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Liability and Sanctions

Fraktion Sozialistischer Gewerkschafter im ÖGB Vorarlberg and 128 of its individual members (Köpruner, Falschlunger and Others) v Austria (decision), 13 April 1989 [ECtHR]

Case no 12387/86

The applicants are 128 individual members of the group of socialist trade-unionists in the Vorarlberg branch of the Austrian Trade Union Federation (Fraktion sozialistischer Gewerkschafter im O¨sterreichischen Gewerkschaftsbund Vorarlberg) who, in 1984, presented themselves as candidates for the elections to the Workmen's Chamber (Arbeiterkammer) of Vorarlberg. They include the present Chairman (Obmann) of this group, Mr. Kurt Ko¨pruner, and its former Chairman who was still in office at the relevant time, Mr. Karl Falschlunger. All individual applicants are Austrian citizens residing at various places of Vorarlberg. The group of socialist trade-unionists as such, represented through its Chairman, Mr. Ko¨pruner, wishes to figure as a further applicant.
...
In the course of the electoral campaign, the group of socialist trade-unionists published and distributed to the general public a series of pamphlets under the title "Wussten Sie, dass ..." ("Did you know that ..."). One of the pamphlets (No. 19 published in February 1984 with a circulation of 12,000 copies) dealt in a critical way with the medical profession in Vorarlberg ...
It was claimed that the incriminated passages fulfilled the objective conditions of the criminal offence of defamation in the press (u¨ble Nachrede in einem Druckwerk) within the meaning of Section 111 para. 2 of the Penal Code (Strafgesetzbuch) and that the group of socialist trade-unionists as a whole was responsible for this under the imprint of the publication. However, as the group was not a legal person, the application was directed against its individual members.
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The Regional Court ... allowed the application against all 128 individual applicants, finding that the above-cited passages of their publication objectively constituted the offence of defamation under Section 111 paras. 1 and 2 of the Penal Code. Furthermore, it ordered the forfeiture of that publication under Section 33 of the Media Act as well as the publication of the judgment in a local newspaper under Section 34 of the Act.
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The applicants further invoke Article 11 of the Convention and claim that the fact of holding them individually responsible only because they belonged to the group of persons indicated in the imprint of the publication interferes with trade union freedom or freedom to create political associations. This practice must deter the individuals concerned from becoming members of the trade unions or associations in question. This interference with trade union freedom cannot be justified under Article 11 para. 2 because the person responsible for the publication was known and the rights of others thus could be protected by proceeding against that person
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The Commission notes that this group was not recognised as a legal person by the Austrian courts. It may therefore be doubtful whether it can validly be represented by its Chairman, Mr. Ko¨pruner. In any event, the group as such was not held responsible for the publication, it was not represented in the domestic proceedings, and the sanctions imposed as a result of the proceedings were not pronounced against it. In these circumstances the Commission does not consider the group of socialist trade-unionists as a separate victim for the purposes of Article 25 (Art. 25) of the Convention, in addition to the 128 individuals belonging to this group who were directly affected by the proceedings.
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The Commission notes that the imprint of the restricted publication referred to the group of socialist trade-unionists, and that the representatives of the group in the Workmen's Chamber, and prior to their election, its candidates, are commonly referred to under this name. This apparently was the reason why the individual applicants, who had not been otherwise identified, were treated as defendants in the domestic proceedings. For the purpose of Article 25 (Art. 25) of the Convention they constitute a "group of individuals" under the aggregate name "Fraktion sozialistischer Gewerkschafter im O¨GB Vorarlberg" (cf. mutatis mutandis, No. 6538/74, Times Newspapers Ltd., The Sunday Times, and Harold Evans v. the United Kingdom, Dec. 21.3.75, D.R. 2 p. 90 at p. 95).
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5. The applicants, except Mr.  Falschlunger, further claim that the fact of holding them jointly responsible for the publication involved a violation of Article 11 (Art. 11) of the Convention which guarantees inter alia everyone's right to freedom of association, including the right to form and join trade unions for the protection of his interests. However, the Commission considers that the proceedings complained of did not in any way interfere with this right. The applicants remained free to become members of any lawful association, including trade unions or branches thereof. The fact that by
joining such organisations they could incur a joint liability for publications of these organisations in certain cases was a normal consequence of their membership. In the present case this joint liability arose as a consequence of the formulation of the imprint of the publication in question and the fact that
the group of socialist trade-unionists mentioned therein was not a legal person susceptible of incurring a liability of its own. In these circumstances it was justified that the individuals constituting the group were jointly held liable. The Commission concludes that this part of the application is manifestly ill-founded.

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Jurisprudence

Members - Belonging or supporting an illegal organization Liability of members Sanctions NGO - Suspension of activities Members - Breach of fax regulation Members - Defamatory publication Members - Breach of rules on statements to press Members - Loss of parliament any seats following party's dissolution Officials - Failure to annul memberships Officials - participation in unlawful meeting NGO - Listing as terrorist organisation