EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 24773/94

Andreas Wabl

against

Austria

REPORT OF THE COMMISSION

(adopted on 4 March 1998)

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. 16-36) 3

A. The particular circumstances of the case

(paras. 16-34) 3

B. Relevant domestic law

(paras. 35-36) 8

III. OPINION OF THE COMMISSION

(paras. 37-61) 10

A. Complaint declared admissible

(para. 37) 10

B. Point at issue

(para. 38) 10

C. As regards Article 10 of the Convention

(paras. 39-60) 10

CONCLUSION

(para. 61) 13

DISSENTING OPINION OF Mr L. LOUCAIDES JOINED BY

MM M.P. PELLONPÄÄ, E. BUSUTTIL, C.L. ROZAKIS,

Mrs J. LIDDY AND Mr A. PERENI? 14

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 15

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 an Austrian national, born in 1951 and resident at

Großklein.  He was represented before the Commission by Mr T. Prader, a lawyer

practising in Vienna.

3. The application is directed against Austria.  The respondent Government

were represented by Mr F. Cede, Ambassador, Agent.

4. The case concerns a preliminary injunction order against the applicant

prohibiting him from repeating the statement that a particular article in the

"Kronen-Zeitung" ("Steirerkrone") of 14 August 1988 amounted to "Nazi-

journalism", and similar statements.  The applicant invokes Article 10 of the

Convention.

B. The proceedings

5. The application was introduced on 7 July and registered on 4 August 1994.

6. On 12 April 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 26 July 1996 after an

extension of the time-limit fixed for this purpose.  The applicant replied on 18

October 1996.

8. On 10 April 1997 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the

parties on 24 April 1997 and they were invited to submit such further

information or observations on the merits as they wished.  The applicant

submitted observations on 22 May 1997.

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

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENI?

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 4 March 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. In June 1988 the applicant participated in a protest campaign against the

stationing of interceptor fighter planes (Abfangjäger) near the Graz airport.

In the course of a police action, Police Officer Fellner charged the applicant

with having scratched his right arm, and he subsequently requested that the

applicant be prosecuted for having caused grave bodily harm (schwere

Körperverletzung).  In July 1988 the Graz Public Prosecutor's Office

(Staatsanwaltschaft) informed the applicant that the investigation proceedings

against him had been discontinued.

17. On 14 August 1988 the "Neue Kronen-Zeitung - Steirerkrone", issued in

Graz, published the following article, under the title "Styrian Green politician

and member of Parliament injured civil servant/Request for him to be handed over

on account of the risk of infection" ("Steirischer Grün-Abgeordneter verletzte

Beamten/Jetzt Auslieferungs-klage wegen Ansteckungsgefahr") and with the

headline "Police Officer claims: "AIDS test for Wabl!" ("Gendarm fordert: "AIDS-

Test für Wabl!").  The article read as follows:

"Dramatic contribution to the debate on the privilege of members of

Parliament: Police Officer Walter Fellner (34) from Aflenz not only requests

that Styrian Green politician and member of Parliament Andreas Wabl be handed

over, but also that the member of Parliament - who is immune because of

privileges, be subjected to an AIDS-test.  Reason: Wabl scratched Fellner and

drew blood.

'I don't dare to touch my wife and I can't even kiss my children' -

Since he has been involved in a police action against the opponents of the

[planes] the family life of Police Officer Walter Fellner is ruined.  The fear

of the immune deficiency syndrome paralyses the social relations and the sexual

life of the father of three.

The explosive background: On 10 June, shortly after the [planes] had

been stationed, the Police Officer, a senior Police Inspector, participated in a

police action in the area of a camp of opponents of the [planes] at Graz-

Thalerhof airport.  On this occasion, 'friction' developed between the

demonstrators and the police.  The result of an altercation between Fellner and

the Green politician Andreas Wabl was two bleeding scratches, one five, the

other ten, centimetres long, to Fellner's right lower arm.  Two witnesses and

the local medical officer confirmed the injuries.

Fellner does not claim that the immune member of Parliament is

suffering from the immune deficiency syndrome, but, as the Inspector told the

'Steirerkrone': 'The member of Parliament had been in contact with the other

demonstrators and they were not particularly clean.'  Criminal proceedings

against Wabl on a charge of causing bodily injury has been discontinued on the

ground of the triviality of the injury.  Fellner nevertheless requests for the

member of Parliament to be handed over.

'Mr. Wabl has to undergo an AIDS-test, as he might have infected me',

states Fellner and thereby asks the Green 'scratcher' to have a blood sample

taken for the purposes of an immune deficiency syndrome test.  Wabl's victim

also intends to claim compensation for moral damages.  As regards his claims for

compensation, Fellner is represented by the Graz lawyer Candidus Cortolezis, who

is known to be close to the opponents of the  [planes] and not to the

authorities who guard the [planes]."

"Dramatischer Beitrag zur Debatte um die Abgeordneten-Immunität: Der

Aflenzer Gendarmeriebeamte Walter Fellner (34) fordert neben der 'Auslieferung'

des steirischen Grün-Nationalrates Andreas Wabl wegen Körperverletzung auch die

Durchführung eines AIDS-Tests beim immunen Mandatar.  Grund: Fellner war von

Wabl blutiggekratzt worden.

'I trau mi net mehr, mei Frau anz'greifen, und meine drei Kinder

kann i a net amoi mehr obussln' - Seit einem Einsatz gegen Draken-Gegner in Graz

ist das Familienleben des Gendarmen Walter Fellner aus Aflenz zerstört.  Die

Angst vor der Immunschwäche AIDS lähmt die zwischenmenschlichen Beziehungen und

das Liebesleben des dreifachen Familienvaters.

Die brisante Vorgeschichte: Am 10. Juni, kurze Zeit nach der Draken-

Stationierung, war der Gendarmeriebeamte im Rang eines Revierinspektors im

Bereich des Draken-Wiederstandscamps am Grazer Flughafen Thalerhof als

Ordnungshüter eingesetzt gewesen.  Dabei war es zu 'Reibereien' zwischen

Demonstranten und der Exekutive gekommen.  Die Folgen eines Handgemenges

zwischen Fellner und dem grünen Parlamentarier Andreas Wabl: zwei blutende

Kratzer, der eine fünf, der andere zehn Zentimeter lang, am rechten Unterarm

Fellners.  Zwei Zeugen und der Distriktsarzt bestätigten die Verletzungen.

Fellner will dem immunen Nationalrat zwar nicht unterstellen, daß er

mit der Immunschwäche infiziert sei, aber, so der Inspektor zur 'Steirerkrone':

'Der Abgeordnete hat zuvor mit anderen Aktivisten Kontakt ghobt, und die worn

net unbedingt sauber.'  Eine Anzeige wegen Körperverletzung gegen Wabl ist von

der Staatsanwaltschaft mittlerweile wegen Geringfügigkeit zurückgelegt worden,

Fellner verlangt aber dennoch die Auslieferung des Mandatars.

'Der Herr Wabl muß sich einer Aids-Untersuchung unterziehen, er

könnte mich ja angsteckt hobn', fordert Fellner den grünen 'Kratzer' zur

Blutabnahme mit anschließendem Immunschwächetest auf.  Für den erlittenen

seelischen Schaden will das Wabl-Opfer Schmerzensgeld einklagen.  Die Fellner-

Forderungen vertritt dabei ausgerechnet der Grazer Rechtsanwalt Dr. Candidus

Cortolezis, der bisher bekanntlich den Draken-Gegnern nahe stand und nicht der

(drakenbewachenden) Exekutive."

18. This article, reproduced on pages 8 and 9 of the newspaper, was

accompanied by a photograph showing the applicant and two police officers with

the sub-title "AIDS-test for the privileged member of Parliament? Wabl (centre)

in an altercation with the police." ("AIDS-Test für den immunen Abgeordneten?

Wabl (Mitte) beim Handgemenge mit der Exekutive.").

19. The article was announced on the front page as follows:

"Green politician Wabl should have an AIDS test.

The Police Officer Walter Fellner from Aflenz asks Green member of

Parliament Andreas Wabl to undergo an AIDS-test.  Wabl scratched Fellner and

drew blood in the course of an altercation (pages 8/9)."

"Grüner Wabl soll nun zu Aids-Test.

Der Aflenzer Gendarm Walter Fellner verlangt, daß sich der Grün-

Parlamentarier Andreas Wabl einem Aids-Test unterzieht.  Wabl hatte Fellner bei

einem Handgemenge blutig gekratzt (Seiten 8/9)."

20. The applicant requested the author of the article in question, who had not

contacted him prior to its publication, to publish a rectification as well as a

statement drafted by the applicant.

21. The text of this statement, published in the "Steirerkrone" on 17 August

1988, read as follows:

"In the context of the report on Fellner's request for an AIDS-test,

the 'Steierkrone' wishes to clarify that, when mentioning the disease AIDS, it

never intended to defame, for personal or political reasons, the member of

Parliament Andreas Wabl.  We wish to apologise for any gross claims which were

not appropriate to our standards of fairness and our reputation as journalists."

"Die 'Steirerkrone' möchte im Zusammenhang mit dem Bericht über die

Aids-Test-Forderung von Fellner klarstellen, daß es nie beabsichtigt war, NR-

Abg. Andreas Wabl mit der Krankheit AIDS persönlich oder politisch zu

diffamieren.  Für grobe Unterstellungen, die unserer selbst auferlegten Fairneß

und journalistischen Ehre nicht angemessen waren, möchten wir uns

entschuldigen."

22. This statement was printed as an annex to an article with the headline

"Defamation of Green politician not intended/hygiene expert Möse reassures: 'No

AIDS-infection from scratches!'" ("Diffamierung von Grün-Abgeordneten nicht

beabsichtigt/Hygieniker Möse beruhigt: 'Kein AIDS-Fall durch Kratzer!'"), with

the following text:

"On Tuesday, the Graz 'hygiene-king', university professor Josef

Möse, reassured the Police Officer Walter Fellner from Aflenz, who feared an

infection with AIDS from scratches which were allegedly inflicted on him by

Green member of Parliament Andreas Wabl.  Möse: 'AIDS cannot be caught by

scratches.'

Möse, President of the Austrian AIDS Committee, informed the

'Steirerkrone': 'Nobody has anything to fear from a simple scratch.  Infection

is impossible.'  The Head of the Graz Institute for Hygiene immediately offered

the senior Police Inspector and his family 'a discussion to explain matters

could be arranged at any time'.

As reported Fellner feared that he had been infected with the AIDS

virus by two scratches to his right lower arm, which were inflicted on him in

the course of an altercation with the Green member of Parliament Andreas Wabl.

Criminal proceedings on a charges of causing bodily harm (superficial reddening)

have been discontinued by the Graz Public Prosecutor's Office on the ground that

the factual elements of the offence were not present."

"Der Grazer 'Hygiene-Papst', Univ.-Prof. Dr. Josef Möse, beruhigte

am Dienstag den Aflenzer Gendarmen Walter Fellner, der befürchtete, durch

Kratzer mit AIDS infiziert worden zu sein, die ihm der grüne Abgeordnete Andreas

Wabl bei einer Draken-Demonstration angeblich zugefügt hatte. Möse: 'Durch

Kratzer kann AIDS nicht übertragen werden.'

Möse, er ist Vorsitzender der österreichischen AIDS-Kommission, zur

'Steirerkrone': 'Vor einem einfachen Kratzer braucht man keine Angst zu haben.

Eine Ansteckung ist nicht möglich.'  Der Chef des Grazer Hygiene-Institutes

erklärte sich sofort bereit, mit dem Revierinspektor und seiner Familie

'jederzeit ein aufklärendes Gespräch zu führen'.

Wie berichtet, hatte Fellner befürchtet, durch zwei Kratzer am

rechten Unterarm, die ihm bei einem Handgemenge mit dem grünen

Nationalratsabgeordneten Andreas Wabl zugefügt worden waren, möglicherweise mit

dem AIDS-Virus infiziert worden zu sein.  Eine Anzeige wegen Körperverletzung

(oberflächliche Rötungen) wurde von der Staatsanwaltschaft Graz wegen mangelnden

Tatbestandes bereits zurückgelegt."

23. The article further referred to the applicant's claims that the matter was

a political campaign intending to bring him into disrepute.

24. Also on 17 August 1988 the applicant, on the occasion of a press

conference, commented upon the events of 10 June 1988 and in particular the

above articles of 14 and 17 August 1988.  He informed the press about his

consideration regarding the background of the events which he considered to be a

"political character assassination" ("politischer Rufmord").  When asked by a

journalist how he felt about the above events, the applicant replied as follows:

"This is Nazi-journalism."

"Das ist Nazi-Journalismus."

25. This statement was quoted in the Austrian media.

26. On 29 August 1988 the company publishing the newspaper "Kronen-Zeitung"

brought injunction proceedings under S. 1330 of the Civil Code (Allgemeines

Bürgerliches Gesetzbuch) against the applicant with the Graz Regional Civil

Court (Landesgericht für Zivilrechtssachen).  It requested that the applicant be

prohibited from repeating the statement according to which the contents of the

"Kronen-Zeitung" were "Nazi-journalism" and to arrange for a rectification.

27. In the context of private prosecution proceedings instituted by the

applicant in respect of the article of 14 August 1988, the Vienna Regional

Criminal Court (Landesgericht für Strafsachen), as confirmed by the Vienna Court

of Appeal on 5 February 1990, convicted the company publishing the "Kronen-

Zeitung" of defamation, pursuant to the Media Act (Mediengesetz), and ordered it

to pay compensation to the applicant.

28. On 5 February 1993 the Graz Regional Civil Court dismissed the injunction

claims.  The Court observed that S. 1330 of the Civil Code provided for a

prohibitory injunction in respect of any statement of facts, which jeopardized

someone's reputation, gain or livelihood, the untruth of which was known or must

have been known.  Considering all circumstances and in particular the background

of the press conference and the impugned statement, the Court found that the

applicant had used the expression "Nazi-journalism" as a value-judgment.  The

Court based its judgment on the statements made by the applicant and various

witnesses as well as on an expert opinion regarding the interpretation of the

expression "Nazi-journalism".

29. On 30 June 1993 the Graz Court of Appeal dismissed the plaintiff's appeal

(Berufung).  The Court of Appeal confirmed the findings of the first instance

court that the impugned statement was a value-judgment.  Furthermore, even

assuming that the impugned statement was an untrue statement of facts, the

plaintiff had failed to show that the applicant had known or should have known

that this statement was untrue.  In this respect, the Court of Appeal referred

to the expert opinion according to which the defamation of political opponents

with an alleged illness was an essential element of the journalism under the

Nazi regime.  Furthermore, even assuming that the impugned statement amounted to

an insult, it was justified as a reaction to the plaintiff's previous

publication on the applicant.

30. On 14 December 1993 the Austrian Supreme Court (Oberster Gerichtshof),

upon the plaintiff's further appeal (außerordentliche Revision), amended the

Appeal Court's decision and issued a preliminary injunction order against the

applicant prohibiting him from repeating the statement that the article "Styrian

Green-Party politician and member of Parliament injured civil servant/Request

for him to be handed over on account of the risk of infection, Police Officer

claims: 'AIDS test for Wabl!'" in the "Kronen-Zeitung" ("Steirerkrone") of 14

August 1988 amounted to "Nazi-journalism", and similar statements.

31. According to the Supreme Court, S. 1330 para. 2 of the Civil Code

presupposed facts, i.e. circumstances the existence of which could be

demonstrated.  If a value judgment was based on particular facts it comprised a

statement of facts.  The question whether or not "facts" had been disseminated

had to be examined against the general context of the impugned statement, as

understood by the man in the street.  In this respect the interpretation least

favorable to the offender had to be placed on the statement.  Objective

criticism presupposed that the value-judgment corresponded to unchallenged or

proven facts.  The Supreme Court further observed that under S. 1330 para. 2 of

the Civil Code the plaintiff had to prove that the discrediting statement was

untrue, unless the statement also amounted to an insult; in the latter case, the

offender had to prove the truth of the statement concerned.  The question

whether or not a statement constituted an unlawful interference with a person's

reputation could only be assessed by balancing all relevant circumstances.

32. The Supreme Court found that the applicant's reproach of "Nazi-journalism"

had concerned an article published by the plaintiff, and had been raised on the

occasion of a press conference concerning the plaintiff's defamatory report in

relation to the applicant.  The impugned statement had been an answer to a

question put by one of the journalists, and, in the circumstances, the Court had

no doubts that this statement only related to the particular article of 14

August 1988.  In this context, the applicant's statement was a value-judgment.

In any event, there was no indication as to how the journalist had understood

the applicant's reproach "Nazi-journalism".

33. The Supreme Court considered further whether this value-judgment fell

within the scope of S. 1330 para. 1 of the Civil Code.  The plaintiff could

claim a prohibitory injunction under this provision, if, considering all

circumstances, the plaintiff's interests were not less important than the

applicant's interests.  The Supreme Court found that the plaintiff had an

interest not to be associated with the National Socialism.  The reproach "Nazi-

journalism" would be close to a charge of criminal behaviour under the National

Socialism Prohibition Act (Verbotsgesetz).  The Supreme Court also noted that

the applicant's statement was a reaction to an article published by the

plaintiff which contained the assumption that the applicant was suffering from

the immune deficiency syndrome, i.e. a contagious disease, which provokes fear

and antipathy amongst the majority of the population.  His indignation about the

defamatory reporting might appear understandable but could not justify the

reproach that the plaintiff's way of reporting came at least close to criminal

behaviour, in particular as he himself could have brought proceedings under S.

1330 of the Civil Code against the plaintiff.  Balancing all circumstances, the

Supreme Court concluded that the applicant's interests did not outweigh the

plaintiff's interests.  The right to freedom of expression could not justify

such a serious attack on the plaintiff's reputation.  For the same reasons, the

impugned statement could not be regarded as permissible political criticism,

which is supposed to provoke or shock.  The Supreme Court also noted that,

having regard to the applicant's statements in the course of the proceedings,

there was a risk that he would repeat the statement in question.

34. This decision was served on the applicant's counsel on 8 February 1994.

B. Relevant domestic law

35. S. 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch)

provides as follows:

"(1) Anybody who, due to defamation, suffers a real damage or loss of

profit, may claim for compensation.

(2) The same applies if anyone is disseminating facts, which jeopardize

someone's reputation, gain or livelihood, the untruth of which was known or must

have been known to him.  In this case there is also a right to claim a

revocation and the publication thereof..."

"(1) Wenn jemandem durch Ehrenbeleidigung ein wirklicher Schaden oder

Entgang des Gewinnes verursacht worden ist, so ist er berechtigt, den Ersatz zu

fordern.

(2) Dies gilt auch, wenn jemand Tatsachen verbreitet, die den Kredit, den

Erwerb oder das Fortkommen eines anderen gefährden und deren Unwahrheit er

kannte oder kennen mußte. In diesem Fall kann auch der Widerruf und die

Veröffentlichung desselben verlangt werden..."

activities inspired by National Socialist ideas, i. e. the National Socialism

Prohibition Act (Verbotsgesetz).  In the State Treaty (Staatsvertrag) of 1955,

confirmed its undertaking to prohibit any such activities.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

37. The Commission has declared admissible the applicant's complaint that the

preliminary injunction order prohibiting him from repeating the statement that a

particular article published in an Austrian newspaper amounted to "Nazi-

journalism", and similar statements, amounted to a violation of his right to

freedom of expression.

B. Point at issue

38. The issue to be determined is whether there has been a violation of

Article 10 (Art. 10) of the Convention.

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

39. The applicant relies on Article 10 (Art. 10) which, so far as relevant,

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..."

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,

..., for the protection of the reputation or rights of others, ..."

40. The applicant considers that the Austrian Supreme Court decision

prohibiting him from repeating that a particular article published in the

"Kronen-Zeitung" amounted to "Nazi-journalism" was an unjustified interference

with his right to freedom of expression.  He submits that, in a democratic

society, a critical discussion should be permissible.  Moreover, given his

position as a member of parliament, there should have been no interference with

his criticism of the "Neuen Kronen Zeitung", even if formulated in a barbed

manner.

applicant's right under Article 10 para. 1 (Art. 10-1), however, that this

interference was justified under paragraph 2 of this provision.  They argue in

particular that this measure was necessary in a democratic society for the

protection of the reputation and the rights of others.  Referring to the case-

law of the Convention organs, they submit that the applicant went beyond the

limits of permissible statements in a political debate.  Against the particular

historical background, it is imperative to afford effective legal protection

against unjustified accusations of expressing Nazi attitudes.  Thus the Austrian

courts generally regarded such accusations as defamatory.  Even taking the

background of the applicant's statement into account, his comment was excessive.

Moreover, the applicant's statement did not contribute to a general debate on

Austrian journalism, but was a biased and insulting reaction to an article

defaming him.

interference with the applicant's right to freedom of expression within the

meaning of Article 10 para. 1 (Art. 10-1).  Such interference is in breach of

Article 10 (Art. 10), unless it is justified under paragraph 2 of Article 10

(Art. 10-2), namely prescribed by law and necessary in a democratic society for

one of the aims mentioned in this paragraph.

43. The Commission notes that the injunction was in accordance with the law,

as it was based on S. 1330 para. 1 of the Austrian Civil Code.  Further, the

injunction served a legitimate aim, namely the protection of the rights and the

reputation of others, namely of the company publishing the newspaper in

question.

necessity of the interference.

45. The Commission recalls that the notion of necessity implies a pressing

social need. The Contracting States enjoy a margin of appreciation in this

respect, but this goes hand in hand with a European supervision which is more or

less extensive depending on the circumstances.  In reviewing under Article 10

(Art. 10) the decisions taken by the national authorities pursuant to their

margin of appreciation, the Convention organs have to determine, in the light of

the case as a whole, whether the reasons adduced by them to justify the

interference are "relevant and sufficient" (cf. Eur. Court HR, Sunday Times (no.

2) v. United Kingdom judgment of 26 November 1991, Series A no. 217, pp. 28-29,

para. 50; Worm v. Austria judgment of 29 August 1997, para. 47, to be published

in Reports of Judgments and Decisions 1997).

46. In the present case, the requirements of protecting the reputation and

rights of others, namely the company publishing the "Kronen-Zeitung", must be

weighed against the applicant's freedom to criticise, by the impugned statement,

the style of a particular article published in the newspaper concerned.

47. The Commission notes that the Graz Regional Civil Court, in its decision

of 5 February 1993, and the Graz Court of Appeal, in its decision of 30 June

1993, had dismissed the action brought by the publishing house.

48. These decisions were amended by the Austrian Supreme Court which, in its

decision of 14 December 1993, issued a prohibitory injunction against the

applicant with a view to protecting the publishing house against a serious

reproach of almost criminal behaviour.

49.  The Commission considers that the reasons given by the Supreme Court were

"relevant" with regard to the aim pursued.  It remains to be ascertained whether

they were also "sufficient" for that same purpose.

50. In assessing this question, the Commission recalls that, subject to

paragraph 2 of Article 10 (Art. 10-2) of the Convention, freedom of expression

is applicable not only to "information" and "ideas" that are favourably received

or regarded as inoffensive or as a matter of indifference, but also to those

that offend, shock or disturb (cf. Eur. Court HR, Oberschlick (2) v. Austria

judgment of 1 July 1997, para. 29, to be published in Reports of Judgments and

Decisions 1997).

51. The Commission notes that the applicant was prohibited from reproaching

the publishing house of the "Kronen-Zeitung" with "Nazi-journalism", a criticism

levelled in respect of an article published in the "Kronen-Zeitung" on 14 August

1988.

52. In the Supreme Court's view, the applicant's indignation about defamatory

reporting, including the supposition that he was suffering from the immune

deficiency syndrome, i.e. a contagious disease provoking fear and antipathy in

great parts of the population, could not justify the reproach that the

plaintiff's way of reporting came at least close to criminal behaviour.  In this

respect, the Supreme Court also referred to the legal remedies available to the

applicant.

53. The Commission has considered this decision in the light of the case as a

whole, in particular the circumstances in which the applicant made his statement

(cf. Eur. Court HR, Oberschlick (2) judgment, op. cit., para. 31).

54. The Commission finds that the Supreme Court, in its detailed reasoning,

duly balanced the applicant's interest in expressing his opinion against the

necessity, in a democratic society, to protect the reputation and rights of

others, in this case a publishing house, against an accusation of Nazi working

methods which it regarded as close to a charge of criminal behaviour.

55. In this context, the Commission has borne in mind that a special stigma

attaches to the performance of activities inspired by National Socialist ideas.

Pursuant to constitutional provisions and legislation introduced in Austria

after the Second World War, it is a criminal offence to perform such activities.

56. Moreover, it should be remembered that the article offending the applicant

was published by the press in pursuance of its task to impart information and

ideas on political issues and on other matters of general interest.  In the

present case, the applicant had participated in a protest campaign on a matter

of general concern and, as a politician and member of the Austrian Parliament,

thereby attracted public attention.

57. As regards the nature of the reporting on the applicant, the Commission

recalls that a politician inevitably and knowingly lays himself open to close

scrutiny of his every word and deed by both journalists and the public at large,

and he must display a greater degree of tolerance (cf. Eur. Court HR,

Oberschlick (2) judgment, op. cit., para. 29).  In addition, journalistic

freedom also covers possible recourse to a degree of exaggeration, or even

provocation (cf. Eur. Court HR, De Haes and Gijsels v. Belgium judgment of 24

February 1997, para. 47, to be published in Reports of Judgments and Decisions

1997).

58. The Commission, having regard also to the findings in the opinion of the

expert on journalism under the Nazi regime which had been obtained in the

proceedings before the lower courts, considers that the contents and style of

the article published in the "Kronen-Zeitung" were exaggerated and provocative.

Its publication, therefore, may have been an understandable ground for

indignation.  However, when the applicant used the expression "Nazi-journalism",

the situation had changed considerably in that the publishing house had

published a rectification, including a statement on the matter drafted by the

applicant himself.  Moreover, the applicant, as stated by the Supreme Court,

could himself have brought injunction proceedings under S. 1330 of the Civil

Code.  In this context, the Commission also notes that the applicant availed

himself of the possibility of private prosecution proceedings against the

company publishing the newspaper "Kronen-Zeitung" and that the publishing house

was eventually convicted of defamation, pursuant to the Media Act.

59. Finally, the Commission observes that the injunction issued by the Supreme

Court was confined to prohibiting the applicant from repeating the statement

that the article of 14 August 1988 amounted to "Nazi-journalism", or the making

of similar statements.  The applicant thus retained the right to voice his

opinion regarding the reporting by the "Kronen-Zeitung" in other terms.

60. In these circumstances, the Commission finds that it cannot be said that

the contested decision went beyond the margin of appreciation left to the

national authorities.

CONCLUSION

61. The Commission concludes, by 10 votes to 6, that in the present case there

has been no violation of Article 10 (Art. 10) of the Convention.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

   to the First Chamber of the First Chamber

(Or. English)

DISSENTING OPINION OF Mr L. LOUCAIDES

JOINED BY MM M.P. PELLONPÄÄ, E. BUSUTTIL,

C.L. ROZAKIS, Mrs J. LIDDY AND Mr A. PERENI?

I am unable to agree with the majority in this case. I am of the view that

the judgment of the Austrian Supreme Court prohibiting the applicant from

repeating that an article suggesting that he was suffering from Aids and that he

had inflicted this disease on a policeman, amounted to "Nazi-journalism", was an

unjustified interference with his right to freedom of expression. In coming to

this conclusion I took into account the following:

(a) That the article in question was defamatory of the applicant and it was so

found by the Austrian Courts. It is true that an apology was published at some

stage by the authors of the article in question which however did not clearly

retract from the defamatory nature of the article. What is more important is

that the apology in question was accompanied again by a text repeating the

defamatory suggestion that the applicant was suffering from Aids.

(b) I believe that in a democratic society one is entitled to defend himself

against a defamatory attack and that in principle any reply on his part which is

within the limits of defence and is fairly relevant to the attack should be an

acceptable and legitimate method of reaction. In fact one can draw an analogy

between the criminal law of self-defence and one's right to defend oneself

against defamatory attacks.

(c) In this case the applicant, a politician and member of Parliament became the

object of an unfair and libelous attack by a newspaper attributing to him

indirectly, no more no less, the disease of Aids. On the occasion of a press

conference he commented upon the article in question and he confined himself to

the remark that it was "Nazi-journalism" when he was asked by a journalist how

he felt about the whole incident. Expert evidence was produced before the Court

of Appeal to the effect that the defamation of political opponents with an

alleged illness was an essential element of the journalism under Nazi regime.

(d) None of the Austrian Courts found that the reproach with "Nazi-journalism"

amounted to a charge of criminal behaviour under the relevant Austrian

legislation.

(e) As a matter of fairness and bearing in mind the demands of tolerance and

broadmindedness without which there is no democratic society, a person in the

position of applicant, i.e. a democratically elected politician with a mandate

to fullfil who became the target of a public defamatory attack should not be

prohibited from defending himself in the way he did. The demands of a democratic

political debate require that politicians should not be in a more

disadvantageous position than the press and that they should be allowed

sufficient latitude to answer back to press attacks.