European Court: Jerusalem v. Austria - (06.09.01)

European Court: Jerusalem v. Austria

Freedom of expression and anti-sect speech

By Willy Fautr

HRWF International Secretariat (06.09.2001) - Website: http://www.hrwf.net - Email: info@hrwf.net - On 11 June 1992, in the course of a session of the Vienna Municipal Council (*), Mrs Susanne Jerusalem, in her function as member of the Municipal Council, gave a speech. The debate related to the granting of subsidies by the municipality to an association which assists parents whose children had become involved in sects. In this context, Mrs Susanne Jerusalem - the applicant - made the following statement:

Like everyone, I know that today a sect no longer means a small group that breaks away from a big church ,but a psycho-sect.

These psycho-sects also exist in Vienna. They have common features. One aspect they have in common is their totalitarian character. Moreover, in their ideology, they show fascist tendencies and often have hierarchical structures. In general, a person who gets involved with such a sect loses his identity and submits to the group

The sect IPM (Institut zur F?rderung der Psychologischen Menschenkenntnis), which has not existed in Austria for a long time but nevertheless has for several years C in Switzerland, it is called VPM C gained influence on the drug policy of the Austrian Peoples Party.

The applicant then stated that the Austrian Peoples Party had issued a publication on drug policy in co-operation with the IPM, and had organised information activities involving public discussions together with the IPM. The applicant then requested a resolution by the Municipal Council that, before granting subsidies to an association, the question whether that association was a sect should be examined.

On 27 October 1992, the IPM, an association established under Austrian law, and the Verein zur F?rderung der Psychologischen Menschenkenntnis (VPM), an association established under Swiss law, filed a civil law action against the applicant with the Vienna Regional Court for Civil Matters (Landesgericht fr Zivilrechtssachen). They requested the court to issue an injunction against the applicant

- prohibiting her from repeating the statement that the IPM was a sect

- ordering her to retract this statement

- granting the publication of the applicants retraction in several Austrian newspapers.

On 22 February 1993, a hearing took place before the Regional Court. on 8 April 1993, the Regional Court granted the injunction. It ordered the applicant

- not to repeat her statements that the IPM and VPM were sects of a totalitarian character

- to retract these statements

- to publish the retraction in several newspapers.

On 12 July 1993, the applicant appealed.

On 16 November 1993, the Vienna Court of Appeal (Oberlandesgericht) upheld the Regional Courts decision in so far as it concerned the prohibition on repetition, but dismissed the order but dismissed the order for a retraction and its publication because the plaintiffs had failed to specify the addressees of the retraction, even though the applicants statements had been reported in the newspapers.

On 18 August 1994, the Supreme Court (Oberster Gerichtshof) rejected as inadmissible the applicants further appeal on points of law. It confirmed however that the statements such as fascist tendencies or totalitarian character were statements of fact which the applicant had failed to prove.

On 2 March 1995, the applicant lodged an application (n 26958/95) against Austria with the European Commission of Human Rights. The applicant alleged that the injunction prohibiting her from repeating certain statements she had made in the course of a debate in the Vienna Municipal Council violated her right to freedom of expression. Furthermore, she alleged that the court proceedings leading to the injunction had been unfair.

The application was transmitted to the European Court on 1 November 1998. By a decision of 27 June 2000, the application was declared partly admissible. A hearing took place in public on 3 October 2000. The Court deliberated in private on the same day and on 30 January 2001. The judgment was issued on 27 February 2001.

Alleged violation of Article 10 of the European Convention

The applicant alleged a breach of Article 10 of the European Convention which guarantees the freedom of expression. The applicant contested the necessity of the interference with her right to freedom of expression. The incriminated statements had been made in the course of a session of the Vienna Municipal Council and concerned a political issue, namely the granting of public subsidies to associations and, in particular, an association of parents whose children had become involved with sects. Finally, the applicant submitted that the statements at issue were value statements. This opinion was not shared by the Austrian courts, which qualified them as statements of fact, the truth of which had not been proved.

The European Court recognized that there was an interference with the applicant㡯s right to freedom of expression. Furthermore, there was no dispute that the interference was prescribed by law and pursued a legitimate aim, namely the protection of the reputation or rights of others. However, the dispute in the case related to the question whether the interference was necessary in a democratic society.

The Court recalled that while freedom of expression is important for everybody, it is especially so for an elected representative of the people because he or she represents the electorate, draws attention to their preoccupations and defends their interests. The Court also recalled that the limits of acceptable criticism are wider with regard to politicians acting in their public capacity than in relation to private individuals. The Court noted that the associations IPM and VPM were active in the public domain (cooperation with a political party in their anti-drug policy) and ought to have shown a higher degree of tolerance to criticism.

Contrary to the views of the Austrian Courts, the European Court found that the impugned statements in the present case were to be regarded as value judgements rather than statements of fact. The truth of value judgments is not susceptible of proof while statements of facts are.

The European Court also reproached the Austrian Courts with refusing to hear four witnesses and an expert opinion to be presented by the applicant while requiring her to prove the truth of her statements.

Judgment

The European Court held unanimously that there had been a violation of Article 10 of the European Convention (freedom of expression) and that the finding of a violation in itself constituted sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. The Austrian State had to pay the applicant 101,531.40 Austrian schillings for costs and expenses incurred in the domestic proceedings and 110,000 Austrian schillings for costs and expenses incurred in the proceedings before the Convention organs.

(*) Members of the Vienna Municipal Council enjoy a limited parliamentary immunity. They are exempt from legal proceedings for anything said by him or her in the course of debates in the Municipal Council insofar the Municipal Council sits as Parliament of a Land. However, this privilege does not extend to sessions of the Municipal Council sitting as the local council. The reason is that Vienna, under the Austrian Constitution, has a dual function, being at the same time a Land and a local council.