03/02/2020 FURST-PFEIFER v. AUSTRIA - 33677/10 (No violation of Article 8 - Right to respect for private and family life (Article 8-1 : Respect for priva… bodies; (ii) the statements published are true and are directly related to public life; (iii) it can be assumed from the circumstances that the person concerned had agreed to publication, or (iv) the statements were made during a live broadcast, and no employee or representative of the broadcaster failed to exercise proper journalistic care.” 24. If the public prosecutor does not file a bill of indictment, the person who claims to be the victim of an interference with his or her intimate personal sphere may request the opening of criminal proceedings. According to Section 8a § 1 of the Media Act, this person has the legal rights and abilities of a private prosecutor (Privatankläger). 25. According to the Federal Act on the Certifying and Declaration on Oath of Experts and Interpreters, Federal Law Gazette No. 137/1975 (Bundesgesetz über die allgemein beeideten und gerichtlich zertifizierten Sachverständigen und Dolmetscher; Sachverständigenund Dolmetschergesetz, BGBl. 137/1975) authorities shall normally choose an expert from a register held by the President of the Regional Court. According to section 2 § 2 of this law, to be enlisted as an expert for a specific scientific area, one, inter alia, has to be physically and psychologically fit. THE LAW I. JOINDER OF THE APPLICATIONS 26. Given that the two applications concern the same press article, once published on the Internet and once in print by two different companies, and that they share a legal basis, the Court decides to join them (Rule 42 § 1 of the Rules of Court). II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 27. The applicant complained that the authorities had failed to protect her rights under Article 8 of the Convention, as they had dismissed her actions with the courts to be compensated for alleged unlawful publication of facts of her private life. Article 8, in so far as relevant, provides as follows: “1. Everyone has the right to respect for his private ... life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 28. The Government contested that argument. A. Admissibility 29. The Government requested the Court to declare the application inadmissible in accordance with Article 35 of the Convention as the applicant had not lodged a request for retrial under Article 363a of the Code of Criminal Proceedings to redress the alleged breach. Article 363a of the Code of Criminal Proceedings would provide for a retrial in criminal proceedings if the European Court of Human Rights had found a violation of the Convention. The Supreme Court had extended this remedy by analogy, stating that a judgement by the European Court of Human Rights was not a necessary prerequisite for a retrial in criminal proceedings (Supreme Court, judgment of 1 August 2007, no. 13Os135/06m). It was thus possible to challenge a violation of the rights under the Convention in the context of criminal proceedings at the domestic level by applying for a retrial on the basis of Article 363a of the Code of Criminal Proceedings directly to the Supreme Court. 30. The applicant contested this argument. 31. The Court observes that in the case of ATV Privatfernseh-GmbH v. Austria ((dec.) no. 58842/09, 6 October 2015, § 32) it has examined in detail the question whether Article 363a of the Code of www.bailii.org/eu/cases/ECHR/2016/431.html 6/23