Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 20834/92

Gerhard Oberschlick

against

Austria

REPORT OF THE COMMISSION

(adopted on 29 November 1995)

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. 16-29) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 30-32) . . . . . . . . . . . . . . . . . . . . . 6

III. OPINION OF THE COMMISSION

(paras. 33-47). . . . . . . . . . . . . . . . . . . . . . . . 7

A. Complaint declared admissible

(para. 33) . . . . . . . . . . . . . . . . . . . . . . . 7

B. Point at issue

(para. 34) . . . . . . . . . . . . . . . . . . . . . . . 7

C. Article 10 of the Convention

(paras. 35-46) . . . . . . . . . . . . . . . . . . . . . 7

CONCLUSION

(para. 47) . . . . . . . . . . . . . . . . . . . . . . . 9

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . .10

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 citizen, born in 1942 and resident

in Vienna.

3. The application is directed against Austria. The respondent

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

Head of the International Law Department at the Federal Ministry of

Foreign Affairs.

4. The case concerns the applicant's conviction of having insulted

a politician. The applicant alleges violation of his right to freedom

of expression and invokes Article 10 of the Convention.

B. The proceedings

5. The application was introduced on 15 September 1992 and

registered on 23 October 1992.

6. On 2 March 1994 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 16 June 1994

after one extension of the time-limit fixed for this purpose. The

applicant replied on 29 August 1994 after one extension of the

time-limit.

8. On 6 April 1995 the Commission declared admissible the

applicant's complaint under Article 10 of the Convention. It declared

inadmissible the remainder of the application.

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

to the parties on 26 April 1995 and they were invited to submit such

further information or observations on the merits as they wished. No

such observations were submitted.

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:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

12. The text of this Report was adopted on 29 November 1995 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. The applicant, a journalist, was at the relevant time editor of

the periodical "Forum" - "Internationale Zeitschrift für kulturelle

Freiheit, politische Gleichheit und solidarische Arbeit", i.e. an

international magazine for cultural freedom, political equality and

solidarity.

17. On 7 October 1990, on the occasion of a "peace-celebration" at

the Ulrichsberg, Mr. Haider, leader of the Austrian Freedom Party (FPÖ)

and then Regional Governor (Landeshauptmann) of Carinthia, gave a

speech which glorified the role of the "generation of soldiers" in

World War II. According to Mr. Haider, all soldiers, even those in the

German army, had fought for peace and freedom. Thus, nobody should

differentiate between "good" and "bad" soldiers of this generation, but

should rather be grateful to all of them, as they had founded and built

today's democracy and affluent society. He then criticized an Austrian

writer, who had provoked anger for having, in his eyes, disparaged all

those killed in World War II. In this speech he then continued:

"Meine Damen und Herren, geistige Freiheit ist in einer Demo-

kratie etwas Selbstverständliches, aber sie findet dort ihre

Grenzen, wo Menschen jene geistige Freiheit in Anspruch nehmen,

die sie nie bekommen hätten, hätten nicht andere für sie den Kopf

hingehalten, daß sie heute in Demokratie und Freiheit leben

können."

"Ladies and Gentlemen, freedom of opinion is taken for granted

in a democracy, but it finds its limits where people lay claim

to that freedom who never would have got it, if others had not

risked their heads for them so that they may now live in

democracy and freedom."

18. This speech was reproduced verbatim in the applicant's periodical

and commented on by the applicant, and, inter alia, the aforementioned

Austrian writer. The applicant's commentary, entitled "P.S.: 'Trottel'

statt 'Nazi'" ("P.S.: 'Idiot' instead of 'Nazi'"), which was reproduced

at the end of the speech, reads as follows:

"Ich werde Jörg Haider erstens keinen Nazi nennen, sondern

zweitens einen Trottel. Dies rechtfertige ich wie folgt:

Einleuchtend hat L. ... mich überzeugt, daß es Jörg Haider eher

nütze, wenn man ihn einen Nazi nennt. So bitte ich meine

Freundinnen um Vergebung, daß ich diese Benennung schon aus so

gutem Grund unterlasse.

...

Da er uns anderen, die das in seinen Augen legitimierende Glück

nicht hatten, im Ehrenkleid des Dritten Reiches für Hitlers

Freiheit zu Raubkrieg und Endlösung den Kopf hinzuhalten,

jegliches Recht abspricht, auch nur eine bloß 'geistige',

geschweige gar eine politische 'Freiheit in Anspruch zu nehmen',

und da er selber nie das Glück gehabt hatte, im Ehrenkleid der

SS oder Wehrmacht dienen zu dürfen, also sich selbst zugleich mit

der überwiegenden Mehrheit der Österreicher von allem

Freiheitsgebrauche ausschließt, ist er in meinen Augen ein

Trottel."

:

"I shall call Jörg Haider firstly, not a Nazi, but, secondly, an

idiot. That I justify as follows:

L. ... convinced me plausibly that it would rather benefit Jörg

Haider if one called him a Nazi. Thus, I must ask my friends to

forgive my abstaining from using this designation for that very

reason.

...

As he denies us, who did not have the legitimizing good fortune

to have risked our heads in the Third Reichs' honourable gown for

Hitler's freedom to rapacious war and Final Solution, any right

'to lay claim to freedom', be it only freedom of opinion or even

political freedom, and as he himself never had the good fortune

to have been able to serve in the honourable gown of the SS or

the Wehrmacht, thus at the same time excluding himself along with

the vast majority of Austrians from this exercise of freedom, in

my eyes, he is an idiot."

19. On 26 April 1991 Mr. Haider brought a private prosecution for

defamation (üble Nachrede) and insult (Beleidigung) under Sections 111

and 115 of the Penal Code against the applicant with the Vienna

Regional Criminal Court (Landesgericht). He also applied for an order

for the immediate seizure of the relevant issue of Forum and for the

publication of information about the institution of proceedings in the

applicant's periodical.

20. On 30 April 1991 the Vienna Regional Criminal Court ordered the

applicant to publish in his magazine the requested information about

the institution of criminal proceedings against him. On 21 May 1991

the applicant lodged an appeal against that decision.

21. On 23 May 1991 the Vienna Regional Criminal Court found the

applicant guilty under Section 115 of the Penal Code of having insulted

Mr. Haider and sentenced him to 20 daily rates of 200 AS. The Regional

Court held that the word "Trottel" ("idiot") was always an insult and

had a disparaging character, and that it therefore could never be used

for any objective criticism.

22. The written judgment, served upon the applicant's counsel on

16 August 1991, further ordered the seizure of the relevant copy of

"Forum" according to Section 33 of the Media Act.

23. On 30 August 1991 the applicant appealed against the Vienna

Regional Criminal Court's judgment. He challenged in particular the

proposition that the term idiot was as such an insult which could be

used but for disparaging purposes. He also criticized the fact that

the Vienna Regional Criminal Court had not had regard to the context

in which the statement had been made. He emphasized that his comment

was appropriate in view of the threat which Mr. Haider's ideas

constituted for the freedom of opinion, having regard to the fact that

he had made the speech in his capacity as the Regional Governor of

Carinthia. The applicant further requested the transcript of the court

hearing to be completed and rectified, as it did not contain all

relevant items of the trial. He finally complained that the order of

the seizure had not been delivered at the oral hearing.

24. On 18 October 1991 the Vienna Regional Criminal Court rectified

parts of the transcript of the court hearing and rejected the further

amendments requested by the applicant as irrelevant. On

10 December 1991 the applicant filed an appeal against that decision.

25. On 5 December 1991 the Vienna Regional Criminal Court rectified

its judgment and deleted the order concerning the seizure of the

relevant copies of "Forum".

26. On 18 March 1992 the Vienna Court of Appeal dismissed the

applicant's appeal of 21 May 1991 against the order to publish an

information about the institution of criminal proceedings. It also

rejected the appeal lodged on 10 December 1991 as no appeal lay against

a decision on the rectification of the transcript of a court hearing.

27. On 25 March 1992 the Court of Appeal confirmed the judgment of

the Regional Criminal Court, but reduced the amount of the fine to

20 daily rates of 50 AS.

28. In its reasoning, the Court referred to the perception of the

impugned commentary by the average reader of "Forum". It accepted that

if he had first read the speech of Mr. Haider and the article of the

criticized writer, the average reader would have been able to follow

the applicant's analysis, namely that Mr. Haider excluded the vast

majority of Austrians including himself from all exercise of freedom

of thought, and the applicant reproaching Mr. Haider with the term of

"Trottel" ("idiot"). However, this reproach could not be

comprehensible to those readers of the periodical who had not read

Mr. Haider's speech, but were only attracted by the title

"P.S.:'Trottel' statt 'Nazi'" ("P.S.: 'Idiot' instead of 'Nazi'") of

the applicant's column. According to the Vienna Court of Appeal, it

would only have been acceptable to describe the content of Mr. Haider's

speech as "idiotic" ("vertrottelt"). It was true that the applicant's

opinion had been toned down by the subsequent statement of the reasons

why Mr. Haider was considered a "Trottel" ("idiot"). However, the

title of the column expressed the applicant's opinion too literally,

and thus did not remain within its intended context. Moreover, the

fact that Mr. Haider himself frequently resorted to insults and

swearwords in political discussions was irrelevant. Thus, the emphatic

use of the term "Trottel" ("idiot") no longer constituted harsh, but

acceptable, criticism of Mr. Haider's opinion or conduct, but was

merely a disparaging personal attack which overstepped the limits of

acceptable criticism.

29. The Court of Appeal also held that the applicant's comment could

not be justified by Article 10 of the Convention, as allowing such

statements would lower the level of political culture in Austria. Nor

could the insult be justified by Section 115 para. 3 of the Penal Code,

as the applicant had not been personally insulted or provoked

beforehand by Mr. Haider.

B. Relevant Domestic Law

30. Section 111 of the Austrian Penal Code deals with the offence of

defamation ("üble Nachrede") and, as far as relevant, reads as follows:

"(1) Anyone who in such a way that it may be perceived by

a third person 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."

"(3) 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 also not be liable if

circumstances are established which gave him sufficient

reason to assume that the statement was true."

31. Section 115 of the Penal Code deals with the offence of insult

("Beleidigung) and reads as follows:

"(1) Anyone who, in public or in the presence of several others,

insults, mocks, mistreats or threatens with ill-treatment a third

person, shall be liable to imprisonment not exceeding three

months or a fine not exceeding 180 daily rates, unless he might

be punishable with a more severe penalty under a different

provision."

"(3) Any person who, outraged at the behaviour of a third person,

lets himself get carried away into insulting, mistreating or

threatening the third person with ill-treatment in a way which

is defensible in the circumstances, has a defence, if his outrage

is generally understandable, especially having regard to the time

having passed since then."

32. According to the relevant provisions of the Media Act, the person

who has been defamed may request the forfeiture and seizure of the

publication by which the media offence has been committed (Section 33

and 36). Under Section 37 of the Media Act it may also be requested

that an information about the institution of criminal proceedings be

published.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

33. The Commission has declared admissible the applicant's complaint

that his conviction of insult by the Austrian courts violated his right

to freedom of expression.

B. Point at issue

34. The only point at issue is whether there has been an unjustified

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

guaranteed by Article 10 (Art. 10) of the Convention.

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

35. The applicant complains under Article 10 (Art. 10) of the

Convention that his conviction for insult pursuant to Section 115 of

the Austrian Penal Code violated his freedom of expression.

36. Article 10 (Art. 10), 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, ... ."

37. The applicant submits that his conviction was a disproportionate

measure not justified under paragraph 2 of Article 10 (Art. 10) of the

Convention. The Government's argument that the use of a vulgar or

swear word always constitutes an insult punishable under Section 115

of the Austrian Penal Code is untenable as regard must be had to the

context in which a certain expression is used. In the circumstances

of the present case the use of a strong word was the only appropriate

description of Mr. Haider's conduct and in his article he had also

explained why. Moreover, resort to this strong expression was

necessary to stimulate a public discussion of the highly problematic

public speech Mr. Haider had given. His conviction was therefore a

disproportionate measure violating Article 10 (Art. 10) of the

Convention.

38. The Government admit that the applicant's conviction interfered

with his right to freedom of expression under Article 10 para. 1

(Art. 10-1) of the Convention, but contend that this interference was

justified under paragraph 2 of Article 10 (Art. 10-2). It was

prescribed by law, namely Section 115 of the Penal Code, and necessary

for the protection of the reputation of others and for maintaining an

orderly climate of discussion in a democracy. The measure at issue was

also in proportion to the aim pursued. In the article at issue the

applicant called Mr. Haider a "Trottel" ("idiot"), which in Austrian

usage is a gross, vilifying insult. Such an insult can under no

circumstances express objective criticism of the opinion or conduct of

the person against whom it is directed but only constitutes a personal

attack treating in an unfair manner the attacked person with contempt.

There was also nothing like an insult on justified grounds as the

applicant seems to believe. Rather, an insult is only excusable as an

immediate reaction to a personal attack which, however, was not the

applicant's case. Having also regard to the lenient sentence imposed

on the applicant, the Austrian courts did not overstep the margin of

appreciation afforded to Contracting States under paragraph 2 of

Article 10 (Art. 10-2) of the Convention.

39. The Commission considers that there was interference by public

authority with the applicant's right to freedom of expression. Such

interference is in breach with Article 10 (Art. 10) of the Convention,

if it was not 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.

40. The Commission notes that the applicant's conviction was

prescribed by law, namely by Section 115 of the Austrian Penal Code,

and was aimed to protect the reputation and the rights of others, a

legitimate aim under Article 10 para. 2 (Art. 10-2) of the Convention.

It remains to be examined whether the applicant's conviction was

"necessary in a democratic society".

41. The Commission recalls that the adjective "necessary" within the

meaning of Article 10 (Art. 10) implies the existence of a "pressing

social need". The Contracting States enjoy a certain margin of

appreciation in determining whether such a need exists, but this goes

hand in hand with a European supervision, embracing both the

legislation and the decisions applying it, even those given by an

independent court. Freedom of expression is one of the basic

conditions for a democratic society's progress, and is also applicable

to "ideas" that offend, shock or disturb. Furthermore, the press, in

a democratic society, has the task to impart information and ideas on

matters of public interest, and plays thereby a role of "public

watchdog" (Eur. Court H.R., Sunday Times (no. 2) judgment of

26 November 1991, Series A no. 217, p. 29, para. 50). As far as ideas

and attitudes of political leaders are concerned, the limits of

acceptable criticism are wider than as regards a private individual.

However, the press must not overstep the bounds set, inter alia for

"the protection of the reputation of others" (Eur. Court H.R., Lingens

judgment of 8 July 1986, Series A no. 103, p. 26, para. 41 and 42;

Oberschlick judgment of 23 May 1991, Series A no.204, p.25-26,

paras. 58-59).

42. In the present case the applicant was convicted by the Vienna

Regional Criminal Court of having publicly insulted Mr. Haider by

calling him a "Trottel" ("idiot") in an article published in "Forum"

of 19 January 1991. This conviction was upheld by the Vienna Court of

Appeal which found that in this article the applicant had criticised

Mr. Haider's speech and pointed to logical consequences of the speech

which could indeed be described as "idiotic". However, in the Court's

view the emphatic use of the term "Trottel" ("idiot"), in particular

in the headline, no longer constituted harsh, but acceptable, criticism

of Mr. Haider's opinion or conduct, but was merely a disparaging

personal attack which overstepped the limits of acceptable criticism.

43. The Commission finds that in general the use of language which

is in itself insulting needs not to be accepted by the person to whom

it is addressed and that a conviction by a court of insult may thus be

in conformity with Article 10 (Art. 10) of the Convention. However, in

exceptional circumstances a statement which could be considered as

insulting may be justified or at least excusable. An example for such

exceptional circumstances in which an insulting remark should not lead

to punishment is given in Section 115 para. 3 of the Austrian Penal

Code.

44. The Commission therefore finds that the article written by the

applicant and his conviction for having insulted the leader of the

Austrian Freedom Party (FPÖ) has to be seen against the background of

the public speech by Mr. Haider, from which it followed that freedom

of expression and opinion should only be granted to those who had

fought in World War II including in the German army 'for freedom and

peace'. Thus, the impugned statement did not refer exclusively to

Mr. Haider as a person, but more to his ideas about restricting freedom

of opinion. As the Vienna Court of Appeal also pointed out, the

qualification of Mr. Haider's opinion by the applicant, though harsh,

did not lack any factual basis. The applicant's criticism of

Mr. Haider's statements indeed sought to draw the public's attention

in a provocative manner to a statement made by a politician which was

likely to shock many people. A politician who expresses himself in

such terms exposes himself to a strong reaction on the part of

journalists and the public (see Eur. Court H.R., Oberschlick judgment,

loc. cit., p. 27, para. 61). The difference drawn in this respect by

the Court of Appeal between an admissible critique by describing

Mr. Haider's speech as "idiotic" and a punishable insult by calling

Mr. Haider an "idiot" appears rather artificial.

45. The Commission furthermore does not find convincing the Court of

Appeal's argument that only an attentive reader, who would also read

Mr. Haider's speech, printed immediately before the applicant's

article, could follow the applicant's reasoning and thus would not take

the expression "idiot" as a mere personal insult, while a superficial

reader would do so. Moreover, such a mere risk does not appear

sufficient to justify the interference with the applicant's right of

freedom of expression.

46. The Commission therefore finds that the applicant's conviction

does not appear proportionate and falls outside the margin of

appreciation left to the national authorities.

CONCLUSION

47. The Commission concludes, by 14 votes to 1, that in the present

case there has been a violation of Article 10 (Art. 10) of the

Convention.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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OBERSCHLICK v. AUSTRIA

OBERSCHLICK v. AUSTRIA

LEXI