ITEMID: 001-79107
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KAPLAN v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 6;Not necessary to examine Art. 13;Not necessary to examine P7-5;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant, born in 1968, lived at the time of the events with her family in Absdorf.
9. Following difficulties in the relationship with her husband, the applicant left the common household in March 1991. On 29 March 1991 the applicant's husband instituted divorce proceedings with the Kirchberg/Wagram District Court (Bezirksgericht). The court subsequently, on 15 May 1991, suspended the divorce proceedings as the applicant had meanwhile returned to the common household and had reconciled herself with her husband.
10. On 28 May 1991 the applicant, following a violent assault by her husband and his family, left the common household again.
11. On 11 July 1991 she filed an action with the Kirchberg/Wagram District Court (Bezirksgericht) for sole custody of the two children from the marriage, F., born in November 1988, and the M., born in 1990, who stayed at their father's. On 26 July 1991 the District Court granted her provisional custody of the M., at that time a nursling. Subsequently, on 2 August 1991, the M. was taken away from the applicant's husband by compulsory means. On 5 August 1991 the applicant requested the provisional custody of F. and further that the District Court withdraw, as an interim measure, F.'s name from her husband's passport. She submitted that she feared that her husband would bring F. to Turkey.
12. On 20 August 1991 the applicant's husband requested that the divorce proceedings be resumed. However, in a further hearing before the District Court on 7 November 1991, the parties agreed to suspend the divorce proceedings until the outcome of criminal proceedings instituted against the applicant's husband concerning his violent assaults against her.
13. In February 1992 the District Court informed the applicant and her husband that at the moment it would not take any further official measures concerning the custody of their children. It referred in this regard to a report by the Tulln Administrative Authority (Bezirkshauptmannschaft) stating that despite the efforts of its social workers and the parties' repeated questioning by the Youth Office no solution could be reached. Both parents claimed custody, objected to visit arrangements in neutral surroundings and were uncertain whether they wished divorce or not. The District Court in particular referred to the Administrative Authority's statement that there were no reasons to change the present situation of separation of the two children.
14. On 23 April 1992 the applicant reiterated, in the context of submissions made in another matter with the court, her request of July 1991 for sole custody of F.
15. In June 1994, after the criminal proceedings against him had been terminated, the applicant's husband requested that divorce proceedings be resumed. On 25 November 1994 the District Court pronounced the divorce. With final decision of 28 September 1995 the Supreme Court (Oberster Gerichtshof) confirmed the District Court's findings. No decision was taken on the custody of the children.
16. On 12 June 1996 the applicant again requested that sole custody of F. be granted to her and that the court issue an injunction prohibiting the father from bringing F. to Turkey. She submitted that her former husband did not sufficiently care for F. and planned to place F. with his relatives in Turkey at the end of the school year. This would adversely affect the child's well-being.
17. On 14 June 1996 the District Court, without holding a formal hearing, dismissed the latter request. It noted that a possible transfer would not adversely affect the well-being of F., who and whose family, including the applicant, were still more closely related to Turkey than to Austria.
18. The applicant appealed and complained inter alia that the District Court had not taken sufficient evidence and had not taken account of the fact that F.'s transfer to Turkey would in perpetuity frustrate her right to visit which would adversely affect F.'s well-being.
19. In his submissions of 24 July 1996 the applicant's former husband contested to have any intention to bring F. to Turkey and requested that custody of F. be granted to him.
20. On 26 July 1996, the Krems Regional Court (Landesgericht) quashed the District Court's decision and remitted the case back to the District Court to take further evidence as to the concrete danger of F.'s transfer to Turkey and, eventually, his well-being there.
21. The District Court subsequently, on 6 August 1996, requested the Tulln District Administrative Authority for further investigations. On 8 November 1996 the Administrative Authority submitted its report in which it expressed itself in favour of F.'s stay at his father's. The District Court, on the same day, requested the Vienna Youth Welfare Office (Amt für Jugend und Familie) for further information.
22. In March 1997 the applicant informed the District Court that F. had moved to Turkey and that she had now no contact with the child.
23. On 9 June 1997 the District Court rejected all pending requests and declared the custody proceedings null and void. It noted that The Hague Convention concerning the powers of authorities and the law applicable in respect of the protection of infants of 6 October 1961 was applicable to the proceedings at issue. Article 1 of this convention provides that the judicial or administrative authorities of the State of the habitual residence of an "infant" have power to take measures directed to the protection of his or her person or property. In so doing they apply their own law. The District Court found that, having regard to the fact that F. was staying since nearly six months, namely Christmas 1996, with his grandparents in Turkey, had signed off residence and school in Austria and was attending school in Turkey, this country had to be regarded as his habitual residence. Therefore, the case had ceased to be within the scope of Austrian jurisdiction.
24. The applicant appealed and, at the same time, lodged a motion of bias against the competent judge H. at the District Court. In the latter regard she submitted inter alia that H.'s inactivity had brought about the facts on the ground of which the Austrian jurisdiction had ceased.
25. On 15 July 1997 the Krems Regional Court rejected the motion of bias. On 9 October 1997 it dismissed the applicant's appeal without holding a hearing. It noted that neither the European Convention on Recognition and Enforcement of decisions concerning the custody of children and on restoration of custody of children, nor The 1980 Hague Convention on the Civil Aspects of International Child Abduction were applicable to the present case as until now no decision on the custody of F. had been taken and the applicant's former husband had exercised factual custody over F. since May 1991. The applicant had not actually exercised her custody right at the time of F.'s removal from Austria to Turkey, which, therefore had not been “wrongful” within the meaning of the latter convention.
26. On 6 November 1997 the applicant lodged an extraordinary appeal on points of law (außerordentlicher Revisionsrekurs) with the Supreme Court. She submitted inter alia that she had not voluntarily renounced to the exercise of F.'s custody. Her former husband and his family had hindered her access to F. so that she had only been able to see him in secret when he was attending school. F.'s transfer to Turkey entirely cut off her contact to him. She invoked Articles 8, 13, 14 and Article 5 of Protocol no. 7 of the Convention. She further complained that throughout the proceedings no public hearing had been held and that the decisions had not been pronounced publicly.
27. On 16 April 1998 the Supreme Court rejected the extraordinary appeal on points of law. It noted with reference to Austria's reservation to Article 6 of the Convention that custody proceedings would not necessarily require a public hearing, and that the parties' right to present their case was duly complied with by submitting written statements, which the applicant had been able to do. The decision of the District Court to annul the proceedings, resulting in a shift of jurisdiction from Austria to Turkey, was lawful. The 1980 Hague Convention expressly referred to the actual exercise of custody as a condition for its application. The applicant's submissions that she had been hindered in the actual exercise of her custody were not relevant as the 1980 Hague Convention served the child's and not the parents' interest and the same applied as regards the 1961 The Hague Convention. Under this aspect, an interference with the applicant's rights under Article 8 of the Convention was justified. The decision was served on 29 April 1998.
VIOLATED_ARTICLES: 8


ITEMID: 001-71537
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: DONNAN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Barry Donnan, is a British national who was born on 29 May 1971 and lives in Kilwinning, Scotland
In 1993 the applicant was discharged from the army with post traumatic stress disorder (“PTSD”). Thereafter, he was involved in a legal dispute with the Ministry of Defence. On 28 March 2002 and 4 April 2002 he took part in protests concerning PTSD in Edinburgh. The first protest passed without incident. However, during the second protest he was arrested.
He alleged that he was not informed of the reason for his arrest at the time. The authorities, however, alleged that he was informed that he was being arrested for breach of the peace. According to a subsequent police complaint report there was an independent witness who confirmed the police’s account.
In any case, he was taken to St Leonard’s Police Office, where his particulars were taken, he was fingerprinted, photographed and DNA samples were taken. After approximately forty minutes he was released from custody and a case alleging ‘Breach of the Peace’ was submitted to the Procurator Fiscal. The Procurator Fiscal subsequently decided to discontinue the case.
In December 2002 the applicant was visited at his home by two officers from Strathclyde Police on an unrelated matter. During the visit the applicant had sight of a document he describes as his “criminal record”. On examining this document, he claims that he observed that the case relating to the incident in April in Edinburgh was recorded even though no court proceedings had ever taken place.
Sections 6 and 8 of the Human Rights Act 1998 (“the 1998 Act”) provide (in so far as relevant):
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right...
(3) In this section "public authority" includes-
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament...
8. (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining-
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention...
(6) In this section-
"court" includes a tribunal;
"damages" means damages for an unlawful act of a public authority; and
"unlawful" means unlawful under section 6(1).”
The English courts have relied on section 8 of the 1998 Act to make awards of damages (see R v Enfield London Borough Council ex p Bernard [2003] HRLR 4).


ITEMID: 001-103228
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF MESHCHERYAKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: Anatoly Kovler;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1955 and lives in Tula.
5. On 1 November 2000 the applicant brought civil proceedings claiming damages from the regional police department.
6. The hearings scheduled at the Tsentralniy District Court of Tula (“the District Court”) for 17 January and 15 March 2001 did not take place as the judge was involved in different proceedings. The applicant also chose to amend his claims which required their communication to the respondent.
7. The hearing of 21 June 2001 was adjourned at the respondent’s request to collect certain evidence.
8. By judgment of 28 June 2001, the District Court awarded the applicant 249,292 Russian roubles (RUR) against the police department. The respondent appealed.
9. On 13 November 2001 the Tula Regional Court (“the Regional Court”) decided to postpone examination of the appeal pending the outcome of an inquiry initiated by the Supreme Court of Russia with the Constitutional Court of Russia concerning compliance of certain legal provisions with the Constitution.
10. Following the adoption of a judgment by the Constitutional Court on 19 June 2002, on 13 August 2002 the Regional Court resumed the appeal proceedings.
11. The appeal hearing of 19 September 2002 did not take place due to the illness of the respondent’s representative.
12. On 17 October 2002 the Regional Court examined the appeal, set the judgment aside and ordered re-examination of the case.
13. At the hearings of 27 February and 15 April 2003 the applicant amended his claims. Both hearings were adjourned to enable the respondent to study the amendments.
14. The hearings of 26 May and 28 August 2003 did not take place due to the respondent’s representative’s involvement in different proceedings and the judge’s illness, respectively.
15. By judgment of 22 September 2003 the District Court awarded the applicant RUR 473,913.33 in respect of unpaid disability allowance for the period from June 1998 to October 2003. The police department was also ordered to pay RUR 14,961.91 per month starting from October 2003 and to adjust that sum on a monthly basis in accordance with the statutory level of minimum wages and the cost of living in the Tula Region.
16. Neither of the parties challenged the judgment, which became final on 3 October 2003. The enforcement proceedings were opened.
17. On 5 December 2003 the police department asked the District Court to fix a new time-limit for lodging an appeal against the judgment of 22 September 2003.
18. On 15 December 2003 the District Court rejected their request. The police department appealed, and the applicant requested that the appeal hearing be postponed due to his illness. Two months later the Regional Court quashed the impugned decision and remitted the matter to the first instance.
19. On 9 March 2004 the District Court granted the request for a new time-limit. The applicant appealed and asked to postpone the appeal hearing due to his counsel’s unavailability. On 27 April 2004 the Regional Court upheld the decision.
20. By an interim decision of 18 May 2004, the District Court stayed enforcement of the judgment of 22 September 2003. After lodging an appeal, the applicant again asked to postpone the appeal hearing due to his counsel’s unavailability.
21. On 6 July 2004 the Regional Court set aside the judgment of 22 September 2003 and the decision to stay the enforcement proceedings. A new hearing was required.
22. On 1 October 2004 the applicant amended his claims.
23. The hearing of 7 October 2004 did not take place due to the judge’s illness.
24. In the meantime the applicant lodged an application for supervisory review of the appeal decision of 6 July 2004. On 11 November 2004 the supervisory instance called up his case and dismissed his application on 5 March 2005.
25. At the hearings of 26 April and 23 May 2005 the applicant again modified his claims. The respondent requested that the latter hearing be adjourned to verify some evidence. The next hearing of 20 June 2005 had also to be adjourned due to another amendment of his claims by the applicant.
26. The respondent’s representative did not appear at the hearings scheduled for 6 and 7 July 2005 due to his involvement in different proceedings.
27. On 11 July 2005 the applicant again changed his claims, following which the hearing was adjourned to collect certain evidence.
28. On 8 September 2005 the applicant amended his claims.
29. The hearings of 13 September and 12 October 2005 did not take place as the judge was first ill and then involved in different proceedings.
30. On 24 October and 16 November 2005 the court granted the parties’ motions for obtaining of certain evidence and sent relevant inquiries.
31. At the next hearing that took place on 8 February 2006 the applicant again modified his claims.
32. On 3 March 2006 the District Court awarded the applicant a lump sum of RUR 381,251.97 and ordered the police department to pay him RUR 14,358.03 per month starting from 1 March 2006. The judgment was upheld on appeal by the Regional Court on 29 June 2006 and enforced on 4 May 2007.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22155
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: HERTEL v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Hans Ulrich Hertel, is a Swiss national with a degree in technical sciences from the Zurich Federal Institute of Technology. He is retired and lives in Wattenwil in the Canton of Bern. Before the Court he is represented by Mr R. Schaller , a lawyer practising in Geneva.
The applicant carried out research, together with a technical adviser, at the Lausanne Federal Institute of Technology, on the effects on human beings of the consumption of food prepared in microwave ovens. In a research paper dated June 1991, entitled “Comparative study of the effects on human beings of food prepared by conventional means and in microwave ovens”, it was concluded:
“The measurable effects on human beings of food treated with microwaves, as opposed to food not so treated, include changes in the blood which appear to indicate the initial stage of a pathological process such as occurs at the start of a cancerous condition.”
Subsequently, in issue no. 19 (January-March 1992) of the quarterly Journal Franz Weber, in which the applicant was mentioned as a member of the editorial staff, there appeared an article by René d’Ombresson entitled “Microwave ovens: a health hazard. Irrefutable scientific evidence”. The cover page depicted a Reaper (Sensemann) holding out one hand towards a microwave oven. The introductory paragraphs to the article stated, inter alia:
“Off to the scrap heap and the rubbish dumps with microwave ovens! The treatment to which they subject food is so pernicious that it causes a change in the blood of whoever eats it and this leads to anaemia and a precancerous condition. These are the findings of a rigorous study carried out by a professor of the EPLF [Lausanne Federal Institute of Technology] and an independent researcher, who were determined to answer once and for all the crucial question: are microwave ovens harmful or not? Here is a simplified summary of the study, followed by the study itself for those who are not put off by figures and scientific demonstrations. We were anxious to publish both these, albeit at the risk of repetition, so that the findings should be available to the widest possible public.”
On 7 August 1992 the Swiss Association of Manufacturers and Suppliers of Household Electrical Appliances (MHEA) applied to the Commercial Court (Handelsgericht) of the Canton of Bern for an injunction under the Unfair Competition Act (UCA; Bundesgesetz über den unlauteren Wettbewerb), seeking to have Mr Hertel prohibited, on pain of penalties, from stating that food prepared in microwave ovens is a danger to health and leads to changes in the blood of those who consume it, that it causes a pathological disorder and that it presents a pattern that could be seen as the beginning of carcinogenic process. In a judgment of 19 March 1993 the Commercial Court allowed the application. The injunction was confirmed by the Federal Court (Bundesgericht) in a judgment dated 25 February 1994 which concluded:
“There can be no question of the UCA having been applied in breach of the Federal Constitution or the European Convention. Statutes must, in particular, define fundamental rights and other, conflicting duties of the State so that these two concerns of constitutional law may be taken into consideration to the greatest possible extent ... The smooth operation of competition and economic freedom, freedom of expression, scientific freedom and freedom of the press must be guaranteed as well as possible, but at the same time limited so that the various constitutional objectives may be reconciled in practice. ... Anyone claiming scientific freedom is therefore wholly free to expound his knowledge in the academic sphere but, where competition is concerned, he may not claim to have the truth on his side where the opinion he is putting forward is disputed. An opinion which has not been confirmed scientifically must in particular not be misused as a disguised form of positive or negative advertising of one’s own work or the work of others. In the present case, that is all the more true as the Commercial Court expressly left the applicant free to base his proposition on new scientific findings. The appeal must therefore be dismissed...”
On 13 September 1994 the applicant lodged with the European Commission of Human Rights application no. 25181/94 in which he complained that the ban imposed on him by the Swiss courts under the UCA had infringed Article 10 of the Convention. He also raised complaints under Articles 6 § 1 and 8 of the Convention. On 27 November 1996, the Commission declared the case admissible. In its report of 9 April 1997 it found that there had been a breach of Article 10 and that no separate issue arose under Article 6 § 1 or Article 8 of the Convention.
The case was referred to the Court which, in its judgment of 25 August 1998, considered that the measure was “prescribed by law” and pursued a legitimate aim as required by Article 10 § 2 of the Convention. In respect of the question whether the measure was “necessary in a democratic society” within the meaning of this provision, the Court held, inter alia:
“48. The Court observes that the applicant did no more than send a copy of his research paper to the Journal Franz Weber. He had nothing to do with the editing of issue no. 19 of that periodical or in the choice of its illustration, of which he became aware only after its publication. That is clear from Mr Weber’s statement of 14 April 1992 (see paragraph 18 above) and was not called into question by either the Commercial Court of the Canton of Bern or by the Federal Court. Both courts held that the applicant’s liability derived from the fact that in sending his paper to the Journal Franz Weber he had accepted its being used in a simplified and exaggerated manner – as, given the periodical concerned, it had been foreseeable that it would be – and that, consequently, he had identified himself with the article in issue ...
As regards the content of issue no. 19 relating to microwave ovens, the applicant was thus neither author nor co-author of the title on the cover page ..., the editorial column (attributed to Franz Weber ...) or of pages 3 to 10 (attributed to René d’Ombresson ...). The only parts that can be attributed to him are, with the exception of the titles and sub-titles appearing on them, pages 5 to 10, which contain an extract of the research paper ... The Court notes that nowhere it is expressly proposed that microwave ovens be destroyed or boycotted or their use banned and that the applicant did not repeat the statements he made in 1989 and which had been published in issue no. 8 (April/May/June 1989) of the Journal Franz Weber. In addition and above all, the applicant’s views on the harmful effects on human health of the consumption of food prepared in microwave ovens are expressed in far less categorical terms than the Government intimated; that is to be seen in particular from the repeated use of the conditional mood and the choice of non-affirmative expressions. In that regard, the last lines from the extract, in which the applicant’s conclusions from his experiments are summarised, are particularly striking. Thus, although it is stated that the results obtained “show changes which bear witness to pathogenic disorders”, as regards any cancerous effects it is explained that the results present a pattern which “might” correspond to the beginning of a cancerous development and which “deserves attention”; likewise, there is no assertion that the consumption of irradiated food is harmful for man as a result of the induction of indirect radiation through food, but merely a suggestion that it “might” be ...
...
50. It will be seen from the foregoing that Mr Hertel played no part in the choice of the illustration for issue no. 19 of the Journal Franz Weber, that those statements that were definitely attributable to him were on the whole qualified and that there is nothing to suggest that they had any substantial impact on the interests of the members of the MHEA. In spite of all that, the Swiss courts prohibited the applicant from stating that food prepared in microwave ovens was a danger to health and led to changes in the blood of those consuming it that indicated a pathological disorder and presented a pattern that could be seen as the beginning of a carcinogenic process, and from using the image of death in association with microwave ovens.
The Court cannot help but note a disparity between that measure and the behaviour it was intended to rectify. That disparity creates an impression of imbalance that is materialised by the scope of the injunction in question. In that regard, although it is true that the injunction applies only to specific statements, it nonetheless remains the case that those statements related to the very substance of the applicant’s views. The effect of the injunction was thus partly to censor the applicant’s work and substantially to reduce his ability to put forward in public views which have their place in a public debate whose existence cannot be denied. It matters little that his opinion is a minority one and may appear to be devoid of merit since, in a sphere in which it is unlikely that any certainty exists, it would be particularly unreasonable to restrict freedom of expression only to generally accepted ideas.
The fact that the Swiss courts expressly reserved Mr Hertel’s freedom to pursue his research does not in any way alter that finding. As to presenting the results outside the “economic sphere”, it is not transparently obvious from the courts’ decisions that he was given such a possibility; it may be that the wide scope of the UCA would prevent those reservations being seen as providing a significant reduction in the extent of the interference in question.
Furthermore, if the applicant fails to comply with the injunction he runs the risk of a penalty, which could include imprisonment.
51. In the light of the foregoing, the measure in issue cannot be considered as “necessary” “in a democratic society”. Consequently, there has been a violation of Article 10” (see Reports of Judgments and Decisions 1998-VI, pp. 2330-2332).
The Court considered that it was unnecessary to examine the complaints under Articles 6 § 1 and 8 of the Convention. It also held that the Swiss Government was to pay to the applicant CHF 40,000 for costs and expenses.
On 20 October 1998 the applicant applied to the Federal Court for the reopening and annulment of its judgment of 25 February 1994 and the reimbursement by the MHEA of his court and legal costs. In its judgment of 2 March 1999 (served on 1 April 1999) the Federal Court held as follows:
“2. The appellant relied on Article 139a of the Federal Judiciary Act (FJA; Bundesgesetz über die Organisation der Bundesrechtspflege). According to this provision, review of a judgment of the Federal Court or a lower court is admissible if the European Court of Human Rights or the Committee of Ministers of the Council of Europe has found a breach of the European Convention on Human Rights and redress is possible only through such review. The first requirement has clearly been met. The second remains to be considered. It may be regarded as satisfied if and insofar as the judgment of the European Court and the compensation awarded are not sufficient to make good the situation in relation to the Convention (cf. Federal Court Judgment [FCJ] 123 I 283, § 3 p. 286 et seq.).
3. In pursuance of Article 50 of the Convention, the European Court awarded the appellant compensation of CHF 40,000 for the costs incurred in proceedings before the Commercial Court, the Federal Court, the Commission of Human Rights and the European Court. No scope remains for further compensation claims by the applicant in relation to the same proceedings (cf FCJ 123 I 283, § 3b/bb p. 287 et seq.). On the contrary, the Court’s award constitutes sufficient compensation. Accordingly, the grounds provided for in Article 139a clearly do not apply. The applicant’s claims for reimbursement of court costs, lawyer’s fees and counsel’s costs in previous proceedings must be rejected.
4. However, the applicant primarily seeks the lifting of the restrictions imposed on him. The question here, too, is whether and to what extent, with regard to compensation for the breach of the Convention, a modification of the Federal Court’s judgment of 25 February 1994 is necessary.
a) According to Article 10 of the Convention, everyone is entitled to freedom of expression. This right may be restricted only to the extent that it is prescribed by law, serves a legitimate purpose and is necessary in a democratic society (Article 10 § 2 of the Convention). The European Court regards the UCA (...) as a sufficient statutory basis for the restriction imposed on the applicant. It finds also that there is no doubt that the restriction is intended to protect the rights of others and so serves a legitimate purpose. But it concludes that the applicant’s freedom of expression has been restricted to a greater extent than is necessary in a democratic society. In this connection, the Court deals thoroughly with the content of Journal Franz Weber No. 19. It finds that the applicant is responsible, as author or co-author, neither for the title on the front page, nor for Franz Weber’s editorial column, nor René d’Ombresson’s article on pages 3-10. Nor did the applicant participate in the choice of illustrations. Only the extract from the research paper on pages 5-10 could be attributed to him, not including the title and sub-titles. Nowhere in this extract was it expressly suggested that microwave ovens should be banned, destroyed or boycotted. In particular, the applicant’s view that the consumption of food prepared in microwave ovens is harmful to human health was much more moderately expressed than the Swiss authorities assumed. This impression was conveyed by the repeated use of the subjunctive and the choice of non-affirmative language. In this respect, the last lines of the extract, drawing conclusions, were particularly enlightening: the tests showed “changes which bore witness to pathogenic disorders”; but they showed a pattern which “might” reflect the beginning of a carcinogenic process and “deserved attention”. Similarly, it was not stated that the consumption of irradiated food was harmful to human beings by subjecting them to indirect radiation, but merely surmised that this “might” be the case. Nor did the European Court find any evidence that the applicant’s statements in Journal Franz Weber No. 19 had substantially impaired the interests of the respondent’s members.
Having regard to these circumstances, the European Court concludes that the extent of the restrictions imposed by the Swiss courts is disproportionate to the behaviour they were intended to rectify. The restrictions had the effect of partially censoring the applicant’s work and severely limiting his opportunity for publicly defending a point of view which had its place in the current debate. The fact that it was a minority view and apparently lacking in any rational foundation mattered little. In an area where there was no certain proof, it was particularly exceptionable to restrict freedom of expression to the reproduction of generally accepted ideas.
b) The judgment of the European Court of Human Rights may afford the applicant satisfaction and, through the award of CHF 40,000, financial compensation for the cost of the proceedings. But it does not remove the restrictions imposed on the applicant by the Commercial Court and confirmed by the Federal Court in its judgment of 25 February 1994. These restrictions may be upheld only within the bounds of necessity as defined by the European Court. Since those restrictions may be lifted or limited only by means of an appeal to the Federal Court, the requirement of Article 139a FJA is met.
However, it remains to be determined in what respect and to what extent the restrictions are to be limited in order to comply with Article 10 of the Convention. In this connection, it must first be noted that the European Court found the restrictions disproportionate only insofar as they were intended as a response to the research paper published in Journal Franz Weber No. 19, which paper the Court found sufficiently moderate and whose impact on the respondent’s members it found insufficiently proved. In its appraisal of the actual circumstances, the European Court also took the view that only the text of the research paper could be attributed to the applicant and that he could not be held responsible for the titles, sub-titles and other texts by other authors which the periodical contained, nor for the illustrations. It follows that to prohibit the applicant from publishing texts of comparable moderation to the aforementioned research paper, even on competition-related grounds, would violate Article 10 of the Convention.
On the other hand, according to the European Court’s view of the law, it may be assumed that prohibiting the applicant from making competition-oriented statements alleging scientifically proven health-impairing effects of food prepared in microwave ovens, without any mention of current differences of opinion, can only be reconciled with Article 10 of the Convention if there are tangible signs that such statements will be made and are of a nature substantially to impair the competitive position of the respondent’s members (cf. FCJ 116 II 357, § 2a p. 359, with references). However, these requirements are satisfied: In its judgment of 19 March 1993, the Commercial Court found as to the facts that the applicant had never disavowed the publication in Journal Franz Weber No. 19 but had simply stated in court that he did not agree 100% with René d’Ombresson’s introduction and conclusions; he had said that he liked the image of the Reaper; he stood by his conclusions and intended to continue seeking to have them debated in the mass media; behind his scientific attitude was an ideological one; at the trial he had maintained his earlier statements and declared: “These microwave products cause cancer, there is now no longer any doubt about that” and “I will continue to go my scientific way”. These are concrete indications that there is reason to fear that the applicant will make statements contrary to fair competition, disseminating alleged scientifically proven findings of health impairment by microwave ovens; in view of the applicant’s professed liking for the image of the Reaper, there is also a danger of this or some other death symbol being used to illustrate such statements. It is self-evident that such statements, if aimed at wider sections of the population, are of a nature to substantially impair the competitive position of the respondent’s members. This is all the more true if the statements are further illustrated by death symbols. Under Article 9 § 1.a UCA, the respondent is entitled to be protected by appropriate restrictions against unlawful impairment of competition.
c) A complete lifting of the restrictions imposed on the applicant is therefore neither necessary nor appropriate. It must be made clear that the applicant is prohibited only from making statements directed at the general public in which health-impairing effects of microwaved food are presented, without mention of current differences of opinion, as scientifically proven. The prohibition of the use in publications or public lectures of the Reaper or any similar death symbol must be maintained on the basis of the detailed grounds stated in the judgment of 25 February 1994. Lastly, the basis for the respondent’s claim lies not in an actual violation but in the threat of violations (Article 9 § 1.a UCA). That such a threat exists, having regard to the applicant’s behaviour and statements, is beyond doubt.
The applicant shall not otherwise be prevented from taking part in the current debate on the health effects of food prepared in microwave ovens. He is free to express his views, provided that he does not do so in statements addressed to the general public in such a way as to convey the false impression that they reflect scientifically proven findings. It is not a question of censoring the applicant’s work, but of preventing inaccurate, misleading or unnecessarily damaging and therefore unfair statements of a nature to influence competition and to impair the competitive position of the respondent’s members (Articles 2 and 3 (a) UCA).
5. The applicant’s appeal is only partially successful. He achieves clarification of the scope of the restrictions imposed by the Commercial Court and confirmed by the Federal Court in its judgment of 25 February 1994, but is unsuccessful both in his application for rejection of the complaint and in his claim for reimbursement of court and lawyer’s fees from the previous proceedings. This outcome justifies a proportional apportionment of court fees and parties’ costs arising from the appeal proceedings ... Of the court fee of CHF 5,000, CHF 3,500 is charged to the applicant and CHF 1,500 to the respondent; the applicant shall also be required to pay the respondent party compensation of CHF 2,500.
The material amendment of the judgment on the facts of 25 February 1994, constituting partial acceptance of the appeal, is confined to clarification of the scope of the restrictions imposed on the applicant. The respondent’s entitlement to protection is unaffected. That being so, there is no justification for re-apportioning court fees and party costs from the Commercial Court proceedings and the appeal proceedings before the Federal Court, especially as the European Court of Human Rights has already awarded the applicant compensation under Article 50 of the Convention for costs incurred in those proceedings (cf para. 3 above).
The Federal Court therefore finds as follows:
1. The application for review is partially accepted, § 1 of the Federal Court judgment of 25 February 1994 is annulled and replaced as follows:
“1. The appeal is partially allowed, insofar as it is admissible, and § 1 of the judgment of 19 March 1993 of Bern Commercial Court is amended as follows:
1. The defendant is prohibited, subject to the penalties provided for in Art 292 of the Code of Criminal Procedure and Art 403 of the Code of Civil Procedure (imprisonment or fine up to CHF 5,000; detention or, in serious cases, imprisonment of up to one year), from making statements addressed to the general public alleging that it is scientifically proven that food prepared in microwave ovens, without reference to current differences of opinion (verboten, in Verlautbarungen, die an weitere Bevölkerungskreise gerichtet sind, ohne Hinweis auf den herrschenden Meinungsstreit als wissenschaftlich gesichert darzustellen, dass im Mikrowellenherd zubereitete Speisen …), is harmful to health and causes changes in the blood of persons who consume it, indicating a pathological disorder and showing a pattern that could be seen as the beginning of a carcinogenic process.
The remainder of the Commercial Court’s judgment is confirmed.”
2. The further applications for review are rejected.
3. The court fee of CHF 5,000 is apportioned in the amounts of CHF 3,500 to the applicant and CHF 1,500 to the respondent.
4. The applicant shall pay the respondent CHF 2,500 in costs.
5. This judgment shall be communicated in writing to the parties and to the Bern Cantonal Commercial Court.”
On 2 October 2000 the Committee of Ministers adopted at the 721st meeting of the Ministers’ Deputies the following resolution:
“Resolution ResDH(2000)122 concerning the judgment of the European Court of Human Rights of 25 August 1998 in the case of Hertel against Switzerland
The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),
Having regard to the judgment of the European Court of Human Rights in the Hertel case delivered on 25 August 1998 and transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application (No. 25181/94) against Switzerland, lodged with the European Commission of Human Rights on 13 September 1994 under former Article 25 of the Convention by Mr Hans Ulrich Hertel, a Swiss national, and that the Commission declared admissible the applicant’s complaints that Articles 10, 8 and 6, paragraph 1, of the Convention had been breached on account of the fact that he had been prohibited from publishing his research results about the hazardous effects of microwave ovens on human health;
Recalling that the case was brought before the Court by the applicant on 29 May 1997 and thereafter by the Commission and the Government of the Switzerland on 3 June and 15 July 1997 respectively;
Whereas in its judgment of 25 August 1998 the Court:
- held, by six votes to three, that there had been a violation of Article 10 of the Convention;
- held, unanimously, that it was unnecessary to consider the complaints under Article 6, paragraph 1 and Article 8 of the Convention;
- held, by eight votes to one, that the Government of the respondent State was to pay the applicant, within three months, 40 000 Swiss francs in respect of costs and expenses and that simple interest at an annual rate of 5% would be payable on this sum from the expiry of the above-mentioned three months until settlement;
- dismissed, unanimously, the remainder of the claim for just satisfaction;
Having regard to the Rules adopted by the Committee of Ministers concerning the application of former Article 54 of the Convention;
Having invited the Government of the respondent State to inform it of the measures which had been taken in consequence of the judgment of 25 August 1998, having regard to Switzerland’s obligation under Article 53 of the Convention to abide by it;
Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent State gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;
Having satisfied itself that on 20 October 1998, within the time-limit set, the Government of the respondent State paid the applicant the sum provided for in the judgment of 25 August 1998;
Having noted that the applicant has brought before the European Court of Human Rights a new application (No. 53440/99) concerning the restrictions still applicable after the retrial judgment (arrêt en révision) by the Federal Court of 2 March 1999 (see notably the appended information submitted by the Government) and that the Court remains competent to assess the compatibility with the Convention of such restrictions,
Considers that it is not necessary, in the circumstances of the present case, that the Committee of Ministers itself continue to examine this last issue, in the context of the present execution control procedure,
Declares, in the light of the above considerations and having taken note of the information supplied by the Government of the Switzerland, that it has exercised its functions under former Article 54 of the Convention in this case.
Appendix to Resolution ResDH(2000)122
Information provided by the Government of Switzerland during the examination of the Hertel case by the Committee of Ministers
The Hertel judgment of 25 August 1998 was brought to the attention of the Federal Court and excerpts were published notably in the « Journal des tribunaux – Droit européen » (No. 52, October 1998, pages 188-190).
In order to erase the consequences of the violation found by the European Court of Human Rights, the applicant filed an application for retrial before the Swiss Federal Court in conformity with Article 139.a.1 of the Swiss Federal law on judicial organisation, providing for review of judicial proceedings in order to give effect to judgments from the Strasbourg Court. In its judgment of 2 March 1999, the Federal Court took note of the violation of the applicant’s freedom of expression found by the European Court of Human Rights and, accordingly, modified the challenged decision by clarifying its content and softening the scope of the restrictions imposed on Mr Hertel.
As a result, it has now been clarified that the restrictions to the applicant’s freedom to express himself on the harmful effects of microwave ovens only apply in case the applicant would address a large public, stating that the harmful effects of microwave ovens on human health are a scientifically proven fact without referring to the controversial nature of the issue. The Government of Switzerland considers that the Federal Court judgment has remedied the violation of Article 10, as regards the applicant’s situation.
The Government also considers that these measures will prevent in the future the risk of new violations similar to the one found in this case and that Switzerland has thus fulfilled its obligations under Article 53 in this case.”
The Unfair Competition Act (UCA) states in Sections 1, 2 and 3(a) as follows:
Section 1
“This Act is intended to guarantee, in the interests of all the parties concerned, fair, undistorted competition.”
Section 2
“Any conduct [Verhalten] or commercial practice [Geschäftsgebaren] shall be unfair and illegal if it is deceptive or in any other way offends the principle of good faith and if it affects relations between competitors or between suppliers and customers.”
Section 3
“A person acts unfairly if, in particular,
(a) he denigrates others or the goods, work, services, prices or business of others by making inaccurate, misleading or unnecessarily wounding statements;
...”
Articles 136 et seq. of the Federal Judiciary Act (FJA) concern, inter alia, the reopening of proceedings. Section 139a, entitled “Breach of the European Convention on Human Rights” states as follows:
“1. The reopening of a decision of the Federal Court or of a lower instance shall be admissible if the European Court of Human Rights or the Committee of Ministers of the Council of Europe have upheld an individual application on account of a breach of the Convention of 4.11.1950 for the Protection of Human Rights and Fundamental Freedoms and its Protocols, and if compensation is only possible by means of reopening.
2. If the Federal Court determines that reopening is called for, though a lower instance is competent, it shall refer to the lower instance to reopen proceedings on the matter.
3. The cantonal lower instance shall then also decide on the request for reopening if cantonal law does not envisage such a ground for the reopening of proceedings.”


ITEMID: 001-76708
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SCHWARZENBERGER v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal)
JUDGES: Peer Lorenzen
TEXT: 5. The applicant was born in 1957 and is at present serving a prison sentence in Bruchsal in Germany.
6. On 23 April 1996 the applicant and his suspected accomplice D. were arrested in Cadiz in Spain on suspicion of having murdered Mrs D. On 6 May 1996 the Heilbronn District Court (Amtsgericht) issued an arrest warrant against the applicant. As the applicant objected to being extradited to Germany, he remained in detention in Spain.
7. On 5 July 1996 D. – the victim’s adopted son – was extradited to Germany.
8. On 8 April 1997 a chamber of the Heilbronn Regional Court (Landgericht), presided by judge V. and also comprising judges W. and B., convicted D. of murder and of having committed robbery followed by death constituting one single offence (Mord in Tateinheit mit Raub mit Todesfolge), and of attempted murder. D. was found guilty of having murdered his adoptive mother Mrs D., of having attempted to murder his adoptive father and of having robbed his adoptive parents’ belongings. According to the findings of the Regional Court, which were primarily based on the statements and admissions of the accused, these offences had been committed jointly with the applicant.
9. The passages of the judgment establishing the facts of the case which refer to the applicant read as follows:
“Schwarzenberger, who was primarily interested in the loot, having been at first indifferent to the murder ..., consented to drive to Germany with the accused...On the ground floor, Schwarzenberger looked for an appropriate weapon. He removed the loose but stable handle from a big axe and handed it to the accused. Having in the meantime agreed to the murder, he did not want to run any risks. The accused could see that Schwarzenberger put a hammer weighing 200 grams into his pocket in order to be prepared for any eventualities...As Schwarzenberger and the accused feared the failure of their endeavour, the former approached Mrs D., kept her mouth shut with a pillow and inflicted severe hammer blows on her head in order to kill her. The accused was aware of this because he knew that a human life counted for little with Schwarzenberger...The accused credibly submitted to the court that he had informed Schwarzenberger about his plan to murder his adoptive father, which left the latter indifferent because he was primarily interested in the loot. The chamber deduces from this submission that the accused knew that a human life counted for little with Schwarzenberger...Because of the blows inflicted by the accused, the chamber is convinced that the accused consented to Schwarzenberger’s brutal actions, even if it meant her death, in order to reach his real aim to kill his adoptive father...Because of the many heavy hammer blows on the victim’s head, the accused was aware that Schwarzenberger wanted to kill the adoptive mother of the accused, at least in order to gain the prospected loot...By following Schwarzenberger’s request to keep Mrs D. at bay by dealing her a blow, the accused expressed his consent to Schwarzenberger’s massive use of force and was willing to accept the action...Cooperating with Schwarzenberger, the accused wanted to slay his sleeping victim, thus perfidiously exploiting his unsuspecting victim’s defencelessness. Despite the accused’s intention to commit the crime on his own, Schwarzenberger was so intensely involved in the planning and in the choice of a weapon that his actions did not merely constitute supportive measures, but an autonomous part of the action, the more so as the dominant Schwarzenberger pursued his own interest in the deed: to have access to the loot.”
10. The Regional Court further noted that this assessment of the facts followed essentially the accused’s own submissions, who tried to place all responsibility on the applicant. Nevertheless, the Regional Court found him guilty himself. It further considered whether it was necessary to hear the applicant – who remained at the time in detention in Spain – as a witness in the proceedings against D. Having regard to the fact that the applicant had denied any involvement in the crime, the chamber did not expect that the applicant’s testimony would yield any further information.
11. On 22 April 1997 the applicant was extradited to Germany.
12. On 12 February 1999 the main hearing was opened before a chamber of the Heilbronn Regional Court presided by judge W. and including judge B.; both had already sat in the chamber which had previously tried D.
13. At the opening of the trial, the applicant objected to the participation of judges W. and B. on the ground of possible bias (Ablehnung wegen Besorgnis der Befangenheit). He argued that the passages in the court’s judgment against D., seen from his viewpoint, but also objectively, were susceptible of raising doubts about the impartiality of these judges. On being informed that a chamber presided by judge V. – who had presided over the trial against D. – would decide about the objection, the applicant raised an objection against V. on the same grounds.
14. On 12 February 1999 judges W. and B. submitted their respective official statements (dienstliche Äusserung) on the objection. They pointed out that it would have been more satisfactory to try both D. and the applicant in joint proceedings, as the same facts were concerned. However, this had not been possible as D. had already been extradited on 5 July 1996 and it could not be foreseen at the time when the extradition proceedings relating to the applicant would be terminated. Having regard to the necessity to expedite proceedings, the chamber found it appropriate to consider both cases in separate proceedings. During the main proceedings against D., the applicant had not been available to the court. The establishment of the facts of the case in the judgment against D. were mainly founded on D.’s own submissions. In order to assess the extent of D.’s guilt, it had been essential to cast light on the applicant’s involvement. As the chamber could only base its assessment on D.’s own submissions, they had been aware of the fact that their sources of knowledge were limited and that an assessment of the applicant’s possible involvement had to be left to the main proceedings against the applicant. Both judges emphasised that they had neither reached a final opinion nor adopted an inner attitude which could negatively influence their impartiality towards the applicant.
15. On 16 February 1999 the substitute chamber of the Heilbronn Regional Court rejected the applicant’s objection against the presiding judge V. It found that the simple fact that a judge had been previously dealing with the same facts in a case against another, subsequently convicted person did not suffice to justify an objection against that judge because an accused person would reasonably presume that a judge based his judgment exclusively on the outcome of the public hearing in the specific case. According to the court, an objection would have been justified only if the judgment of 8 April 1997 had contained unjustified and degrading value judgments on the applicant. The court found this not to be the case, because it was clear from the judgment of 8 April 1997 that the passages referring to the applicant were exclusively based on D.’s submissions, as the applicant himself, having objected to his extradition from Spain, had at the time not been available to the court.
16. On 17 February 1999 the substitute chamber dismissed the applicant’s objection against judges W. and B. for the same reasons.
17. On 10 December 1999 the Heilbronn Regional Court convicted the applicant, who had denied any involvement in the crimes, of murder and of having committed robbery followed by death constituting one single offence and sentenced him to life imprisonment. According to the Regional Court’s findings, the applicant had killed Mrs D. in order to cover up the robbery; while D. had approved of the applicant’s actions. The Regional Court based its judgment mainly on the applicant’s own statements given both during preliminary investigations and during the main hearing, on incriminating testimony given by D., which the chamber followed only to a certain extent, and on corroborative evidence such as the analysis of traces found at the scene of the crime.
18. The applicant subsequently appealed on points of law, arguing that judges B. and W. should have been excluded from the trial. On 7 March 2001 the Federal Court of Justice (Bundesgerichtshof) rejected the appeal as unfounded, following a statement of the Federal Public Prosecutor (Generalbundesanwalt) which confirmed the Regional Court’s reasoning on the issue of the impartiality of the judges.
19. On 22 May 2001 the applicant, who was represented by counsel, lodged a constitutional complaint in which he gave a complete account of the proceedings before the lower courts and alleged that the impugned decisions violated his right to a fair trial as guaranteed by the German Basic Law and by the Convention.
20. The relevant passages of the complaint read as follows:
“Article 101 § 1 in conjunction with Articles 103 and 19 § 4 of the German Basic Law, and Article 6 § 1 of the Convention, guarantee that criminal cases shall be heard in a fair trial, without arbitrariness and, in particular, by an unbiased and impartial judge. According to section 24 § 2 of the Code of Criminal Procedure, a judge can be challenged for fear of bias if there is a justifiable reason to doubt his impartiality. This is the case if the accused, taking into account the facts known to him, has reason to believe that a judge’s attitude towards him might negatively influence his impartiality and neutrality. In general, this fear cannot be based on the mere fact that a judge has previously convicted another person who participated in the same crime and, on that occasion, ruled on the involvement of the accused. However, a different approach is urgently needed if a judge’s behaviour in the previous proceedings (or, similarly, his reasoning in a previous judgment) justifies the fear of bias. In particular, negative value judgments about the accused’s personality, or about his actions before or after the crime, may induce the accused reasonably to fear that a judge might not be impartial towards him in the new proceedings. It has been said of the person accused in the present case, who has denied his involvement in the crime, that a human life counted for little to him, that he acted brutally and used massive violence, and that he, as a dominant actor, made an autonomous contribution to the attempted murder of the adoptive father. On the basis of such value judgments, the accused does indeed have reason to fear that the judges, who were deciding for a second time on the same crime, whether consciously or unconsciously, would maintain their previous opinions ... . Comparing this case with (one) published in volume 24 of the collection of the decisions of the Federal Court of Justice, it is clear that the applicant has been exposed to a high degree of value judgments on his person and his actions. If one were to apply the ruling of the Federal Court of Justice to the present case, there would no longer be any possibility of removing a judge for fear of bias due to the decision in a previous case ... . Such a result is unacceptable for the person concerned, as has been sufficiently demonstrated. Article 6 of the Convention (impartial, unbiased judge and fair trial) has been violated for the same reasons.”
21. On 20 June 2001 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s complaint for adjudication.
22. The relevant passages of that court’s decision read as follows:
“The constitutional complaint is not accepted for adjudication because there are no grounds therefor. The constitutional complaint has no prospect of success, because it is inadmissible. Its reasoning does not meet the minimum requirements found in section 23 § 1, second sentence, and section 92 of the Rules of Procedure of the Federal Constitutional Court. The applicant has to describe the alleged violation of a Basic Right and the proceedings leading to its violation in a substantiated and conclusive way (cf. the decisions of the Federal Constitutional Court published in the official collection BVerfGE 40, p. 141, [at p. 156]; 49, p. 24, [at p. 47 et seq.]). The allegation that the Regional Court rejected the objection against the competent judges on erroneous grounds does not meet these requirements, because not every rejection of an objection which is erroneous with respect to ordinary laws means that there is at the same time a violation of Article 101 § 1 of the Basic Law. According to the consistent case-law of the Federal Constitutional Court, a violation of the right to a decision rendered by the legally competent judge (Recht auf den gesetzlichen Richter) is only possible if the decision of the court on the objection is based on arbitrary considerations (cf. BVerfGE 11, p. 1, [at p. 6]; 29, p. 45, [at p. 48 et seq.]; 31, p. 145, [164]), or if the court has fundamentally misjudged the meaning and implications of Article 101 § 1, second sentence (cf. BVerfGE 82, 286, [299], 87, 282, [285]). Accordingly, a mere allegation that the objections have been rejected in violation of the ordinary legal provision of section 24 § 2 of the Code of Criminal Procedure will not suffice to substantiate an alleged violation of the constitution.“
23. The relevant provisions of the Code of Criminal Procedure read as follows:
Section 24 § 2
“An objection can be raised on the ground of fear of bias if there is a reason which may justify doubts on the impartiality of a judge.”
Section 337 § 1
“An appeal on points of law can only be based on the allegation that the judgment was based on a violation of the law.”
Section 338
“A judgment shall always be considered to be based on a violation of the law:
...3. if a professional judge or lay judge participated in the drafting of a judgment after he has been challenged for bias and if the motion for challenge was either declared to be well-founded or erroneously rejected...”
24. Article 101, § 1, second sentence, of the German Basic Law (Grundgesetz) provides that no one shall be deprived of his right to a decision rendered by the legally competent judge (gesetzlicher Richter). In its case-law, the Federal Constitutional Court has consistently dealt with the issue of whether a judge must be excluded for suspicion of bias as a problem of the right to a decision rendered by the legally competent judge.
25. The relevant provisions of the Rules of Procedure of the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz) read as follows:
Section 23 § 1
“Applications for the institution of proceedings must be submitted in writing to the Federal Constitutional Court. The reasons must be stated; the requisite evidence must be specified.”
Section 92
“The reasons for the complaint shall specify the allegedly violated right and the act or omission of the organ or authority by which the complainant claims to have been harmed.”
26. According to the consistent case-law of the Federal Constitutional Court (cf. the decision published in the official collection BVerfGE 67, p. 90, [at p. 94]), the applicant must not only identify the allegedly violated right, but also describe the proceedings which led to this violation in a substantiated and conclusive way (schlüssig und substantiiert), in order to comply with the above-mentioned provisions.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23928
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: Krone Verlag GESELLSCHAFT M.B.H. and Gerhard WALTER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The first applicant Krone Verlag Gesellschaft m.b.H., is the owner and publisher of the daily newspaper “Neue Kronen Zeitung” with its seat in Vienna. The second applicant, Gerhard Walter, is an Austrian national, who was born in 1963 and lives in Vienna. He is a journalist working for the first applicant.
The facts of the case, as submitted by the applicants, may be summarised as follows.
Between 1993 and 1997 a series of letter bombs which severely injured some of the addresses was sent to politicians and other persons of public interest in Austria.
The bombs were accompanied by confessing letters signed “Bajuwarische Befreiungsarmee” (Bavarian [Germanic tribe tracing back to the 5th and 6th century] Liberation Army).
After the first assaults, an expert on criminal psychology drew up a psychological profile of the author(s) of these acts and concluded that they were committed by a single person. According to another hypothesis the series of bombs had to be attributed to a group of right wing extremists.
From April 1995 until January 1997 Mr Einem was Federal Minister for the Interior (Bundesminister für Inneres).
The author of the assaults, Franz Fuchs, a person with no particular connection to any political grouping, was arrested in 1997.
In October 1997 sporadic critics in the press and by some politicians reproached Mr Einem with having neglected the theory of a single author. A politician of the FPÖ (Austrian Freedom Party) accused Mr Einem of having suppressed the single author profile because it did not correspond with what he imagined the author of the offences would be.
In March 2001 the television film “The Letter Bomber” (“Der Briefbomber”), an Austrian and German co-production, which was to be shown on Austrian and German television, was presented to the press. The film, a fiction, based its story-line on the above cited series of letter bombs. It dramatised in substance the criminal investigations from the point of view of the expert on criminal psychology, the responsible of the investigation team and the committer himself.
In the film the character of the Minister for the Interior, Mr M, favoured for political reasons the theory attributing the bombs to a group of right wing extremists and therefore suppressed the single author theory. This becomes particularly evident in one scene, where Mr M forbade the film character personating the expert on criminal psychology to publish the psychological profile of the author of the offences and shortly afterwards forbade him to speak to the press.
1. The article at issue
On 29 March 2001 the second applicant published a two-page article under the heading “Bomber–Film with explosive message” in the “Neue Kronen Zeitung”.
The subtitles read as follows: “Already seen for readers of the “Krone”: the television thriller about the hunting down of Franz Fuchs. Suspenseful and close to the truth. Particularly close to the political [truth]”.
In its first paragraph the article again stated that the film at issue was a “thriller with an explosive political message- against the former Federal Minister for the Interior Caspar Einem”
The article went on to describe the film as the result of meticioulous investigation and possessing a documentary quality. It then explained that the film concentrated on two important aspects. On the one hand the fierce and long lasting battle of the criminal psychologist defending the single author theory against his colleagues. And, on the other hand, his battle
“against a Minister for the Interior who refuses for political reasons to communicate the psychological profile of the author of the offences - which later turned out to be astonishing correct - to the public. And this because in view of forthcoming elections the Minister - everybody in Austria knows, that Caspar Einem is meant - prefers to have the search continued much too long in the right wing circles. [This matter is] still political explosive today. Bad rumour has it that this is possibly the reason why the broadcast [of the film] by the Austrian Broadcasting Corporation - originally planned for one week before the elections in Vienna - has been postponed to 22 April.”
2. Defamation proceedings and compensation under the Media Act
Mr Einem filed a private prosecution for defamation (üble Nachrede) against the second applicant and a compensation claim against the first applicant company under the Media Act (Mediengesetz) with the Vienna Regional Court (Landesgericht).
On 10 May 2001 the Regional Court ordered the first applicant to publish a notice on the introduction of the proceedings.
On 26 July 2001 and on 27 September 2001 the Regional Court held hearings and heard inter alia the second applicant, Mr Einem, the criminal psychologist, the Director General for public security (Generaldirektor für öffentliche Sicherheit) and the responsible police officer for the criminal investigations at the time of the letter bomb series.
On 27 September 2001 the Regional Court convicted the second applicant of defamation under Article 111 of the Criminal Code (Strafgesetzbuch) and sentenced him to a fine 60 daily rates (Tagessätze) of ATS 900 each (i.e a total of ATS 54, 000 [approximately € 3,920]) or 30 days' imprisonment in default.
It further ordered the applicant company to pay ATS 50,000 (approximately € 3,630) as compensation to Mr Einem, pursuant to Section 6 of the Media Act.
Finally, the court ordered confiscation of the remaining stocks of the relevant issue of “Neue Kronen Zeitung” and the publication of extracts from its judgment.
The court noted that the second applicant had not merely repeated the story-line of the television film but had rather given the reader the impression that he identified with its message. He had conveyed to the reader that Mr Einem, in abuse of his authority, had disregarded his duty to resolve properly and efficiently the letter bomb case. He had thereby accused Mr Einem of behaviour contrary to honour or morality (unehrenhaftes Verhalten), namely of politically motivated breach of his professional duty.
This accusation was a statement of fact. The applicant had, however, failed to supply any evidence to prove this reproach.
The court noted in this regard that Mr Einem had mobilised a special investigation team for the investigation concerning the letter bomb series. Mr Einem had not given any instruction as to the orientation of the investigations nor had he prevented the experts from investigating all avenues.
The court found it established that in November 1996 a book about the psychological profile of a single author of all acts was presented to the public. The idea behind the book, which had been written in cooperation with the Director General for public security and the expert on criminal psychology, was to get by this way in contact with the still unknown author of the attacks and to prompt a reaction from him. It subsequently came to a debate between the chief executive officer for public security and Mr Einem as the latter had not been informed about the publication of the book. The expert on criminal psychology had been instructed not to give any statements on that subject to the public. However, there had never been a discussion between Mr Einem and the expert on criminal psychology during which the latter had requested permission from Mr Einem to publish the single committer profile which Mr Einem had refused. Nor was there any further indication that Mr Einem had in fact influenced, had given instructions or had hindered the investigations.
The court further noted that the second applicant had not complied with the standards of journalistic diligence. The second applicant had in particular never confronted Mr Einem with the reproaches he was raising against him.
The applicants appealed against this judgment and argued inter alia that the court had wrongly classified the article at issue as a statement of fact instead of a value judgment, which, at all events, was based on true facts. They referred in this regard to the statements of the witnesses in the proceedings before the Regional court according to which Mr Einem had been of the opinion that the bombs had to be attributed to several committers.
On 15 April 2002 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicants' appeal. It noted that the article could not be seen as neutral reporting. It was true that the second applicant in his article correctly reproduced the story of the film. He had, however, added formulations and wordings which showed that he identified with the film's message, found its reproaches justified and repeated them.
It further noted that at the time of the criminal investigations the experts' opinions had been divided on the question whether the bombs had to be attributed to a single person or to a group of right wing extremists. At this time nobody could have taken it for established that the single committer theory finally turned out to be correct. The mere preference of one of the hypothesis could therefore not justify the reproach that the other hypothesis had been suppressed on purpose. Nor did the statements of the witnesses in the proceedings at issue give any indication that Mr Einem had abused his function.
Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him/her. In this context “defamation” has been defined in Section 111 of the Criminal Code (Strafgesetzbuch), as follows:
“1. As it may be perceived by a third party, anyone who accuses another of having a contemptible character or attitude, or of behaving contrary to honour or morality, and of such a nature as to make him contemptible or otherwise lower him in public esteem, shall be liable to imprisonment not exceeding six months or a fine ...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ...
3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true.”