FIRST SECTION

CASE OF FERIHUMER v. AUSTRIA

(Application no. 30547/03)

JUDGMENT

STRASBOURG

1 February 2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ferihumer v. Austria,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Mr	 , President,
	Mr	 ,
	Mrs	 ,
	Mrs	 ,
	Mr	 ,
	Mrs	 	Mr	  judges,
and Mr  , Section Registrar,
Having deliberated in private on 11 January 2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 30547/03) 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 an Austrian national, Mr Johann Ferihumer (“the applicant”), on 13 September 2003.
2.  The applicant was represented by Mr B. Wageneder, a lawyer practising in Ried. The Austrian Government (“the Government”) were represented by their Agent, Mr F. Trauttmansdorff.
3.  The applicant alleged that he had been violated in his right to freedom of expression under Article 10 of the Convention.
4.  By a decision of 14 February 2006, the Court declared the application admissible.
5.  Neither the applicant nor the Government filed further written observations (Rule 59 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
6.  The applicant was born in 1945 and lives in Waizenkirchen.
7.  At the time of the events, he was the father of a pupil of a secondary school in Grieskirchen (Bundesoberstufenrealgymnasium) and vice-chairman and recording clerk (Schriftführer) of the parents' association (Elternverein) at this school.
8.  In protest against the government's cuts in the education budget, the teachers of this school decided, together with the teaching staff of two other schools, to reduce and shorten school trips for the school year 2001/2002. The pupils and some parents, including the applicant, did not agree with these measures.
9.  The applicant called for a vote by the School Committee (Schulgemeinschaftsausschuss) of the Grieskirchen secondary school on the question whether the class his son was attending, should go on a one week trip to Tuscany or Prague. The School Committee which is composed of three representatives of the teachers, three parents and three pupils and the director of the school, represents parents and pupils in certain school matters.
10.  The meeting at which the School Committee should have to vote on the question, after having been once postponed because one of the teachers' representatives could not participate, was finally fixed for 22 January 2002.
11.  On 22 January 2002, before the meeting of the School Committee, the chair of the parents' association on behalf of the parents, the pupils' spokesperson on behalf of the pupils and two representatives of the teachers signed a compromise which provided for only a one-day school excursion per class during the school year 2001/2002 and for compensatory school trips in the autumn of 2003.
12.  On this day the applicant stated before a journalist of the “Oberösterreicher Rundschau”, a local newspaper for Upper Austria, that this conflict (between the teachers, parents and pupils concerning the boycott measures) was carried out to the detriment of the pupils and that the teachers were applying pressure on the pupils and parents to an intolerable extent and that this amounted in fact to an abuse of their authority.
13.  On 24 January 2002 the “Oberösterreicher Rundschau” published an article which stated inter alia: “ 'This conflict is carried out to the detriment of the pupils' blusters professor Johannes Ferihumer, representative of the parents and former teacher at the secondary school. 'Not only this: the teachers apply pressure on pupils and parents to an intolerable extent. This amounts in fact to an abuse of their authority. Who is surprised that the school speaker was at the end of her tether.' ”
14.  The majority of teachers of the Grieskirchen secondary school brought proceedings against the applicant for insult and damage to their reputation before the Peuersbach District Court.
15.  The Peuersbach District Court heard the applicant, the teachers, the spokesperson of the pupils, the chair of the parents' association and several other witnesses.
16.  By judgment of 9 October 2002, it ordered the applicant to refrain from repeating the statement that the teachers were applying pressure on the pupils and parents to an intolerable extent and that this amounted in fact to an abuse of their authority. It noted that the statement was an insult and a defamation within the meaning of Article 1330 of the Civil Code. The applicant had to accept the most unfavourable interpretation of this statement which meant that the teachers had used unlawful and unobjective means in order to make parents and pupils agree to the boycott measures. The applicant had, however, failed to submit any evidence to prove this reproach. The court noted that it was true that, in the course of time the atmosphere between the pupils and teachers at the Grieskirchen secondary school had been strained. The spokesperson of the pupils had complained that the teachers did not take her seriously and avoided any discussion about the boycott measures with her. She had, therefore, resigned from her function as spokesperson. The court further observed that the conflicting interests of teachers, parents and pupils in regard to the boycott measures naturally caused tensions. There was, however, no indication that the teachers had used unlawful and unobjective means, such as, for example, the use of their authority to assign marks, in order to make the parents and pupils agree to the compromise. It was, on the contrary, because of the teachers' unbending attitude concerning the boycott measures that pupils and parents had finally resigned and agreed to the compromise.
17.  The court dismissed the teachers' further request for an injunction as regards the applicant's statement that the conflict was detrimental to the pupils.
18.  The applicant appealed against this decision. He submitted inter alia that he had alluded to the subtle measures the teachers had employed in order to reach a compromise, such as their threat to boycott the meeting of the School Committee and their tactics to undermine the authority of the pupils' spokesperson. This was contrary to their official duties and, therefore, unlawful. He further referred their successful tactics to delay the meeting of the School Committee, the testimony of some pupils who had stated that they had felt under pressure and the fact that, in the context of the discussions concerning the boycott measures, both the pupils' spokesperson and the chair of the parents' association had resigned from their functions. The statement at issue was a value judgment with sufficient factual basis and was protected by his right to freedom of expression under Article 10 of the Convention. From the context of the situation in which the statements had been made, it was clear that he had referred to the pressure which had led to the signing of a compromise. Neither the concerned pupils, nor the parents had understood his criticism to the effect that the teachers had applied psychical or verbal violence or had applied pressure by their authority to assign marks. Furthermore, the teachers had themselves attracted the attention of the public by their boycott measures which had provoked criticism and resistance.
19.  On 5 February 2003 the Wels Regional Court dismissed the appeal. It noted that the statement at issue constituted a statement of fact susceptible of proof. The applicant had failed to prove that the statement was true. The injunction at issue did, therefore, not violate the applicant's right to freedom of expression. The court further ordered the applicant to pay the costs of the proceedings. This decision was served on the applicant's counsel on 13 March 2003.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
20.  The applicant complained about violation of his right to freedom of expression under Article 10 of the Convention, which, as far as relevant, reads as follows:
“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. (...)
2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
21.  The Government contended that the injunction issued against the applicant constituted an interference with his rights under Article 10 of the Convention which was, however, justified under § 2 of this provision. It had a legal basis, namely Section 1330 of the Civil Code, and pursued the legitimate aim of protection of the reputation of others. As to the necessity of the interference, they argued that the Austrian courts classified the applicant's statements as statements of facts. An essential element for this classification was that the applicant had not given any explanation for his statements which was thus not discernible as a value judgment. There was no factual basis to enable the reader to evaluate himself why the applicant had come to his conclusions. Therefore, it appeared legitimate that the Austrian courts attributed to the statements at issue the meaning usually conveyed by similar reproaches, namely that the plaintiffs had been guided by improper and unlawful motives. The applicant himself had endorsed this interpretation as, in his appeal with the Regional Court, he had argued why the teachers' conduct had allegedly been unlawful. However, the Austrian courts, after comprehensive evaluation of all evidence, came to the conclusion that these accusations were factually incorrect. The measures taken by the Austrian courts were proportionate, as the applicant was merely ordered to refrain from making further such statements which did not hinder him to express his opinion in other less defamatory or insulting words. The Government finally argued that, even assuming that the statements at issue were value judgments, the interference was proportionate as the applicant's statements were unsubstantiated and the details of the underlying conflict were not known to the public. Such extremely harsh, excessive and generalising criticism was not justified by the applicant's interest in several-day excursions abroad.
22.  The applicant argued that the statements at issue amounted to value judgments which had sufficient factual basis. He had made the statements as an immediate reaction upon the compromise signed by the teachers, parents and pupils. Having regard to his commitment for the pupils' case, he had reasons for his indignation. As regards the factual basis of his statements, the applicant referred to the fact that the pupils' spokesperson resigned from her function, that there had been tensions in the school and that the meetings of the determining School Committee were scheduled. The Austrian courts' findings that, in doubt, the applicant had to accept the most unfavourable interpretation of this statement was contrary to his right to freedom of expression. Moreover, 40 teachers had already attempted to institute criminal proceedings against him before the civil proceedings at issue. These proceedings had been discontinued on formals grounds and it had, therefore, been possible that a criminal sanction would have been imposed on him as well.
23.  The Court notes that the parties agreed that the injunction at issue constituted an interference with the applicant's right to freedom of expression under Article 10 of the Convention. The interference was prescribed by law, namely by Section 1330 of the Civil Code and served the protection of the reputation or rights of others. The issue is, therefore, whether it had been “necessary within a democratic society” within the meaning of § 2 of Article 10.
24.  The Court recalls that the test of necessity in a democratic society requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient. In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not however unlimited, but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by  Article 10. The Court's task in exercising its supervisory function is not to take the place of the national authorities, but rather to review under  Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their margin of appreciation. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, amongst many other authorities,, no. 29271/95, § 38, 26 February 2002). One element of particular importance for the Court's determination is the distinction between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see, for example, , judgment of 8 July 1986, Series A no. 103, p. 28, § 46, and , judgment of 23 May 1991, Series A no. 204, p. 27, § 63). However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (, no. 26958/95, § 43, ECHR 2001-II).
25.  Turning to the circumstances of the present case, the Court observes that the applicant's impugned statement was made in the immediate context of a heated discussion between teachers, pupils and parents. The applicant did not favour the compromise finally reached and reacted by saying that the teachers were applying pressure on the pupils to an intolerable extent and that this amounted in fact to an abuse of their authority.
26.  Unlike the domestic courts, the Court does not find that this statement necessarily suggested that the teachers had used unlawful and unobjective means. This interpretation apparently focuses on the wording “abuse of authority” and neglects that the applicant referred in this regard to his feeling that the “teachers applied intolerable pressure”. The applicant thereby expressed his opinion on the teachers' conduct in the conflict at issue and made a value judgment, the truth of which, by definition, is not susceptible of proof.
27.  Having regard to the undisputed fact that there were considerable tensions at the school concerned which inter alia brought the pupils' spokesperson to resign, the Court further finds that there was sufficient factual basis for the impugned statement which, therefore, cannot be considered as excessive. In this regard, the Court takes further account of the fact that the applicant was vice-chair of the parents' association.
28. The Court does not accept that the limited nature of the interference, namely the order to refrain from repeating the impugned statement, is decisive; what is of greater importance is that the domestic courts restricted the applicant's freedom of expression while relying on reasons which cannot be regarded as sufficient and relevant. They therefore went beyond what would have amounted to a “necessary” restriction on the applicant's freedom of expression.
29.  It follows that there has been a violation of the applicant's rights under Article 10 of the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
30.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
31.  The applicant claimed reimbursement of 418.17 euros (EUR), including value added tax (VAT), for the proceedings costs he had to pay to the plaintiffs. He further claimed EUR 700 in respect of non-pecuniary damage.
32.  The Government contested the applicant's claim for non-pecuniary damage.
33.  Having regard to the direct link between the applicant's claim concerning reimbursement of the costs of the domestic proceedings he was ordered to pay to the plaintiffs and the violation of Article 10 found by the Court, the Court finds that applicant is entitled to recover the full amount of 418.17 EUR in this respect. This amount includes VAT.
34.  As regards the applicant's claim for non-pecuniary damage, however, the Court finds that the finding of a violation constitutes in itself sufficient just satisfaction.

B.  Costs and expenses
35.  The applicant claimed EUR 590.96 for legal costs incurred in criminal defamation proceedings against him which had subsequently been discontinued. He further claimed EUR 8,760.39, including VAT, for legal costs incurred in the civil injunction proceedings. He finally claimed EUR 1,831.68, including VAT, for the costs of the proceedings before the Court.
36.  The Government contested the claim for reimbursement of legal costs incurred in criminal defamation proceedings. They further contented that the costs claimed for the civil injunction proceedings were excessive insofar as they included the amount of EUR 318 which were not substantiated in the applicant's cost note.
37.  The Court reiterates that in order for costs and expenses to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred in order prevent the violation found by the Court and are reasonable as to quantum. The Court considers that these criteria are not fulfilled in respect of the criminal defamation proceedings which had not been the subject of the present application. Thus, no award can be made in this regard. As to the costs incurred in the civil injunction proceedings and the Convention proceedings, the Court finds that the applicant had, except for EUR 318 which had been subject of the Government's objection to the costs of the civil injunction proceedings, shown that these conditions were fulfilled. It consequently awards EUR 8,442.39 in respect of the domestic proceedings costs and EUR 1,831.68, in respect of the Convention proceedings costs.
38. In total, it awards EUR 10,274.07 in respect of cost and expenses. This amount includes VAT.
C.  Default interest
39.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Holds that there has been a violation of Article 10 of the Convention;

2.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 418.17 (four hundred eighteen euros and seventeen cent) in respect of pecuniary damage and EUR 10,274.07 (ten thousand two hundred seventy four euros and seven cents) in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 1 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Christos 
	Registrar	President