Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 15974/90

Michael Prager and Gerhard Oberschlick

against

Austria

REPORT OF THE COMMISSION

(adopted on 28 February 1994)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-14). . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-9) . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 10-14) . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 15-41) . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 15-37) . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 38-41) . . . . . . . . . . . . . . . . . . 9

III. OPINION OF THE COMMISSION

(paras. 42-74) . . . . . . . . . . . . . . . . . . . . .11

A. Complaints declared admissible

(para. 42) . . . . . . . . . . . . . . . . . . . .11

B. Points at issue

(para. 43) . . . . . . . . . . . . . . . . . . . .11

C. Article 10 of the Convention

(paras. 44-68) . . . . . . . . . . . . . . . . . .11

CONCLUSION

(para. 68) . . . . . . . . . . . . . . . . . . . .15

D. Article 14, in conjunction with Article 10,

of the Convention

(paras. 69-72) . . . . . . . . . . . . . . . . . .15

CONCLUSION

(para. 72) . . . . . . . . . . . . . . . . . . . .15

E. Recapitulation

(paras. 73-74) . . . . . . . . . . . . . . . . . .15

DISSENTING OPINION OF Mr. S. TRECHSEL, JOINED BY MM. C.L. ROZAKIS,

M.P. PELLONPÄÄ, G.B. REFFI, J. MUCHA and D. SVÁBY . . . . . . . . .16

DISSENTING OPINION OF Mrs. G.H. THUNE, MM. M.F. MARTINEZ,

B. MARXER and M.A. NOWICKI. . . . . . . . . . . . . . . . . . . . .17

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .18

APPENDIX II : DECISION ON THE ADMISSIBILITY

OF THE APPLICATION . . . . . . . . . . . . . . .19

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 first applicant, born in 1949, and the second applicant, born

in 1942, are Austrian nationals resident in Vienna and journalists by

profession. The second applicant is editor of the periodical "FORUM -

Internationale Zeitschrift für kulturelle Freiheit, politische

Gleichheit und solidarische Arbeit", i.e., according to its subtitle,

an international magazine for cultural freedom, political equality and

solidarity.

Before the Commission they are represented by Mr. G. Lansky, a

lawyer practising in Vienna.

3 The application is directed against Austria. The respondent

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

Head of the International Law Department at the Federal Ministry of

Foreign Affairs.

4 The applicants complain under Article 10 of the Convention about

the first applicant's conviction by the Eisenstadt Regional Court

(Landesgericht) of defamation in respect of critical remarks about a

particular judge in the context of a report about judges at the Vienna

Regional Court, and about related court orders which also affected the

second applicant. The second applicant also invokes Article 14 of the

Convention.

B. The proceedings

5 The application was introduced on 21 December 1989 and registered

on 11 January 1990.

6 On 6 January 1992 the Commission decided that notice should be

given to the respondentGovernment of the application and that they

should be invited to submit written observations on the admissibility

and merits of the application.

7 The Government's observations were submitted on 24 April 1992.

The applicant's observations in reply were submitted on 24 June 1992.

8 On 29 March 1993 the Commission declared admissible the

applicants' complaints that the Eisenstadt Regional Court's judgment

of 11 October 1988, as confirmed by the Vienna Court of Appeal on

26 June 1989, violated their right to freedom of expression and

constituted discrimination. The remainder of the application was

declared inadmissible.

9 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

10 The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

11 The text of this Report was adopted on 28 February 1994 and is

now transmitted to the Committee of Ministers of the Council of Europe,

in accordance with Article 31 para. 2 of the Convention.

12 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.

13 A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

14 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

15 On 15 March 1987 the first applicant, in "FORUM" No. 397/398,

published a report under the heading "Attention! Severe Judges!"

("Achtung! Scharfe Richter!"), criticising on several pages Austrian

judges in criminal cases. After a brief summary of his main idea and

a general introduction, the applicant described in particular nine

judges at the Vienna Regional Court sitting in criminal matters

(Landesgericht für Strafsachen), inter alia Judge J.

16 In the brief summary, the applicant stated:

"Sie behandeln jeden Angeklagten von vornherein, als wäre

er bereits verurteilt; sie lassen vom Saal heraus aus dem Ausland

Angereiste wegen Fluchtgefahr verhaften; sie fragen Bewußtlose,

ob sie ihre Strafe annehmen; Unschuldsbeteuerungen kosten sie nur

noch ein Achselzucken und den Angeklagten die Höchststrafe, weil

er nicht geständig ist. - Einige von Österreichs Strafrichtern

sind zu allem imstande. Zu einigem sind alle imstande: das Ganze

hat Methode."

"They treat each and every accused as if he were already

convicted; they have people who have come from abroad arrested

in court for danger of absconding; they ask people who have

fainted if they accept their sentence; claims of innocence merely

make them shrug their shoulders and earn the accused the stiffest

penalty because he has failed to confess. Some of Austria's

judges are capable of anything. All of them are capable of quite

something. There is method in all this."

17 In the general introduction, the applicant wrote that the

Austrian judges at regional courts (Landes- und Kreisgerichte)

exercised absolute power in court and that the most insignificant

personal weaknesses and peculiarities could have serious consequences.

In such circumstances, the principle of free assessment of evidence

(freie Beweiswürdigung), the principle of the judge appointed in

accordance with the law (gesetzlicher Richter), the rules on the

distribution of cases, and the principle of the independence of the

judiciary (richterliche Unabhängigkeit) could be perverted. He

criticised that there were judges who acquitted the accused only if

there was no other choice, whose judgments were in principle more

severe than those of most of their colleagues, who treated defence

counsel as if they were the accused, who plagued and humiliated the

accused. He also reported about his experiences in making the inquiries

for the report. He concluded with short remarks about some particular

judges mentioning the "cynical vexations" ("menschenverachtende

Schikanen") of Judge J.

18 In the main part of his report relating to individual judges, the

applicant stated about Judge J. as follows:

"Typ: rabiat

...

[J.]: "Kurz plädieren, Herr Verteidiger. Das Urteil steht

schon fest." - Zum Wiener Rechtsanwalt [K.], vor einigen Jahren.

[J.]: Ein Richter, der Bewährungshelfern nicht gestattet,

in seinem Zimmer Platz zu nehmen. Mit denen redet er nämlich

nicht.

[J.]: Ein Richter, der einmal eine Prostituierte angezeigt

hat, weil er schon gezahlt hatte, sie aber mit ihrem Zuhälter

abrauschte, ohne daß etwas passiert wäre. Sie dachte wohl, der

Freier wäre zu besoffen, um den Unterschied zu merken. Aber der

legte sich auf die Lauer und notierte die Autonummer.

Mit seiner Anzeige handelte [J.] der Dirne sogar eine Ver-

urteilung ein - sich selbst aber ein Disziplinarverfahren, das

sich gewaschen hatte, weil die pikante Story - die immerhin für

die Querköpfigkeit [J.s] spricht - in die Zeitung kam.

Fast wäre er übrigens trotzdem Staatsanwalt geworden. Aber

die Zeitung ließ eine Geschichte platzen, in der wieder einmal

sein Name vorkam - diesmal in Zusammenhang mit einem Kriminal-

prozeß und Verdacht auf Winkelschreiberei. Zwei Herren, Vater und

Sohn L., waren angeklagt, mittels betrügerischer Verträge Leuten

für Eigentumswohnungen in Althäusern Geld herausgerissen zu

haben. Als klar wurde, daß die Verträge von [J.] aufgesetzt

worden waren, nahm die Anklage eine andere Richtung: plötzlich

waren nicht mehr die Verträge betrügerisch, sondern die Ab-

sichten, mit denen sie verwendet worden waren.

[J.] blieb Richter, statt Staatsanwalt zu werden. Den

`Kurier'-Autoren tut's heute leid, Staatsanwalt ist weniger

gefährlich.

Das `profil' belegte im September, warum: [J.] hatte in

seiner Funktion als Untersuchungsrichter einen Rauschgift-

süchtigen über ein Jahr lang in U-Haft belassen, obwohl er von

den Pflichtverteidigern des Inhaftierten immer wieder darauf

hingewiesen worden war, daß er die Rauschgiftmenge falsch

beurteile und der Strafrahmen nur vier bis sechs Monate sei.

Wobei [J.] die letzte Nichtigkeitsbeschwerde vorschrifts-

widrig nicht an den Obersten Gerichtshof weitergeleitet hatte,

sondern ans Oberlandesgericht und den Gerichtspräsidenten, die

nochmals drei Monate prüften, ob enthaftet werden sollte und ob

mögliche Verfehlungen des U-Richters vorlägen.

Zumindest diese drei Monate hätte ein Kopierapparat dem

Untersuchungshäftling erspart: Anfang März von dem neuen Richter

enthaftet, an den die endlich eingeschalteten Oberstrichter den

Akt zurückschickten, wurde der 13 Monate Inhaftierte schließlich

Ende März verurteilt. Zu fünf Monaten.

Allein die Anwaltkosten hätten bis dahin 85.000 Schilling

betragen, wie die beiden Pflichtverteidiger des [J.]-Opfers, [B.]

und [L.], errechnet haben.

Ganz spurlos scheint das alles auch an Richter [J.] nicht

vorbeigegangen zu sein. Der hochgewachsene bärtige Richter

hat eine tiefe, klangvolle Stimme. Aber während des ganzen

Prozesses gegen die `Urlaubsräuberin' Marianne O. hält sich

ein hart-näckiges Zucken im Gesicht des [S.]-Beisitzers.

Dann wird das Geschworenenurteil ausgesetzt und Anwalt [G.]

bekommt ein Disziplinarverfahren angehängt."

"Type: rabid

...

[J.], addressing the Vienna lawyer [K.] some years ago:

`Keep it short. I've already made up my mind.'

[J.]: A judge who does not allow probation officers to sit

down in his office. He does not talk to such people.

[J.]: A judge who once laid a complaint against a

prostitute because he had already paid her, but she and her pimp

vanished without anything having happened. She might have thought

that her client was too drunk to notice the difference. [J.]

however lay in wait and noted the car number.

[J.]'s complaint resulted in a conviction for the

prostitute - and disciplinary proceedings for himself, which

proved effective because the saucy story, which says much for

[J.]'s pigheadedness, got into the newspapers.

Despite all this he almost became a public prosecutor. But

the press revealed a story in which his name cropped up again,

this time in connection with criminal proceedings and the

suspicion of dishonest practices. Two men, MM. L., father and

son, were accused of having obtained money from people seeking

to buy flats in old property, by means of fraudulent contracts.

When it became clear that the contracts had been drawn up by

[J.], the accusation took another tack: suddenly it was no longer

the contracts which were fraudulent, but the intention with which

they had been used.

[J.] remained a judge instead of becoming a public

prosecutor. The authors working for the `Kurier' [N.B.: an

Austrian newspaper] now regret this because a public prosecutor

is less dangerous.

In September `profil' [N.B.: an Austrian magazine] showed

why. In his capacity as an investigating judge, [J.] had left a

drug addict in detention on remand for over one year, although

the remand prisoner's official defence counsel repeatedly told

him that he was making a mistake regarding the quantity of drugs

involved and that the relevant sentence would be four to six

months' imprisonment.

In breach of the regulations, [J.] did not forward the

latest plea of nullity to the Supreme Court, but to the Court of

Appeal and to the President of the Court of Appeal, which took

a further three months to consider whether the man should be

released from prison and whether there had been any misconduct

on the part of the investigating judge.

A photocopier would have spared the prisoner at least three

months. Released at the end of March by the new judge to whom the

Supreme Court judges, finally brought into play, forwarded the

case file, the prisoner was at last convicted at the end of March

and sentenced to five months' imprisonment. He had been detained

on remand for thirteen months.

The two official defence counsel [B.] and [L.] of the [J.]-

victim calculate that solely the legal fees up to that date

amounted to AS 85,000.

All this does not seem to have left Judge [J.] unscathed.

The tall, bearded judge has a deep, resonant voice. Yet

throughout the trial of Marianne O., the `holiday'-thief, an

obstinate tick was to be seen in the face of Judge [S.]'s

colleague on the Bench.

Then the jury's verdict was suspended and defence counsel

[G.] found himself facing disciplinary proceedings."

19 In his report the applicant referred to inquiries of two criminal

sociologists relating to decisions on detention on remand and

sentencing in the district of the Vienna Court of Appeal, and to a

university study in 1985 on regional sentencing practices in Austria,

and named other newspapers as well as third persons, in particular

lawyers, as sources of his information.

20 On 23 April 1987 Judge J. requested the Vienna Regional Court to

institute criminal proceedings against the first applicant, to which

the second applicant, as editor of the periodical in question, was a

party. J. considered that certain passages in the report summarised and

partly cited above were defamatory within the meaning of S. 111 of the

Austrian Penal Code (Strafgesetzbuch). In these proceedings, both

applicants were represented by Mr. Lansky.

21 On 5 August 1987 the Austrian Supreme Court (Oberster Gerichts-

hof) dismissed the applicants' motion to challenge the Vienna Court of

Appeal for bias. On 17 September 1987 the Vienna Court of Appeal, upon

the applicants' challenge of the Vienna Regional Court for bias,

transferred the case to the Eisenstadt Regional Court.

22 On 17 November 1987 the Eisenstadt Regional Court ordered the

second applicant to print in the periodical "FORUM" a notice that [J.]

had brought a private prosecution for defamation in respect of

particular passages in the above-mentioned report. The applicants'

appeal (Beschwerde) remained unsuccessful.

23 On 15 December 1987 the President of the Eisenstadt Regional

Court dismissed the applicants' motion to challenge the Presiding Judge

for political reasons.

24 On 11 October 1988 the Eisenstadt Regional Court found the first

applicant guilty of having defamed Judge J. in that, in his report

"Attention! Severe Judges!" as published in the periodical "FORUM" on

15 March 1987, he made the following remarks:

(1) "They treat each and every accused as if he were

already convicted."

(2) "Some of Austria's judges are capable of anything."

(3) "Nothing compared to ... the cynical vexations of

Judge [J.]."

(4) "Type rabid ... [J.]."

(5) "Despite all this he almost became a public

prosecutor. But the press revealed a story in which his

name cropped up again, this time in connection with

criminal proceedings and the suspicion of dishonest

practices. Two men, Messrs. L., father and son, were

accused of having obtained money from people seeking to buy

flats in old property, by means of fraudulent contracts.

When it became clear that the contracts had been drawn up

by [J.], the accusation took another tack: suddenly it was

no longer the contracts which were fraudulent, but the

intention with which they had been used.

[J.] remained a judge instead of becoming a public

prosecutor. The authors working for the `Kurier' now regret

this because a public prosecutor is less dangerous."

25 The Regional Court convicted the first applicant of defamation

under S. 111 paras. 1 and 2 of the Penal Code and sentenced him to

120 daily rates (Tagessätze) of AS 30, in default of payment to

60 days' imprisonment. The costs of the proceedings were awarded

against the first applicant. The Regional Court, referring to

S. 33 para. 1 of the Austrian Media Act (Mediengesetz), also ordered

the confiscation of the remaining copies of the periodical concerned

and the publication of the relevant parts of the judgment. Furthermore,

it decided that, in accordance with S. 35 of the Media Act, the second

applicant, as editor of the periodical, should be jointly liable for

the payment of the fine, the costs of the proceedings, and the costs

of publishing the judgment. Moreover, pursuant to S. 6 para. 1 of the

Media Act, the Regional Court ordered the second applicant to pay J.

compensation of AS 30,000. Finally, the Regional Court, referring to

S. 34 para. 1 of the Media Act, ordered the publication of the

operative part of this judgment in the periodical "FORUM".

26 The Regional Court, in its detailed reasoning, examined first the

objectively defamatory nature of the five passages mentioned above. It

found that, in everyday language, the term "rabiat" ("rabid") meant

"wild, angry, acting without consideration, brutally and violently".

The term "Schikane" ("vexation") denoted a measure taken on the basis

of public or official powers which caused unnecessary difficulties for

a third person, and only applied to intentional actions. A "menschen-

verachtende" ("cynical") person regarded human beings as bad, inferior

and unworthy, thus detested others and thereby degraded them. The

reproach that accused persons were treated as if they were already

convicted meant that such a judge lacked impartiality and fairness and

acted contrary to Article 6 para. 2 of the Convention. In the context

of the other accusations, the reproach with being "zu allem imstande"

("capable of anything") also meant an intolerable behaviour. The fifth

passage contained the suspicion that J. had committed criminal and

disciplinary offences.

27 The Court considered that the accusations, taken together, were

so strong that an impartial reader was bound to suspect J. of

dishonourable behaviour and a contemptible character. The general

public required a judge to be impartial, fair, reliable and

conscientious in fulfilling his judicial tasks and, whether in pursuit

of his profession or otherwise, to act above blame and as an ideal for

others. The incriminated passages were contrary to all these legitimate

ideas.

28 The Regional Court found that the first applicant had acted with

the intent of defaming J.

29 Furthermore, he had failed to prove the truth of his statements

mentioned above under items (1), (3) and (5), or to apply the necessary

diligence as a journalist (Einhaltung der journalistischen Sorgfalt).

The accusations under items (2) and (4) were value-judgments and as

such not subject to proof.

30 The Regional Court noted the first applicant's arguments and

evidence adduced to prove the truth of his accusations, and his

statement that, in having applied the necessary diligence, he could

regard these facts as true. The Regional Court summarised the first

applicant's submissions as follows: repeatedly disciplinary proceedings

had been brought against J.; J. had once kept an accused unreasonably

long in detention on remand and further delayed these proceedings; a

disciplinary complaint against a lawyer had been unsubstantiated; J.

had asked defence counsel to keep his pleadings short because the

judgment was already definitive; J. had been involved in the fraud

proceedings against Messrs. L., and refused to talk to social workers.

The first applicant had requested that various files concerning

criminal proceedings against third persons and all disciplinary files

concerning J. be consulted, and that two counsel, two judges of the

Vienna Court of Appeal and a judge of the Vienna Regional Court be

heard as witnesses on disciplinary matters relating to J. Furthermore,

he had requested inquiries into J.'s application for a post as public

prosecutor, and the reasons why he was not admitted.

31 The Regional Court considered, in detailed reasoning, that the

evidence offered by the first applicant to prove the truth of the

incriminated passages was not pertinent. The single incidents which the

first applicant offered as proof did not show a general lack of

impartiality, or intent to delay proceedings concerning detention

matters or otherwise to raise unnecessary obstacles. Moreover, J., in

disciplinary proceedings in 1982 relating to his role in the criminal

proceedings against Messrs. L., had been completely discharged. The

files concerning J.'s application for a post as public prosecutor were

confidential.

32 With regard to the first applicant's failure to prove that he had

applied the necessary diligence as a journalist, the Regional Court

noted in particular that he had not heard J. on the reproaches against

him, and had not attended any trial conducted by J. He had further

copied earlier press reports without checking them and he had

reproduced allegations which he only knew by hearsay.

33 Finally, the Regional Court considered that the first applicant's

obvious negligence, his strong criminal intent and his continuing

journalistic activities as well as considerations of general deterrent

required that the sentence be fully executed. The compensation was

fixed with regard to the serious harm inflicted upon J.'s professional

reputation and the second applicant's financial situation.

34 The Regional Court also noted that the second applicant, though

duly summoned, had not appeared at the trial.

35 On 26 June 1989 the Vienna Court of Appeal, upon the applicants'

appeal, reduced the compensation to AS 20,000. It dismissed the

remainder of the appeal. The Court of Appeal considered in particular

that the applicants' defence rights had not been unduly restricted at

first instance. The first applicant had failed to show that the

evidence offered to prove the truth of his statements was pertinent.

His difficulties in this respect resulted from his own broad and

general formulation of the incriminated passages. Furthermore, the

applicant's case could not be compared to the "Lingens case" (Eur.

Court H.R., Lingens judgment of 8 July 1986, Series A no. 103).

36 The judgment was served upon the applicants on 25 July 1989.

37 The Regional Court's order to confiscate the remaining copies of

the periodical concerned was finally not executed.

B. Relevant domestic law

38 SS. 111, 112 and 114 of the Austrian Penal Code (Strafgesetz-

buch) concern the offence of defamation. S. 111 provides as follows:

"(1) Wer einen anderen in einer für Dritte wahrnehmbaren

Weise einer verächtlichen Eigenschaft oder Gesinnung zeiht

oder eines unehrenhaften Verhaltens oder eines gegen die

guten Sitten verstoßenden Verhaltens beschuldigt, das

geeignet ist, ihn in der öffentlichen Meinung verächtlich

zu machen oder herabzusetzen, ist mit Freiheitsstrafe bis

zu sechs Monaten oder mit Geldstrafe bis zu 360 Tagessätzen

zu bestrafen.

(2) Wer die Tat in einem Druckwerk, im Rundfunk oder sonst

auf eine Weise begeht, wodurch die üble Nachrede einer

breiten Öffentlichkeit zugänglich wird, ist mit

Freiheitsstrafe bis zu einem Jahr oder mit Geldstrafe bis

zu 360 Tagessätzen zu bestrafen.

(3) Der Täter ist nicht zu bestrafen, wenn die Behauptung

als wahr erwiesen wird. Im Fall des Abs. 1 ist der Täter

auch dann nicht zu bestrafen, wenn Umstände erwiesen

werden, aus denen sich für den Täter hinreichende Gründe

ergeben haben, die Behauptung für wahr zu halten."

"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 ...

(2) Anyone who commits this offence in a printed document, by

broadcasting or otherwise in such a way as to make the defamation

accessible to a broad section of the public shall be liable to

imprisonment not exceeding one year 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."

39 Under S. 112, evidence of the truth and of good faith shall not

be admissible unless the person making the statement pleads the

accuracy of his statement or his good faith.

40 By virtue of S. 114 para. 1, conduct of the kind mentioned in

S. 111 is justified if it constitutes fulfilment of a legal duty or the

exercise of a right. According to S. 114 para. 2, a person who is

forced by special circumstances to make an allegation within the

meaning of S. 111 in the particular form and manner in which it is

made, is not to be punished, unless that allegation is untrue and the

offender could have been aware thereof if he had acted with the

necessary care.

41 S. 6 of the Austrian Media Act (Mediengesetz) provides for the

strict liability of the publisher in cases of defamation; the victim

can thus claim compensation from him. Furthermore, in accordance with

S. 35 of the Media Act, the publisher may be declared to be liable

jointly and severally with the person convicted of a media offence for

the fines imposed and for the costs of the proceedings. S. 33 provides

for the confiscation of publications by which media offences have been

committed, and S. 34 for the publication of the judgment in so far as

this appears necessary for the information of the public.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

42 The Commission has declared admissible:

- the applicants' complaint that the Eisenstadt Regional Court's

judgment of 11 October 1988, as confirmed by the Vienna Court of

Appeal on 26 June 1989, violated their right to freedom of

expression;

- the second applicant's complaint that the said judgment, ordering

the confiscation of the remaining copies of the periodical as a

whole, amounted to discrimination.

B. Points at issue

43 Accordingly, the issues to be determined are:

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

Convention;

- whether there has been a violation of Article 14, taken in

conjunction with Article 10 (Art. 14+10), of the Convention.

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

44 Article 10 (Art. 10) of the Convention provides, so far as

relevant:

"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. ...

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 prevention of

disorder and crime, ... for the protection of the reputation or

rights of others, ... or for maintaining the authority and

impartiality of the judiciary."

45 The Eisenstadt Regional Court, in its judgment of

11 October 1988, as confirmed by the Vienna Court of Appeal on

26 June 1989, convicted the first applicant of defamation and imposed

a fine upon him; it further ordered the second applicant's joint

liability regarding the fine as well as procedural and other costs; it

awarded damages against the second applicant; it ordered the

confiscation of the remaining copies of the periodical concerned;

lastly it ordered the publication of the operative part of its

judgment.

46 The Commission finds that these decisions constituted an

interference with both applicants' right to freedom of expression.

This interference is in breach of Article 10 (Art. 10) of the

Convention, if it is not "prescribed by law" and "necessary in a

democratic society" for one of the aims mentioned in paragraph 2 of

Article 10 (Art. 10).

47 As to the conformity with the law, the Commission considers that

the first applicant's conviction for defamation was based on S. 111 of

the Austrian Penal Code.

48 The first applicant raises doubts as to whether the penal

provisions on defamation, in particular S. 111 of the Penal Code, are

sufficiently precise as a legal basis for an interference with the

freedom of expression.

49 The Commission finds that under the penal law provisions on

defamation, as interpreted in the case-law of the Austrian courts, the

applicant could foresee, to an extent reasonable in the circumstances

of the present case, the consequences of publishing the article and

particularly the incriminated passages (cf., mutatis mutandis, Eur.

Court H.R., Müller and Others judgment of 24 May 1988, Series A

no. 133, p. 20, para. 29).

50 The further court decisions which were related to the first

applicant's conviction were based on the relevant provisions of the

Media Act.

51 The Commission is satisfied that the interference was "prescribed

by law".

52 Moreover, the interference in question had the legitimate aims

of protecting the "reputation" of others, i.e. of the Judge J., and of

"maintaining the authority ... of the judiciary", within the meaning

of paragraph 2 of Article 10 (Art. 10-2).

53 It remains to be determined whether or not the interference was

"necessary in a democratic society" for the aforesaid aims.

54 The applicants submit that the first applicant's article was

intended to criticise misuse of powers in the administration of

criminal justice. In formulating his article, he had not gone beyond

the limits of acceptable criticism. According to the applicants, the

Austrian court judgments in question did not duly balance the public

interest in critical information by the press about the performance of

the administration of justice and the working methods of particular

criminal judges.

55 The Government contend that the said interference was necessary

in a democratic society for the protection of the reputation or rights

of others as well as for maintaining the authority and impartiality of

the judiciary. In this respect, they refer primarily to the Barfod

judgment of the European Court of Human Rights (22 February 1989,

Series A no. 149). They consider that the subject of the first

applicant's article was neither a matter of political debate, where the

limits of criticism are wider, nor did the incriminated passages

contribute to a critical discussion on the Austrian administration of

criminal justice. The incriminated article could not be qualified as

a reasonable reaction to any behaviour of Judge J. Rather, the article

contained defamatory accusations against an individual judge which were

likely to degrade him in public esteem.

56 In examining the question of the necessity of the interference

in question, the Commission has had regard to the major principles on

this issue emerging from the relevant case-law (cf. Eur. Court H.R.,

Schwabe judgment of 28 August 1992, Series A no. 242-B, pp. 32-33,

para. 29; Castells judgment of 23 April 1992, Series A no. 236,

pp. 22-24, paras. 42-43, 46; Thorgeir Thorgeirson judgment of

25 June 1992, Series A no. 239, p. 27, para. 63; Observer and Guardian

judgment of 26 November 1991, Series A no. 216, pp. 29-30, para. 59;

Sunday Times (No. 2) judgment of 26 November 1991, Series A no. 217,

pp. 28-29, para. 50; Barfod judgment of 22 February 1989, Series A

no. 149, p. 12, paras. 28-29) which may be summarised as follows:

57 Freedom of expression constitutes one of the essential

foundations of a democratic society; subject to paragraph 2 of

Article 10 (Art. 10-2), it is applicable not only to information or

ideas that are favourably received or regarded as inoffensive or a

matter of indifference, but also to those that offend, shock or

disturb.

58 The exceptions to the freedom of expression must be narrowly

interpreted, and the necessity for any restrictions must be

convincingly proven. The Contracting States have a certain margin of

appreciation in assessing the necessity of an interference, but it goes

hand in hand with a European supervision, embracing both the law and

the decisions applying it, even those given by independent courts. Thus

the standards applied by the national authorities must be in conformity

with the major principles on freedom of expression, and their

assessment of the facts must be acceptable.

59 In this respect, the pre-eminent role of the press in a State

governed by the rule of law must be taken into account. 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 matters of public interest. Not only

does it have the task of imparting such information and ideas: the

public also has a right to receive them. Were it otherwise, the press

would be unable to play its vital role of "public watchdog".

60 The Commission notes that the first applicant was convicted for

having published, in the context of an article in the periodical

"FORUM" concerning the performance of judges at the Vienna Regional

Court, five passages which were found to be defamatory in respect of

Judge J., one of the judges specifically portrayed by the first

applicant. The first two of the incriminated remarks related to all

judges at the Vienna Regional Court ("They treat each and every accused

as if he were already convicted." - "Some of Austria's judges are

capable of anything."), the third and fourth statement concerned only

J. ("Nothing compared to ... the cynical vexations of Judge [J.]." -

"Type rabid ... [J.]."). J. was thereby characterised in his

professional conduct as a judge. The fifth of the passages in question

reported an alleged episode of J.'s professional career casting upon

him the suspicion of dishonest practices in connection with criminal

proceedings concerning charges of fraud.

61 The Commission observes that the first applicant's article, read

as a whole, concerned a matter of public interest, namely the proper

administration of criminal justice. Actions or omissions of the

Government, of police and other State authorities, including the proper

functioning of the judiciary, should be at any time open to public

scrutiny (cf. Eur. Court H.R., Castells judgment, loc.cit., pp. 23-24,

paras. 45-46; Thorgeir Thorgeirson judgment, loc. cit., paras. 66-67;

Barfod judgment, loc. cit., pp. 13-14, paras. 32-34).

62 The Eisenstadt Regional Court concentrated its findings on the

five passages challenged by Judge J. Examining the objectively

defamatory nature of the five passages in question, it reached the

conclusion that the accusations were so strong that an impartial reader

was bound to suspect J. of dishonourable behaviour and a contemptible

character. In this respect, the Regional Court considered that the

first applicant had failed to prove the truth of his allegations. Two

of the incriminated remarks ("Some of Austria's judges are capable of

anything." - "Type rabid ... [J.].") were regarded as value-judgments

and as such not subject to proof. The evidence offered by the first

applicant to prove the truth of the facts underlying the further three

passages was considered not pertinent on the ground that the single

events to be proven did not show a general lack of impartiality, or

otherwise a misuse of powers. From the accusations mentioned in the

fifth passage, J. had been discharged in disciplinary proceedings. The

Regional Court also found that the first applicant had failed to prove

that he had applied the necessary diligence as a journalist. In

particular, he had not heard J. on the reproaches against him, he had

not attended any trial conducted by J., he had copied earlier press

reports without checking them, and he had reproduced allegations which

he only knew by hearsay.

63 In the circumstances of the present case, the Commission is

satisfied that the interference with the applicants' right to freedom

of expression was not prompted by the subject of the first applicant's

article. The Austrian courts did not intend to restrict the applicants'

right under the Convention to criticise the performance of judges in

general, or to question the professional or personal conduct of

specific judges like J. (cf., mutatis mutandis, Eur. Court H.R., Barfod

judgment, loc. cit., p. 13, para. 32).

64 The informing of the public on such issues did not require that

the negative remarks on Judge J., including reference to single

incidents, be presented as a severe attack on J.'s personal and

professional integrity in general. Though there may have been reasons

to believe that there were shortcomings in J.'s performance in his

judicial office, the finding of the Eisenstadt Regional Court that

there was nothing to justify the reproach that J., as a matter of

principle, acted on grounds of bias and for other improper motives, has

not been invalidated (cf., mutatis mutandis, Eur. Court H.R., Barfod

judgment, loc. cit., pp. 13-14, para. 33).

65 The Commission further accepts the conclusions of the Eisenstadt

Regional Court that the first applicant failed to prove that he had

applied the necessary diligence as a journalist. The first applicant

claims that he had done a careful research on the matter. The

Commission, having regard to the seriousness of accusations affecting

J. personally as well as the authority of the judiciary in general,

finds that any careful research on the matter, which was not of any

apparent urgency, had to include giving J. an opportunity to state his

views on the matter or otherwise securing a personal impression of J.

66 The Commission also considers that the amount of the fine imposed

upon the first applicant, and the related court orders issued by the

Eisenstadt Regional Court and confirmed by the Vienna Court of Appeal,

were not disproportionate in the circumstances.

67 The Commission, in view of these considerations and having regard

to the duties and responsibilities attached to the freedoms guaranteed

by Article 10 (Art. 10), finds that the first applicant's conviction

by the Eisenstadt Regional Court, and likewise the related further

court orders, as confirmed by the Vienna Court of Appeal, did not go

beyond the margin of appreciation left to the national authorities.

These decisions can, therefore, reasonably be regarded as "necessary

in a democratic society ... for the protection of the reputation ...

of others ... or for maintaining the authority ... of the judiciary".

CONCLUSION

68 The Commission concludes, by 15 votes to 12, that there has been

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

D. Article 14, in conjunction with Article 10, (Art. 14+10)

of the Convention

69 Article 14 (Art. 14) of the Convention reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

70 Article 14 (Art. 14) affords protection against different

treatment, without an objective and reasonable justification, of

persons in similar situations (cf. Eur. Court H.R., Observer and

Guardian judgment, loc. cit., p. 35, para. 73).

71 The Commission considers that the Eisenstadt Regional Court's

order that the remaining copies of the periodical as a whole were to

be confiscated, instead of limiting such order to the part relating to

the incriminated passages, does not amount to discrimination within the

meaining of Article 14 (Art. 14) of the Convention.

CONCLUSION

72 The Commission concludes unanimously that there is no violation

of Article 14, in conjunction with Article 10, (Art. 14+10) of the

Convention.

E. Recapitulation

73 The Commission concludes, by 15 votes to 12, that there has been

no violation of Article 10 (Art. 10) of the Convention (para. 68).

74 The Commission concludes unanimously that there is no violation

of Article 14, in conjunction with Article 10, (Art. 14+10) of the

Convention (para. 72).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

(Or. English)

DISSENTING OPINION OF Mr. S. TRECHSEL,

JOINED BY MM. C.L. ROZAKIS, M.P. PELLONPÄÄ, G.B. REFFI,

J. MUCHA and D. SVÁBY

Contrary to the majority of the Commission I have come to the

conclusion that, in the present case, there has been a violation of

Article 10.

I quite accept that the criticism of Judge J. was very harsh and

phrased in satirical terms. No doubt it was damaging to the reputation

of the Judge.

However, the factual allegations made were essentially accepted

as true - what the court found objectionable were the general

conclusion and value-judgments made in the incriminated text. In my

opinion this is not a convincing approach: it is open to every reader

to form his own opinion as to whether the critical appraisal made in

the text was justifiable or not.

I also wish to add the following considerations:

Judges are invested by society with very important competences.

It falls to them to decide over right or wrong and, as the case may be,

to impose severe punishment. They are, however, expected to act under

the scrutiny of the public (cf. Article 6 para. 1) and to behave in an

impeccably correct way. In particular they ought to display exemplary

respect for all those appearing before them. Where they fail to live

up to these expectations they expose themselves to criticism against

which they do not merit protection. I am quite prepared to accept that

in the present case the first applicant did exaggerate. He did so in

a way which is obvious to the reader. However, I cannot find that he

failed to apply the requisite care as far as his factual allegations

are concerned.

In my view, a democratic society and its exponents (such as

judges) must tolerate even somewhat exaggerated criticism if it is

based on irrefutable facts.

(Or. English)

DISSENTING OPINION OF Mrs. G.H. THUNE, MM. M.F. MARTINEZ,

B. MARXER and M.A. NOWICKI

We cannot share the opinion of the majority of the Commission as

to the question of the necessity of the interference with the

applicants' freedom of expression.

We consider that in matters of public interest involving the

functioning of the public administration, including the judiciary, the

test of necessity has to be particularly strict.

In the present case, the first applicant, in aiming to attract

public attention for his criticism as to the performance of judges at

the Vienna Regional Court in general, and the professional or personal

conduct of specific judges like J., took recourse to generalisations

and a particularly strong and provocative wording. This is particularly

true for the first two of the incriminated passages which were

contained in the introductory part of the article and did not directly

point at J.

The first applicant's statements did not lack a factual basis.

The article was inter alia based on previous publications in the press,

on inquiries of two criminal sociologists relating to decisions on

detention on remand and sentencing in the district of the Vienna Court

of Appeal, and on a university study in 1985 on regional sentencing

practices in Austria, and third persons, in particular lawyers were

named as sources of information (para. 19 above). Though the first

applicant did not give J. a possibility to comment upon the envisaged

accusations, and did not gather a personal impression of J., there is

no serious doubt as to his good faith.

Moreover, the first applicant, in the course of the trial against

him, referred to single incidents in order to prove his accusations

against Judge J. While not calling the truth of these submissions into

question, the Eisenstadt Regional Court did not regard this evidence

as pertinent. Dealing only with the five separated passages of the

first applicant's article and analysing the objectively defamatory

nature of these terms, the Regional Court found a reproach of general

bias and improper professional behaviour in the first applicant's

statements made in the five passages. However, this conclusion drawn

by the Regional Court amounted in itself to a value-judgment, for which

no proof of truth is possible (cf. Schwabe judgment of 28 August 1992,

Series A no. 242-B, p. 34, para. 34).

Finally, the first applicant's conviction and sentence, and the

related court orders affecting also the second applicant, were capable

of discouraging members of the press from publishing articles on

matters of public concern.

In view of these considerations, our conclusion is that the

interference complained of was not "necessary in a democratic society

... for the protection of the reputation ... of others ... or for

maintaining the authority ... of the judiciary".

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

21 December 1989 Introduction of the application

11 January 1990 Registration of the application

Examination of Admissibility

6 January 1992 Commission's decision to invite

the Government to submit observations on

the admissibility and merits of the

application

24 April 1992 Government's observations

24 June 1992 Applicants' observations in reply

29 March 1993 Commission's decision to declare the

applicants' complaints under Articles 10

and 14 of the Convention admissible, and

to declare the remainder of the

application inadmissible

Examination of the merits

4 September 1993) Commission's consideration of the state of

15 January 1994 ) proceedings

28 February 1994 Commission's deliberations on the

merits, final vote and adoption of

the Report

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PRAGER AND OBERSCHLICK v. AUSTRIA

PRAGER AND OBERSCHLICK v. AUSTRIA

LEXI