EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 26113/95

Wirtschafts -Trend Zeitschriften

Verlagsgesellschaft m.b.H .

against

Austria

REPORT OF THE COMMISSION

(adopted on 16 April 1998)

26113/95 - i -

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-32)              3

A. The particular circumstances of the case

(paras. 16-28)              3

B. Relevant domestic law

(paras. 29-32)              6

III. OPINION OF THE COMMISSION

(paras. 33-54)              7

A. Complaints declared admissible

(para. 33) 7

B. Points at issue

(para. 34) 7

C. As regards Article 10 of the Convention

(paras. 35-46)              7

CONCLUSION

(para. 47) 10

D. As regards Article 6 of the Convention

(paras. 48-51)              10

CONCLUSION

(para. 52) 10

E. Recapitulation

(paras. 53-54)              11

JOINT DISSENTING OPINION OF MRS J. LIDDY,

MM K. HERNDL AND C. BÃŽRSAN 12

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION              13

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a company with limited liability having its seat in Vienna. It is the owner and publisher of " Profil ", a periodical dealing mostly with politics. It was represented before the Commission by Mr. H. Simon, a lawyer practising in Vienna.

3. The application is directed against Austria. The respondent Government were represented by Mr. F. Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

4. The case concerns the applicant company's complaint that a decision of the Vienna Court of Appeal ordering it to publish a judgment to the effect that one passage of an article relating to asylum policy which had been published in " Profil " was defamatory and the order to pay the costs of the proceedings violated its right to freedom of expression and that the proceedings were unfair in that it was prevented from adducing evidence to show that the incriminated value-judgment was not excessive. The applicant company invokes Articles 10 and 6 of the Convention.

B. The proceedings

5. The application was introduced on 20 December 1994 and registered on 4 January 1995.

6. On 26 June 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 4 November 1996 after an extension of the time-limit fixed for this purpose. The applicant company replied on 17 February 1997 also after an extension of the time-limit.

8. On 23 October 1997 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 6 November 1997 and they were invited to submit such further information or observations on the merits as they wished. No such observations were received.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 16 April 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is annexed hereto.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 27 July 1992 the applicant company published an article relating to a forthcoming conference on refugees from former Yugoslavia in " Profil ". It was co-authored by four journalists and started with the following passage:

" Das neue Gesetz kam gerade recht . Das Bundesasylamt kann seit 1. Juni Asylwerber im Eilverfahren abblitzen lassen . Die österreichischen Behörden machen davon reichlich Gebrauch , hinterhältiger und menschenverachtender denn je ."

"The new law came just in time. Since 1 June the Federal Office for Asylum can turn down asylum seekers in summary proceedings. The Austrian authorities make ample use of this possibility, more insidiously and cynically than ever."

17. This introduction was followed by the examples of two Bosnians , whose requests for asylum, which were based on the general situation in their country of origin, had been rejected under provisions of the new law. The first had got a negative decision within three days, the second had obtained a standard letter of the Federal Office of Asylum referring to provisions of the new Asylum Act, according to which an asylum seeker may be refused entry on the ground that he comes from a country in which there is in general no danger of persecution. The article called this, if applied to Bosnians , an incredibly cynical case-law. It observed that the asylum authorities argue in all such cases that a state of civil war does not constitute individual persecution and that the granting of asylum under the Geneva Convention on the Status of Refugees is therefore not justified. The article then stated that the United Nations High Commissioner for Refugees, at the upcoming Geneva summit, was planning to persuade States that refugees from former Yugoslavia have to be treated as refugees under the Convention. Then it turned to the failure of diplomatic initiatives to establish refugee quotas, and the fact that most European countries required Bosnians to obtain a visa. It finally examined the situation in Austria, describing how many Bosnians had already been received and how many could still be accommodated.

18. On 16 February 1993 the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ) discontinued proceedings for defamation against the four authors of the article at issue, which had been opened upon the criminal information ( Anzeige ) of the Federal Office for Asylum and the Federal Ministry for the Interior. It found that it could not be established who had written the incriminated passage.

19. On 9 March 1993, the Vienna Public Prosecutor's Office ( Staatsanwaltschaft ), referring to S. 34 para. 3 of the Media Act, made a request to the Vienna Regional Criminal Court for publication of a judgment ( Urteilsveröffentlichung ), according to which the passage quoted above accused the competent asylum authorities of behaviour of such a nature as to make them contemptible, thereby fulfilling the definition ( objektiver Tatbestand ) of defamation of an authority within the meaning of S. 111 paras. 1 and 2 in conjunction with S. 116 of the Criminal Code ( Strafgesetzbuch ).

20. On 1 July 1993, the Vienna Regional Criminal Court held a hearing to which the applicant company was summoned as the opponent ( Antragsgegner ). The applicant company offered to prove that the impugned statement was true and requested that Mr. P., a lawyer, as well as Mr. B., his trainee, be heard. The court dismissed this request. In these and the following proceedings the applicant company was represented by counsel.

21. Following the hearing the Vienna Regional Criminal Court dismissed the Public Prosecutor's request. It found that the incriminated text fulfilled the definition of defamation. In particular the allegation that the authorities acted "more insidiously and cynically than ever" meant for every sensible reader that the said authorities lacked objectivity, disregarded humanitarian principles and violated human rights. It went far beyond a mere criticism of the authorities and amounted to the accusation, not only of contemptible attitudes, but also of behaviour contrary to honour or morality susceptible of making the authorities at issue contemptible or to lower them in public esteem. However, the court held that the request for publication of a judgment could not be granted separately. It required that a judgment had actually been given, which could either be a conviction of a specific person under S. 34 para. 1  of the Media Act or a confiscation under S. 33 para. 2 of the said Act. As no judgment had been given in the present case, the Public Prosecutor's request had to be dismissed. Thus, it was not necessary to deal with the applicant company's request for the taking of evidence.

22. On 2 May 1994, the Vienna Court of Appeal ( Oberlandesgericht ), upon the appeal on points of law ( Berufung wegen Nichtigkeit ) of the Public Prosecutor's Office, held a hearing in presence of the applicant company's counsel and the Senior Public Prosecutor. The latter referred to the written submissions by the prosecution. Counsel for the applicant company contested them.

23. Following the hearing the Vienna Court of Appeal gave its judgment ordering the applicant company to publish a judgment with the following wording:

" Das Oberlandesgericht Wien hat in der Medienrechtssache gegen die Antragsgegnerin Wirtschafts -Trend Zeitschriftenverlags GesmbH über Antrag der Staatsanwaltschaft Wien in der Berufungsverhandlung vom 2. Mai 1994 zu Recht erkannt : In dem in der Ausgabe des periodischen Druckwerkes " Profil ", Ausgabe Nr . 31 vom 27.7.1992 auf Seite 10 im Rahmen eines hauptsächlich mit " Der Krieg im Konferenzsaal " überschriebenen , von Andy Kaltenbrunner , Eva Menasse , Andreas Weber und Christa Zöchl gemeinschaftlich gezeichneten Artikels wurde durch die abgedruckte Textstelle " Das Bundesasylamt kann seit 1. Juni Asylwerber im Eilverfahren abblitzen lassen . Die österreichischen Behörden machen davon reichlich Gebrauch , hinterhältiger und menschenverachtender denn je " sowohl das Bundesministerium für Inneres als auch das Bundesasylamt jeweils als Behörden in einem Druckwerk verächtlicher Gesinnungen geziehen , wodurch der objektive Tatbestand des Vergehens der öffentlichen Beleidigung ... einer Behörde nach den   111 Abs 1 und 2, 116 StGB hergestellt wurde , wobei Andy Kaltenbrunner , Eva Menasse , Andreas Weber und Christa Zöchl nicht mit der erforderlichen Sicherheit als Artikelverfasser ausgeforscht werden konnten und daher deren Verfolgung nicht durchführbar ist ."

"The Vienna Court of Appeal, at the appeal hearing of 2 May 1994 in the media case against Wirtschafts -Trend Zeitschriftenverlags GesmbH as the opponent, upon the request of the Vienna Public Prosecutor's Office has held as follows: In the article published in " Profil ", issue Nr . 31 of 27 July 1992 on page 10 under the main title "War in the conference room" and co-authored by Andy Kaltenbrunner , Eva Menasse , Andreas Weber and Christa Zöchl , the Federal Ministry for the Interior as well as the Federal Office for Asylum as authorities have been accused in a printed medium of contemptible attitudes by the passage "Since 1 June the Federal Office for Asylum can turn down asylum seekers in summary proceedings. The Austrian authorities make ample use of this possibility, more insidiously and cynically than ever." Thereby the definition of defamation of ... an authority under SS. 111 paras. 1 and 2 and 116 of the Criminal Code has been fulfilled, whereas neither Andy Kaltenbrunner , nor Eva Menasse , Andreas Weber and Christa Zöchl could be established with the necessary certainty as the author and could not therefore be prosecuted."

24. The Court of Appeal noted and confirmed in detail the findings of the Regional Court regarding the defamatory nature of the incriminated passage. However, the Regional Court had wrongly found that the formal requirements for publication of a judgment in separate proceedings under S. 34 para. 3 of the Media Act had not been met. Finally, the Court of Appeal ordered the applicant company to pay the costs of the proceedings.

25. The judgment was served on the applicant company on 28 June 1994.

26. On 11 July 1994 the applicant company published the above judgment in " Profil ".

27. On 23 September 1994 the Procurator General's Office ( Generalprokuratur ) lodged a plea of nullity for the observation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) with the Supreme Court ( Oberster Gerichtshof ). It submitted that the proceedings had not been in accordance with the law in several respects: inter alia , the applicant company had offered to prove the truth of its statements. However, the court of first instance had not taken such evidence as it had dismissed the Public Prosecutor's request for formal reasons. Although the incriminated text constituted a value-judgment which was not susceptible of being proved true the Vienna Court of Appeal should have taken the said evidence. It appeared, in the circumstances of the case, that the authors of the article had based their conclusion on two examples, which - if established - were capable of leading to the impunity of their admittedly harsh criticism or would have enabled the court to judge whether the criticism was excessive. That the text referring to the said examples had not been challenged did not mean that their correctness was undisputed.

28. On 10 November 1994 the Supreme Court dismissed the plea of nullity. It confirmed that the incriminated text contained a value-judgment, which was based on examples of refusals of asylum requests. In the present case, neither the authorities at issue nor the Public Prosecutor's Office had challenged the text referring to these examples. They were, thus, undisputed. The courts had to assume that the underlying facts were correct, when deciding whether the value-judgment, with regard to which proof of truth was inadmissible, was justified or excessive. The Vienna Court of Appeal had correctly found that this value-judgment went beyond the limits of permissible criticism of the asylum authorities.

B. Relevant domestic law

Criminal Code

29. S. 111 of the Criminal Code ( Strafgesetzbuch ) deals with the offence of defamation ( Ãœble Nachrede ). It provides that anyone who accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine (paragraph 1). Anyone, who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamatory statement accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine (paragraph 2). The person making the statement shall not be punished if it is proved to be true.

As regards the offence defined in paragraph 1, he shall not be liable either, if circumstances are established which gave him sufficient reason to assume that the statement was true (paragraph 3).

30. S. 116 provides inter alia that offences under S. 111 are also punishable if they have been directed against an authority and have been committed publicly. S. 111 para. 3 also applies to such offences.

Media Act

31. S. 34 of the Media Act ( Mediengesetz ) deals with the publication of a judgment ( Urteilsveröffentlichung ). It states inter alia that a criminal judgment concerning a media offence has, upon request of the prosecution, to order the publication of those parts of the judgment which are necessary to inform the public about the offence and the conviction (paragraph 1). Upon request of the prosecution, the publication of a judgment has to be ordered in separate proceedings, if statements falling within the definition of an offence ( objektiver Tatbestand ) have been made in the media and the prosecution of a specific person is not possible. In a case where the offender would not be punishable if he adduced evidence to prove that his statements were true, such evidence can also be adduced by the owner of the medium in question (paragraph 3). The time-limit for publication of the judgment starts running when the final judgment has been served (paragraph 4).

32. According to S. 41 of the Media Act the provisions of the Code of Criminal Procedure ( Strafprozeßordnung ) apply to criminal proceedings as well as to separate proceedings under this Act, if not provided otherwise (paragraph 1). In these proceedings the owner of the medium is to be summoned to the trial. He has the rights of the accused, and in particular may put forward any arguments for the defence and may appeal against the judgment (paragraph 5).

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

33. The Commission declared admissible the applicant company's complaint that the decision of the Vienna Court of Appeal ordering it to publish a judgment to the effect that one passage of an article relating to asylum policy which had been published in " Profil " was defamatory and also ordering it to pay the costs of the proceedings violated its right to freedom of expression and the applicant company's complaint that the proceedings leading to the contested decision were unfair in that was prevented from adducing evidence to show that the incriminated value-judgment was not excessive.

B. Points at issue

34. The following points are at issue:

- whether the decision of the Vienna Court of Appeal violated the applicant company's right to freedom of expression as guaranteed by Article 10 (Art. 10) of the Convention;

- whether the proceedings leading to the contested decision were fair as required by Article 6 (Art. 6) of the Convention.

C. As regards Article 10 (Art. 10) of the Convention

35. Article 10 (Art. 10) of the Convention 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.  This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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."

36. The applicant company contests the necessity of the interference with its right to freedom of expression. Recalling that it is the role of the press in a democratic society to contribute to the public debate of controversial issues, it states that the intention of the article was to mobilise public opinion against a newly adopted restrictive asylum policy. Moreover, the applicant company submits that the incriminated value-judgment was based on two examples of Bosnians , whose asylum requests had been rejected. These facts, which were not disputed in the proceedings, enabled the reader to judge whether the value-judgment was excessive or not. Further, the limits of acceptable criticism must be wider not only as regards politicians but also as regards the administrative authorities. The applicant company refutes the Government's argument that the allegations were directed against the staff members of the asylum authorities as private individuals. It points out that the proceedings were not started by any staff member but by the authorities as such. The applicant company finally submits that, in the situation pertaining at the relevant time, there was a need for strongly worded criticism and it was not exaggerated to call the asylum authorities' practise of finding that moslems did not have to fear persecution in Bosnia insidious and cynical.

37. The Government submit that the interference with the applicant company's right to freedom of expression was justified under paragraph 2 of this provision. In particular, they submit that the interference complained of was "necessary". The Government argue that the incriminated remark "the asylum authorities acted more insidiously and cynically than ever" contained a value-judgment which was, however, not based on any proven facts. Given the seriousness of the allegations raised by such comment, the applicant company would have been obliged to carry out particularly detailed and careful investigations. Even if one accepted that the article was meant to contribute to a political debate, the incriminated passage just contained a grossly insulting remark, being mainly directed against the staff members of the asylum authorities and insinuating that they disregarded the law and refused asylum seekers out of personal malignity. Further, the Government submit that unlike politicians, in respect of whom the limits of acceptable criticism may be wider, the staff members of administrative authorities have to be protected as any other private person. Moreover, the authorities as such have to be protected against unfounded insult in order to maintain the confidence of the population which they need to discharge their functions.

38. The Commission finds that the decision of the Vienna Court of Appeal, ordering the applicant company to publish a judgment to the effect that one passage of an article relating to asylum policy which had been published in " Profil " was defamatory, and the order to pay the costs of the proceedings constituted an interference with the applicant company's right to freedom of expression.

39. The interference was prescribed by law, namely S. 34 para. 3 of the Media Act and S. 111 paras. 1 and 2 in conjunction with S. 116 of the Criminal Code.

40. Further, the interference served a legitimate aim, namely to protect the reputation and rights of others.

41. As regards the necessity of the interference, the Commission recalls that, as a matter of general principle, the "necessity" for any restriction on freedom of expression must be convincingly established. Admittedly, it is in the first place for the national authorities to assess whether there is a "pressing social need" for the restriction and, in making their assessment they enjoy a certain margin of appreciation. In the present context, however, the national margin of appreciation is circumscribed in the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10 (Art. 10-2), whether the restriction was proportionate to the legitimate aim pursued (see as a recent authority, Eur. Court HR, Worm v. Austria judgment of 29 August 1997, to be published in Reports 1997, para. 47; see also Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, pp. 28-29, para. 50).

42. The Commission further recalls that freedom of expression is also applicable to "information" or "ideas" that offend shock or disturb the State or any section of the population (Eur. Court HR, Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria judgment of 19 December 1994, Series A no. 302, p. 17, para. 36). These principles are of particular importance as far as the press is concerned. Whilst the press must not overstep the bounds set, inter alia , for the "protection of the reputation of others", it is nevertheless incumbent on it to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting information and ideas: the public has a right to receive them (Eur. Court HR, Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, para. 41; Oberschlick v. Austria judgment of 23 May 1991, Series A no. 204, p. 25, para. 58; Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 23, para. 43). In addition, journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see, mutatis mutandis , Prager and Oberschlick v. Austria judgment of 26 April 1995, Series A no. 313, p. 19, para. 38).

43. The article at issue in the present case was published in the context of the adoption of a new asylum law. It concerned a controversial political issue and contained an admittedly harsh criticism of the asylum authorities' application of the new law, in particular as regards Bosnian asylum seekers fleeing the civil war in former Yugoslavia. The Commission cannot find that the incriminated statement was directed against the staff members of the asylum authorities. Unlike in the Barfod and in the Prager and Oberschlick cases, where individual judges were criticised (Eur. Court HR, Barfod v. Denmark judgment of 22 February 1989, Series A no. 149, pp. 13-14, paras. 30-35; Prager and Oberschlick v. Austria judgment, op. cit., p. 18, paras. 36-37), the article did not single out any individual staff member of the asylum authorities, but rather aimed at criticising the Government's asylum policy in general.

44. In this context it also must be recalled that the limits of permissible criticism are wider with regard to the Government than in relation to a private citizen or even a politician ( Castells v. Spain judgment, op. cit., pp. 23-24, para. 46). Nevertheless, it remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal law nature, intended to react appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith ( Castells v. Spain judgment, loc. cit.). Thus, it remains to be ascertained whether there was a sufficient factual basis for the incriminated statement.

45. The incriminated passage contains a value-judgment which is in itself not susceptible of proof. However, it was followed by two examples of Bosnians whose asylum requests had been rejected under the criticised new law. Moreover, the applicant company made a request for the taking of evidence - namely that two lawyers be heard - aimed at showing that its criticism was not excessive. The Supreme Court, when ruling on the question whether the courts should have taken the evidence, noted that the text concerning the above two cases had remained uncontested and found that the courts, thus, had to assume that the underlying facts were correct when deciding whether the value-judgment was excessive or justified. In these circumstances, it cannot be said that the statement at issue was devoid of foundation. Nor has it been alleged that the allegations were formulated in bad faith.

46. In these circumstances, the Commission finds that the interference with the applicant company's right to freedom of expression was disproportionate to the legitimate aim pursued and, thus, not necessary within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention.

CONCLUSION

47. The Commission concludes, by 12 votes to 3, that in the present case there has been a violation of Article 10 (Art. 10) of the Convention.

D. As regards Article 6 (Art. 6) of the Convention

48. Article 6 para. 1 (Art. 6-1), so far as relevant, reads as follows:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

49. The applicant company submits that the proceedings under S. 34 para. 3 of the Media Act are criminal in nature, as the order for publication of a judgment presupposes a breach of the Criminal Code. Further, the applicant company points out that it requested that two lawyers be heard as to the practice of the asylum authorities. Their statement would have served to clarify whether or not the incriminated comment was justified. The Vienna Regional Criminal Court did not consider it necessary to take the evidence as it dismissed the Public Prosecutor's request for publication of a judgment on formal grounds. However, the Vienna Court of Appeal, when deciding on the merits of the said request, should have heard the two witnesses. As it failed to do so, the proceedings were unfair. In this respect, the applicant company refers to the submissions of the Procurator General's Office in its plea of nullity.

50. The Government submit that the proceedings under S. 34 para. 3 of the Media Act concerned the applicant company's civil rights and obligations. As to the fairness of the proceedings, the Government argue that the applicant company did not repeat its request for the taking of evidence before the Vienna Court of Appeal and, thus, failed to make use of its procedural rights.

51. Having regard to its above considerations under Article 10

(Art. 10) of the Convention, the Commission does not find it necessary to examine the applicant company's complaint under Article 6 (Art. 6) of the Convention.

CONCLUSION

52. The Commission concludes, by 12 votes to 3, that it is not necessary to examine seperately whether there has been a violation of Article 6 (Art. 6) of the Convention.

E. Recapitulation

53. The Commission concludes, by 12 votes to 3, that there has been a violation of Article 10 (Art. 10) of the Convention.

54. The Commission concludes, by 12 votes to 3, that it is not necessary to examine seperately whether there has been a violation of Article 6 (Art. 6) of the Convention.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

   to the First Chamber of the First Chamber

(Or. English)

JOINT DISSENTING OPINION OF MRS J. LIDDY,

MM K. HERNDL AND C. BÃŽRSAN

We would have agreed with the findings of the majority but for the fact that we do not consider that there is jurisdictional competence to do so. Under Article 26 of the Convention we may only deal with an application after all domestic remedies have been exhausted.

In fact, at no stage did the applicant raise even in substance before the national courts the potential violation of its freedom of expression guaranteed under the Convention, which forms part of Austrian law at the level of Constitutional law. This requirement under Article 26 of the Convention applies even when the subject-matter of the domestic proceedings manifestly concerns issues such as family life or freedom of expression. Arguments based solely on other elements of domestic law which do not raise the matter of freedom of expression do not suffice in proceedings directed against writings that are considered to be defamatory or to disturb the public peace (see, mutatis mutandis , Eur. Court HR, Ahmet Sadik v. Greece judgment of 15 November 1996, Reports 1996-V, paras. 32 and 33).

Likewise, the applicant company failed to repeat its evidentiary motion before the Vienna Court of Appeal. Insofar as it challenges the fairness of the proceedings by reason of the failure by the courts to hear its two witnesses, Article 26 requires that the complaints intended to be made subsequently in Strasbourg should have been made before the appropriate domestic courts and in compliance with the formal requirements and time-limits laid down in domestic law. Use should be made of remedies to challenge decisions already given ( Cardot v. France judgment of 19 March 1991, Series A no. 200). We do not consider that the fact that the Vienna Regional Criminal Court dismissed the Public Prosecutor's Request at first instance is a circumstance that exempted the applicant from repeating its request for the taking of evidence at the relevant time, that is, before the Vienna Court of Appeal.

Neither do we consider that the Supreme Court's dismissal of the Procurator General's plea of nullity enables us to say that the applicant would have had no chance of success had it repeated its evidentiary motion before the Vienna Court of Appeal. As noted in the Commission's decision of admissibility, it appears that there was no prior case-law on this question when the Supreme Court gave judgment. It is not possible to know what were the considerations present in the minds of the judges of the Vienna Court of Appeal when they gave judgment. Their reasoning is succinct to a degree which makes it difficult to say that they would have rejected any point about the hearing of the applicant's witnesses had such point been raised before them.

Accordingly, we do not consider that the applicant provided the domestic courts with the appropriate opportunity to remedy the alleged breaches of the Convention and for these reasons do not consider that there was the necessary jurisdictional competence to find any violation.