PROCEDURE

The case originated in an application (no. 68354/01) 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 association, Vereinigung Bildender Künstler (“the applicant association”), on 12 March 2001.

The applicant association was represented by Schönherr OEG, a law firm practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

The applicant association alleged that the Austrian courts' decisions forbidding it to continue exhibiting a painting by Otto Mühl had violated its right to freedom of expression under Article 10 of the Convention.

The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

By a decision of 30 June 2005 the Court declared the application admissible.

Neither the applicant association nor the Government filed further written observations (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

Vereinigung Bildender Künstler Wiener Secession is an association of artists with its seat in the Secession building in Vienna. The Secession, an independent gallery, is devoted entirely to exhibitions of contemporary art. One of the basic objectives of the association is to present current developments in Austrian and international art, and to cultivate an openness to experimentation.

Between 3 April and 21 June 1998 the applicant association held an exhibition on its premises. The exhibition, entitled “The century of artistic freedom” (“Das Jahrhundert künstlerischer Freiheit”), was intended as part of the celebrations of the association's 100th anniversary. Among the works to be shown was a painting entitled “Apocalypse”, which had been produced for the occasion by the Austrian painter Otto Mühl. The painting, measuring 450 cm by 360 cm, showed a collage of various public figures, such as Mother Teresa, the Austrian cardinal Hermann Groer and the former head of the Austrian Freedom Party (FPÖ) Mr Jörg Haider, in sexual positions. While the naked bodies of these figures were painted, the heads and faces were depicted using blown-up photos taken from newspapers. The eyes of some of the persons portrayed were hidden under black bars. Among these persons was Mr Meischberger, a former general secretary of the FPÖ until 1995, who at the time of the events was a member of the National Assembly (Nationalratsabgeordneter), a mandate he held until April 1999. Mr Meischberger was shown gripping the ejaculating penis of Mr Haider while at the same time being touched by two other FPÖ politicians and ejaculating on Mother Teresa.

The exhibition, for which admission was charged, was open to the public.

On 11 June 1998, while the exhibition was in progress, the Austrian newspaper Täglich Alles bristled at the above painting's portayal of “group sexual situations with Bishop Groer and Mother Teresa”.

On 12 June 1998 the painting was damaged by a visitor, who covered with red paint the part which showed, among others, Mr Meischberger. As a consequence of this incident the entire painted body of Mr Meischberger and part of his face were covered with red paint.

Several Austrian newspapers reported on this event and also published pictures of the painting.

On 22 June 1998 Mr Meischberger brought proceedings under section 78 of the Copyright Act (Urheberrechtsgesetz) against the applicant association, seeking an injunction prohibiting it from exhibiting and publishing the painting. He further requested compensation in the amount of 20,000 Austrian schillings (ATS – 1,453.46 euros (EUR)). He argued that the painting, showing him in sexual positions with several persons, debased him and his political activities and made statements as to his allegedly loose sexual life (lotterhaftes Intimleben). The black eye-bars did not prevent him from being recognised, because he was shown together with two other FPÖ politicians. He remained recognisable even after the incident of 12 June 1998, which had further increased the publicity given to the painting. Furthermore, there was a danger of recurrence as after the present exhibition the painting was due to be shown at another exhibition in Prague.

On 6 August 1999 the Vienna Commercial Court (Handelsgericht) dismissed Mr Meischberger's action. It noted that it had initially been intended to show the exhibition in Prague, Bucharest and Luxembourg as well; now the intention was to close down the exhibition. The court further found that it could be ruled out that the painting had adversely affected the claimant or divulged information about his private life, as the painting, which resembled a comic strip (“comixartig”), obviously did not represent reality. However, a painting showing the claimant in such an intimate position could, regardless of its relation to reality, still have a degrading and personally debasing effect. In the present case, however, the right of the applicant association to freedom of artistic expression outweighed Mr Meischberger's personal interests. When balancing the latter's interests against the interests of the applicant association, the court had regard in particular to the fact that the exhibition was dedicated to the association's artistic spectrum over the last hundred years, which included the work of the Austrian painter Otto Mühl. It further noted that the painting showed numerous other persons, among them friends and benefactors of the painter, and also representatives of the FPÖ party, which had always strongly criticised Mr Mühl's work.

The painting in question could therefore be seen as a kind of counter-attack (Gegenschlag). In any event, Mr Meischberger's picture constituted only a rather small part of the painting and was therefore not striking. The court further added that there appeared to be no danger of recurrence (Wiederholungsgefahr) as the painting had been partly covered by red paint and Mr Meischberger was therefore no longer recognisable on it.

On 24 February 2000 the Vienna Court of Appeal (Oberlandesgericht), after having held an oral hearing, granted an appeal on points of law and fact by Mr Meischberger, issued an injunction against the applicant association prohibiting it from continuing to display the painting at exhibitions, and ordered it to pay the costs incurred by Mr Meischberger in the proceedings and ATS 20,000 (EUR 1,453.46), plus 4% interest with effect from 8 July 1998, in compensation. It further allowed Mr Meischberger to publish extracts of its judgment in two Austrian newspapers. It noted that Mr Meischberger's picture was only partly covered by red paint, so that part of his face, the shape of his head and his hairstyle were still recognisable. The limits of artistic freedom were exceeded when the image of a person was substantially deformed by wholly imaginary elements without it being evident that the picture aimed at satire or any other form of exaggeration. The painting in the present case was not intended to be a parable or even an exaggerated criticism conveying a basic message, such as, for example, the statement that Mr Meischberger had disregarded sexual decency and morals. It therefore did not fall within the scope of Article 10 of the Convention, but in fact constituted a debasement of Mr Meischberger's public standing (Entwürdigung öffentlichen Ansehens). The applicant association could not justify the exhibition of the painting under the artistic freedom protected by Article 17a of the Basic Law (Staatsgrundsgesetz). There was, furthermore, nothing to indicate that the applicant association would abstain from exhibiting the painting in the future, so that there was a danger of recurrence.

On 18 July 2000 the Supreme Court (Oberster Gerichtshof) rejected an appeal by the applicant association as it did not concern a legal question of considerable interest. It noted that the Court of Appeal had not questioned the fact that the painting fell within the scope of protection provided by Article 17a of the Basic Law but, weighing the guarantee of artistic freedom enshrined in that provision against Mr Meischberger's personal rights as protected by section 78 of the Copyright Act, had considered that the latter prevailed over the former because a picture of Mr Meischberger had been used in a degrading and insulting manner. As to the question whether Mr Meischberger could still be recognised despite the painting being covered with red paint, the Court of Appeal had not contradicted the documents contained in the court file and there was therefore no need for a rectification. It ordered the applicant association to pay the costs of the proceedings.

That decision was served on the applicant association's counsel on 13 September 2000.
NOT_CONFIDENTIAL
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CODE
DIRECT
68354/01
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correct
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ORG
NO_MASK
Republic of Austria
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correct
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ORG
DIRECT
Vereinigung Bildender Künstler
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DATETIME
QUASI
12 March 2001
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ORG
QUASI
Schönherr OEG
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LOC
NO_MASK
Vienna
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ORG
NO_MASK
Austrian Government
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PERSON
QUASI
F. Trauttmansdorff
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ORG
NO_MASK
International Law Department
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ORG
NO_MASK
Federal Ministry for Foreign Affairs
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DEM
NO_MASK
Austrian
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PERSON
QUASI
Otto Mühl
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ORG
DIRECT
Vereinigung Bildender Künstler Wiener Secession
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ORG
QUASI
Secession
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LOC
NO_MASK
Vienna
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ORG
QUASI
Secession
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DEM
NO_MASK
Austrian
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001-79213_a8_e15
001-79213_a8_em18
DATETIME
QUASI
3 April and 21 June 1998
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ORG
QUASI
The century of artistic freedom” (“Das Jahrhundert künstlerischer Freiheit”)
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MISC
QUASI
Apocalypse
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001-79213_a8_em21
DEM
NO_MASK
Austrian
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001-79213_a8_e12
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PERSON
QUASI
Otto Mühl
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001-79213_a8_e18
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QUANTITY
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450 cm
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QUANTITY
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360 cm
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PERSON
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Mother Teresa
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DEM
NO_MASK
Austrian
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PERSON
QUASI
cardinal Hermann Groer
POLITICS
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ORG
QUASI
Austrian Freedom Party (FPÖ)
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PERSON
QUASI
Mr Jörg Haider
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PERSON
QUASI
Mr Meischberger
POLITICS
insert
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001-79213_a8_em31
ORG
QUASI
001-79213_a8_em28
FPÖ
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001-79213_a8_em32
DATETIME
QUASI
1995
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001-79213_a8_em33
ORG
NO_MASK
National Assembly (Nationalratsabgeordneter)
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001-79213_a8_em34
DATETIME
QUASI
April 1999
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PERSON
QUASI
Mr Meischberger
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001-79213_a8_e28
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PERSON
QUASI
Mr Haider
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001-79213_a8_e22
001-79213_a8_em37
ORG
QUASI
FPÖ
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001-79213_a8_e20
001-79213_a8_em38
PERSON
QUASI
Mother Teresa
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001-79213_a8_e29
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DATETIME
QUASI
11 June 1998
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DEM
NO_MASK
Austrian
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ORG
QUASI
Täglich Alles
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PERSON
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Bishop Groer
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PERSON
QUASI
Mother Teresa
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DATETIME
QUASI
12 June 1998
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001-79213_a8_e24
001-79213_a8_em45
PERSON
QUASI
Mr Meischberger
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001-79213_a8_em46
PERSON
QUASI
Mr Meischberger
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DEM
NO_MASK
Austrian
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DATETIME
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22 June 1998
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PERSON
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Mr Meischberger
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ORG
QUASI
20,000 Austrian schillings
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QUANTITY
QUASI
1,453.46 euros (EUR)
POLITICS
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ORG
QUASI
FPÖ
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DATETIME
QUASI
12 June 1998
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LOC
NO_MASK
Prague
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DATETIME
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6 August 1999
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ORG
QUASI
Vienna Commercial Court (Handelsgericht)
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001-79213_a8_em57
PERSON
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Mr Meischberger
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LOC
NO_MASK
Prague
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LOC
QUASI
Bucharest
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LOC
QUASI
Luxembourg
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PERSON
QUASI
Mr Meischberger
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DATETIME
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hundred years
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DEM
NO_MASK
Austrian
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PERSON
QUASI
Otto Mühl
POLITICS
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ORG
QUASI
FPÖ party
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PERSON
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001-79213_a8_em12
Mr Mühl
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PERSON
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Mr Meischberger
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PERSON
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Mr Meischberger
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DATETIME
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24 February 2000
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ORG
QUASI
Vienna Court of Appeal (Oberlandesgericht)
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PERSON
QUASI
Mr Meischberger
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PERSON
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Mr Meischberger
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QUANTITY
QUASI
ATS 20,000
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QUANTITY
QUASI
EUR 1,453.46
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QUANTITY
NO_MASK
4%
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DATETIME
QUASI
8 July 1998
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PERSON
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Mr Meischberger
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DEM
NO_MASK
Austrian
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PERSON
QUASI
Mr Meischberger
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PERSON
QUASI
Mr Meischberger
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PERSON
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Mr Meischberger
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DATETIME
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18 July 2000
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ORG
NO_MASK
Supreme Court (Oberster Gerichtshof)
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PERSON
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Mr Meischberger
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PERSON
QUASI
Mr Meischberger
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PERSON
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Mr Meischberger
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DATETIME
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13 September 2000
Vereinigung Bildender Künstler
AUT
CHAMBER
Task: Annotate the document to anonymise the following person: Vereinigung Bildender Künstler