ECHR judgment of 10 October 2019 in the case of Levit v. Austria (Lewit v. Austria) (application No. 4782/18).
In 2018, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Austria.
In the case, an application was successfully examined regarding a slanderous article published in the media that violates the applicant’s personal rights. The case has violated the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of the applicant.
Circumstances of the case
In August 2015, a right-wing magazine published an article in which the author called the people released from the Mauthausen concentration camp in 1945 "the plague," and the former prisoners "criminals" who "invaded the country," robbing, ruining, killing and defiling. " The criminal case against the author of the article was dismissed. In February 2016, the same magazine published an article by the same author, reporting the termination of criminal proceedings against him and repeating the appeals of the above statements.
The Holocaust survivor, an activist and former prisoner of Mauthausen, filed a lawsuit under Articles 6 and 8a of the Media Law in relation to article 2016, demanding compensation for non-pecuniary damage and a refutation of the information contained in the article. Austrian courts dismissed his lawsuit, arguing that it could not be established that the applicant could be identified individually and that no one could have been personally affected by this article, which mainly reported on the outcome of the criminal case.
QUESTIONS OF LAW
Regarding compliance with Article 35 § 1 of the Convention To protect his reputation from slanderous claims, the applicant could choose among several legal methods. The objectives of the applicant during the consideration of his case in Austria were (1) to compel the courts of the respondent State to admit that the disputed passages of Article 2016 were libelous in content and violated his personal rights protected by Article 8 of the Convention, refute the relevant statements and publish a refutation, ( 2) receive compensation for non-pecuniary damage allegedly caused to him as a result of the publication of the article in question.
(a) The effectiveness of the remedies pursuant to section 1330 of the Civil Code and sections 12 and 14 (1) of the Media Act. The Government submitted that it was necessary for the applicant to file claims under article 1330 of the Civil Code in relation to articles published in 2015 and 2016. This would be an effective remedy for the first stated purpose, namely, to refute the allegations contained in the articles in question.
The Court has regularly awarded non-pecuniary damage in cases where the applicant’s personal rights were violated by media publications. In some cases, the Court concludes that the finding of a violation of Article 8 of the Convention was in itself sufficient just satisfaction and rejected the claim for non-pecuniary damage. From the Court's case-law on personal rights in connection with publications in the media, it follows, a fortiory, that a domestic remedy should provide the courts with at least the possibility of awarding damages if appropriate in the circumstances of a particular case. Accordingly, a remedy that does not allow a claim for non-pecuniary damage cannot be considered effective in respect of complaints of privacy guaranteed by Article 8 of the Convention.
Since the second purpose of the applicant was to obtain compensation for non-pecuniary damage for the publication of the disputed articles, therefore, a lawsuit under Article 1330 of the Civil Code could not be considered an effective means, since it did not provide an opportunity to receive compensation for the damage caused in the event of the establishment of a violation of personal rights. Similar arguments apply to remedies in accordance with Articles 12 and 14 (1) of the Media Law, which, unlike claims under Articles 6 and 7c of the Media Law, did not provide for the possibility of filing a compensation claim.
(b) The effectiveness of the claim under Articles 6 and 8a of the Media Act in relation to article 2015. Part two of Section 8a of the Media Law required that a lawsuit be filed in accordance with sections 6 and 8a of the Media Law regarding the first publication containing allegedly defamatory allegations. The Government noted that in the applicant's case concerning the 2015 article, he had not exhausted domestic remedies, missing the six-month deadline for filing a complaint.
Following the logic of the Austrian authorities, this would mean that the applicant no longer had the remedy available in respect of the first article when the second article was published. However, the Austrian courts did not explain whether this deadline, with regard to the “distribution of the first article”, was applicable to all other cases of repeated statements in a different context in new articles in the press. The lack of explanation was all the more significant since the article was published under a different heading and new comments and fragments were added in it, which were not in the first article.
The Court also rejected the Austrian Government's objection that the applicant could report the appealed complaints to the prosecutor in accordance with Article 297 of the Criminal Code, demanding an investigation on the basis of Articles 111 and 115 of this Code.
The complaint is declared admissible on the merits (accepted unanimously).
Regarding compliance with article 8 of the Convention. The relevant facts concerned the applicant’s private life, even if his name was not mentioned in the contested article.
First of all, it should be noted that the trial court found that the plaintiff had no legal grounds for filing a claim. The very question of whether the members of the group could have been personally affected by the statement about a historical event concerning this group, which during the period of this event was significant but declined over time, as in the case of the applicant, has not yet been examined by the Austrian courts. The Court of Appeal did not mention the issue of legal grounds at all, despite the obvious lack of case-law, the detailed arguments presented by the applicant in his initial claim and complaint, and the fact that the determination of this preliminary question was essential for the consideration of the claim on the merits. Due to the fact that no conclusions were made in this regard, the essence of the applicant’s claim, namely that, in his opinion, he really personally suffered from the defamatory nature of the statements, since the group of persons under consideration was reduced to a small number of people, so It has never been considered by the courts of Austria.
Analyzing the disputed statements in the context of the 2016 article, the Court was not convinced by the position of the Austrian courts that the plaintiff could not be affected by the statements made in this article. The content of the 2016 article was significantly different from the 2015 article: the 2015 article was devoted to a historical event, the release of prisoners from the Mauthausen camp, and the 2016 article related to criminal investigations against the author of the articles and the person who provided information to the prosecutor. Consequently, it was necessary to provide a comprehensive explanation of the reasons for this interpretation by the Austrian courts.
Due to the lack of a comprehensive study of legal substantiation issues and whether the statements were of the same or other significance in the context of the 2016 article, the Austrian courts never actually examined the applicant’s claim for defamation on the merits. Accordingly, they failed to fulfill their procedural obligation under article 8 of the Convention to conduct a comprehensive review of the issue of the protection of personal human rights.
In the case there was a violation of the requirements of Article 8 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant EUR 648.48 in respect of pecuniary damage and EUR 5,000 in respect of non-pecuniary damage.