by the Regional Court as absurd. Such an account was not an objective critique of the judgment.

As regards the criminal proceedings against H.P., the Regional Court observed that: (a) they had been discontinued by the Public Prosecutor; and (b) upon a subsequent decision by the Senior Public Prosecutor H.P. had been committed for trial (Versetzung in den Anklagestand). Following three hearings at which a total of seven witnesses had been heard, the tape recording of the questioning of the victim had been viewed in part by the court and a confrontation between two witnesses and K. had taken place, the court had acquitted the accused.

In its judgment of 2 May 2005 the court had found that it could not be excluded that the sexual intercourse which had taken place between K. and the accused had been consensual, in accordance with the version of events given by the accused and which had, to some extent, been corroborated by the statements of witnesses who had seen the accused and K. together in a coffee shop in town. K.’s assertion that she had been the victim of an assault had not been excluded but because it contradicted the statements of witnesses it had been considered to be partially implausible. The accused had not therefore been acquitted because his innocence had been proven but rather on the basis of the principle of in dubio pro reo.

The Regional Court also referred to one passage of the written judgment on which the article had put much emphasis, namely a reference to a statement by K. made in the course of her questioning as a witness to the effect that she had previously been engaged in prostitution in her country of origin, which the judgment stated had allowed inferences to be drawn with regard to the statement by the accused that the witness might have become involved with him because she expected – for whatever reason – to gain some advantage.

The Regional Court found that the applicant company had not succeeded in proving the truth of the impugned statements. From the case file concerning the proceedings against H.P. and, in particular, the written version of the judgment it appeared that Judge I.K. had dealt with all the evidence taken and had assessed each item of evidence extensively. Therefore, it could not be established that Judge I.K. had made base insinuations (üble Unterstellungen) or disregarded evidence. The judgment had clearly indicated the court’s reluctance to accept the version of events given by K. also. In addition, the indication of K. having been a prostitute in the past had been based on a statement from the questioning of that witness and had not been made up out of thin air. The relevant part of the transcript in question read as follows: [Original] “Untersuchungsrichter: Es gibt einen Zeugen. Er sagt aus: “im Haus Nr. 8 gibt es Frauen die auf den Strich gehen.” Wissen Sie was davon? Zeugin: Keine Ahnung, ich nicht, nein. Seit meiner Heimat habe ich es nie gewagt.” [English translation] “Investigating judge: There is one witness. He said: “at no. 8 there are women who walk the streets.” Do you know anything about it? Witness K.: No idea, not me, no. Since leaving my country I haven’t dared it.” An error in the translation of that statement could not be excluded, but that did not allow the conclusion that there had been no basis in the file for the above finding of Judge I.K.

The accusation that a judge, who was under the duty to act objectively and impartially, had without any factual basis and out of racist motives deliberately disregarded evidence in order to acquit an accused from the same country (inländischen Angeklagten) had to be qualified as defamation and there was hardly a more severe accusation which could be levied against a judge. The term scandal of justice was a value judgement, which, however, was based on assertions of fact which had been disproven in the proceedings.

Insofar as the applicant company had relied on Article 10 of the Convention, the Regional Court referred to the case of Prager and Oberschlick v. Austria (26 April 1995, Series A no. 313), and observed that the press had the right and the duty to impart information on matters of public interest, including questions concerning the functioning of the justice system, and to criticise any shortcomings found, but in doing so it had to be mindful of the special role of the judiciary in society. It was therefore necessary to protect public confidence in the judiciary against destructive attacks that were essentially unfounded. Taking these principles into account, the sharp critique of Judge I.K. in the impugned article, which had lacked any sufficient factual basis, had been excessive.

Taking the gravity of the attacks on the claimant’s professional reputation, the broad public attention the article had received and the consequences it had had for the claimant, the Regional Court found that the amount of EUR 7,000 in compensation was appropriate.

The applicant company appealed on 8 March 2006 against the Regional Court’s judgment. On 19 June 2006 the Court of Appeal dismissed the appeal and upheld the judgment. This judgment was served on the applicant’s company lawyer on 29 June 2006.