Lexploria

Application No. 13704/88

Karl Thomas Uwe SCHWABE

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 8 January 1991)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1 - 15)..................................... 1

A. The application

(paras. 2 - 3) ............................. 1

B. The proceedings

(paras. 4 - 10) ............................ 1

C. The present Report

(paras. 11 - 15) ............................ 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16 - 37) .................................... 3

A. The particular circumstances of the case

(paras. 16 - 32) ............................ 3

B. Relevant domestic law

(paras. 33 - 37) ............................ 6

III. OPINION OF THE COMMISSION

(paras. 38 - 57) .................................... 8

A. Complaint declared admissible

(para. 38) .................................. 8

B. Point at issue

(para. 39) .................................. 8

C. Article 10 of the Convention

(paras. 40 - 56) ............................ 8

D. Conclusion

(para. 57) .................................. 11

DISSENTING OPINION OF MR. J.-C. GEUS, joined by

MM. G. JÖRUNDSSON, J.-C. SOYER and F. MARTINEZ RUIZ ......... 12

APPENDIX I : HISTORY OF THE PROCEEDINGS ............... 13

APPENDIX II : DECISION ON THE ADMISSIBILITY ............ 13

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant, born in 1959, is an Austrian national and

resident at St. Andrä. He is an industrial management student.

Before the Commission he is represented by Mr. W. Brunner, a lawyer

practising in Klagenfurt.

The application is directed against the Republic of Austria

whose Government are represented by their Agent, Ambassador H. Türk,

Head of the International Law Department at the Federal Ministry of

Foreign Affairs.

3. The application relates to the applicant's conviction, on

26 September 1986 by the Klagenfurt Regional Court (Landesgericht), of

defamation and of reproach with a previous criminal offence. The

applicant complains under Article 10 of the Convention that he was

convicted because he had, in a letter to the editor of a Carinthian

newspaper, referred to the criminal offence of a politician.

B. The proceedings

4. The application was introduced on 1 February 1988 and

registered on 25 March 1988.

5. On 4 July 1988 the Commission decided to give notice of the

application to the respondent Government and to invite them to submit,

before 28 October 1988, their observations in writing on the

admissibility and merits of the application.

6. The Government submitted their observations on 2 November 1988.

The applicant, invited to submit observations in reply before

9 January 1989, submitted his reply on 5 January 1989.

7. On 11 October 1989 the Commission declared the application

admissible.

8. The text of this decision was on 16 October 1989 communicated

to the parties.

9. Additional observations were submitted by the applicant on

7 December 1989 and by the Government on 18 December 1989.

10. After declaring the case admissible, the Commisison, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed

itself at the disposal of the parties with a view to securing a

friendly settlement of the case. Correspondence was conducted with

the parties in this respect between 16 October 1989 and 11 June 1990.

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 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

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

12. The text of this Report was adopted on 8 January 1991

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. 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.

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 December 1984 T., the Mayor of Maria Rain in Carinthia, was

convicted of having negligently caused bodily harm (fahrlässige

Körperverletzung) in a traffic accident under the influence of alcohol

(at least 1.75 per mille) and, in particular, of having abandoned the

victim of the accident.

17. In 1985 this conviction was subject to political discussion

in Carinthia. On 13 August 1985 the Carinthian newspaper "Kleine

Zeitung" published an article "If T. doesn't think it over, we do!"

The article quoted from an interview with the Head of the Carinthian

Government W., member of the Socialist party, upon the question

whether or not T. had to resign. W. had referred to the fact that T.

did apparently not intend to resign. He had stated in particular that

he did not want to participate in a hunt. However, after a phase of

reflection, T. ought to realise that his resignation was necessary.

W. continued that this would be primarily a matter for the Austrian

People's Party. However, if T. would not think it over, the Regional

Supervisory Authority (Gemeindeaufsicht des Landes) would do so.

18. On 19 August 1985 the applicant wrote a press report in reply

to that Article. At that time the applicant was Chairman of the Young

Austrian People's Party (Junge Österreichische Volkspartei) in a

Carinthian district and councillor (Gemeinderat) of St. Andrä. The

report read as follows:

"Es sei keine Frage, daß der wegen Fahrerflucht

verurteilte ÖVP-Bürgermeister von Maria Rain zurückzutreten habe,

erklärte der Bezirksobmann der Jungen ÖVP Wolfsberg Gemeinderat

Karl Schwabe in einer Aussendung.

Landeshauptmann W. habe aber nicht die geringste

moralische Berechtigung Bürgermeister T. wegen seiner

Rücktrittsweigerung anzugreifen. Landeshauptmann W. ist seit

Jahren darüber informiert, daß sein Stellvertreter am 10. Juli

1966 bei Scheifling in der Steiermark im alkoholisierten Zustand

einen Verkehrsunfall verursachte, bei dem 2 Kinder zu Halbwaisen

wurden. Man kann sich hier des Eindruckes nicht erwehren, daß

der Landeshauptmann bei einem 'kleinen Dorfbürgermeister', der

einer anderen Partei angehört, strengere Maßstäbe anlegt, als bei

seinem Parteifreund und Stellvertreter F. Es täte der

Glaubwürdigkeit W.'s gut, wenn er innerhalb der SPÖ für jene

politische Moral sorgen würde, die er von anderen verlangt,

schloß Schwabe."

"It would be no question that, after his conviction for

leaving the place of accident without reporting to the police,

the Mayor of Maria Rain T., member of the Austrian People's Party,

would have to resign, stated the Councillor Karl Schwabe,

Chairman of the Young Austrian People's Party in the Wolfsberg

District.

However, the Head of the Carinthian Government W. did not

have the slightest moral right to attack Mayor T. for his

refusal to resign. W. had been informed for years that his Deputy

F. had caused an accident after drinking on 10 July 1966 at

Scheifling (Styria). The accident had left two children without

their father. One could not help feeling that the Head of the

Carinthian Government applied a stricter standard to a 'small

mayor of a village', who was a member of another political party,

than to his 'party friend' and Deputy F. It would do W.'s

credibility good, if he would provide within the Austrian

Socialist Party for the political morals which he requires of

others, concluded Schwabe."

19. The applicant referred in his report to a traffic accident

caused by F. in 1966 as a result of which one person had died and

several persons had been injured. In 1967 F. had been convicted by

the Leoben Regional Court (Kreisgericht) of having committed an

offence against security of life (Vergehen gegen die Sicherheit des

Lebens). The Leoben Regional Court had considered as an aggravating

circumstance that F. had been driving "after drinking" ("Alkoholi-

sierung") and had been close to drunken driving (irrefutable at

0.8 per mille). According to the files of the criminal proceedings

against F., the blood alcohol content level had been 0.8 per mille at

the time of the blood test and estimated at 0.6 per mille to 0.7 per

mille at the time of the accident.

20. The applicant was informed of F.'s traffic accident and

subsequent conviction by an article published in April 1984. The

article referred to the circumstances of the accident and in

particular the fact that F. had been called drunk by one of the persons

at the accident. Furthermore it stated that F.'s blood alcohol content

level had been 0.8 per mille but that he had not been convicted of

drunken driving. The applicant verified the contents of this article

in a telephone conversation with its author. His request to have

access to the files concerning the proceedings concerned was allegedly

dismissed by the Leoben Regional Court.

21. The applicant sent his report to several Carinthian

newspapers.

22. On 20 August 1985 the report was published in its entirety by

the "Neue Volkszeitung" with the heading "Different Standards?"

("Zweierlei Maß?").

23. On 4 September 1985 the Deputy Head of the Carinthian

Government F., as a private prosecutor, requested the Klagenfurt

Regional Court to institute criminal proceedings against the

applicant. In the subsequent criminal proceedings the applicant was

represented by Mr. Brunner.

24. On 26 September 1986 the Klagenfurt Regional Court convicted

the applicant of having reproached a person with a criminal offence,

in respect of which the sentence had already been executed, under

S. 113 of the Austrian Criminal Code (Strafgesetzbuch) and of

defamation under S. 111 paras. 1 and 2 of the Criminal Code, by his

press report as published by the "Neue Volkszeitung". The applicant

was sentenced to a fine of AS 3000.-.

25. The Court found that the applicant's report, as published by

the "Neue Volkszeitung", had reproached F. with his traffic accident

dating back about 20 years. Furthermore, reproaching F with

"drinking" ("alkoholisierter Zustand") and comparing (gleichwertige

Gegenüberstellung) this accident with the accident of Mayor T., in

conjunction with the reproach of lacking political morals (apparently

because he did not resign at the time in question), amounted to

defamation.

26. The Court considered that S. 113 of the Criminal Code,

although it intended to protect the integration of criminal offenders

in general, was applicable in any case of reproach with a previous

criminal offence irrespective of whether the integration of the person

concerned had been at risk.

Furthermore, the applicant had not been compelled, within the

meaning of S. 114 para. 2, to make the incriminated reproaches. The

fact that a party feels embarrassed about the accident of one of its

officials did not confer on it a right to "dig out" the very old

accident of an official of the opposite party. Moreover, there was no

"duty to reply" to the political opponent, as the attack referred to

by the applicant was made by the Head of the Carinthian Government W.

and was primarily directed against Mayor T. The applicant, Chairman

of a small district organisation, had not been obliged to react to

this attack, in particular by defaming a third person. Rather, he had

intended to have his name mentioned by the press.

27. Furthermore, the applicant could not plead that the reproach

of "driving after drinking" was correct. The man in the street would

conclude from this statement that F. - like Mayor T. to whom he was

compared - had a blood alcohol content level of more than 0.8 per

mille. A blood alcohol content level of less than 0.8 per mille was

tolerated by the legislator and the public, and did not give rise to a

reproach. The Regional Court also considered that the applicant had

not mentioned that F. had not been convicted of drunken driving (Lenken

eines Fahrzeugs in alkoholbeeinträchtigtem Zustand). He could not

maintain that he intended to refer to a blood alcohol content level of

less than 0.8 per mille as the general aim of the press report was to

describe the two accidents as being morally completely equal,

necessitating the same consequence, namely resignation. The Regional

Court stated that the reproach that a politician lacked political

morals would not, as such, constitute defamation; the decisive element

was the comparison of the two accidents.

As regards this defamation, the applicant could even less

rely on S. 114 para. 2 of the Criminal Code, because the statement

concerned had been incorrect and the applicant had, or should have,

been aware of this. The Regional Court further referred to its

findings concerning S. 113.

28. Finally the Regional Court, having regard to the evidence from

a witness of F.'s accident in 1966 and the expert opinion on the

question of F.'s blood alcohol content level submitted in the criminal

proceedings in 1967, found that the applicant had failed to prove the

truth of his statements.

29. On 5 February 1987 the applicant lodged an appeal (Berufung

wegen Nichtigkeit, Schuld und Strafe) against his conviction to the

Graz Court of Appeal (Oberlandesgericht). In his grounds of appeal

(Ausführung der Berufung), he submitted in particular that he had

drafted the press report in the context of a political discussion in

reply to the Head of the Carinthian Government W. who had criticised a

member of the Austrian People's Party and that party. He had found

himself compelled to justify his party and to inform the public about

W.'s political morals. He found that the two accidents raised the same

problem, namely the compatibility of official functions with a

criminal conviction. Furthermore he maintained that his statements

concerning F.'s driving after drinking were correct and justifiable in

a political discussion.

30. On 29 April 1987 the Graz Court of Appeal dismissed the

applicant's appeal as being unfounded. The Court found in particular

that the applicant could not plead that he had felt compelled to reply

to the Head of the Carinthian Government. Neither had he been ordered

to reply in the name of the Austrian People's Party nor had he himself

been addressed as Chairman of the Young Austrian People's Party or

member of the Party's Regional Executive Committee. This decision was

served upon the applicant on 4 September 1987.

31. On 17 September 1987 the applicant submitted a suggestion to

lodge a plea of nullity for safeguarding the law (Anregung zur

Erhebung einer Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) to the

Vienna Attorney General's Office (Generalprokuratur). He referred,

inter alia, to the right to freedom of expression under Article 10 of

the Convention and the Lingens judgment of 8 July 1986 (Eur. Court

H.R., Series A No. 103).

32. On 27 October 1987 the Attorney General's Office informed the

applicant that it did not intend to lodge such a plea.

B. Relevant domestic law

33. SS. 111 to 114 of the Austrian Criminal Code (Strafgesetzbuch)

concern the offences of defamation and reproach with a criminal

offence in respect of which the sentence has already been executed.

34. S. 111 provides as follows:

[German]

"(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."

[Translation]

"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 not

exceeding 360 day-rates.

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."

35. According to S. 112, the evidence of the truth and the evidence

of good faith shall not be admissible unless the offender pleads the

correctness of the statement or his good faith.

36. S. 113 of the Criminal Code reads:

[German]

"Wer einem anderen in einer für Dritten wahrnehmbaren

Weise eine strafbare Handlung vorwirft, für die die Strafe

schon vollzogen oder wenn auch nur bedingt nachgesehen oder

nachgelassen oder für die der Ausspruch der Strafe vorläufig

aufgeschoben worden ist, ist mit Freiheitsstrafe bis zu drei

Monaten oder mit Geldstrafe bis zu 180 Tagessätzen zu

bestrafen."

[Translation]

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

third person reproaches another of having committed a

criminal offence in respect of which the sentence has

already been executed, or provisionally been suspended,

or in respect of which the determination of the sentence

has been provisionally adjourned shall be liable to

imprisonment not exceeding three months or a fine not

exceeding 180 day-rates."

37. By virtue of S. 114 para. 1 an act as mentioned in S. 111

or S. 113 is justified, if thereby a legal duty is carried out or a

right exercised. Under S. 114 para. 2 a person, who is for special

reasons forced to make an allegation within the meaning of S. 111 or

S. 113 in the particular form and manner, is not to be punished,

unless the allegation made is untrue and the offender, acting with

necessary care, ought to have been aware thereof.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

that his conviction by Austrian Courts for defamation and reproach

with a previous criminal offence violates his right to freedom of

expression within the meaning of Article 10 (Art. 10) of the Convention.

B. Point at issue

39. Accordingly, the issue to be determined is whether there has

been a violation of Article 10 (Art. 10) of the Convention.

C. Article 10 (Art. 20) of the Convention

40. Article 10 (Art. 20) of the Convention provides, insofar 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 protection of the reputation or rights of

others, ...".

41. The applicant's conviction by the Klagenfurt Regional Court on

26 September 1986 constituted an interference with his right to

freedom of expression. This interference contravenes Article 10

(Art.10) of the Convention if it is not justified under Article 10

para. 2 (Art. 10-2), as being prescribed by law, pursuing a legitimate

aim and being necessary in a democratic society.

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

based on SS. 111 and 113 of the Austrian Criminal Code and considers

that it was, therefore, prescribed by law. Furthermore, the conviction

had the aim of protecting the reputation and rights of others, which

is legitimate under Article 10 para. 2 (Art. 10-2). It remains to be

determined whether the interference in question was necessary in a

democratic society.

43. The applicant maintains that the interference with his freedom of

expression was disproportionate to the legitimate aim pursued. He had

intended to contribute to the political debate regarding the question

whether a criminal offender is acceptable in a public function. The

concept of reintegration of criminal offenders, underlying S. 113 of

the Criminal Code, could not apply to politicians - their criminal

past should be open to dicussion. Furthermore, he was entitled to

compare the two accidents in question.

The Government submit that the reintegration of criminal

offenders into society and the protection of their private life

outweigh a general interest in public information. These prevailing

aims can only be achieved if the reproach with a previous criminal

offence constitutes a criminal offence in itself, though with a minor

penalty. Politicians cannot be excluded as their previous convictions

in general only concern the private sphere. Furthermore, the

applicant was convicted of defamation on the ground that he had

imparted information the truth of which he failed to prove.

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

the meaning of Article 10 para. 2 (Art. 10-2) implies the existence of

a "pressing social need". The Contracting States have a certain

margin of appreciation in assessing whether such a need exists, but it

goes hand in hand with a European supervision which covers the basic

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

independent court (cf. Eur. Court H.R., Lingens judgment of 8 July

1986, Series A No. 103, p. 25, para. 39 with further references). The

Commission must determine whether the restriction imposed was

proportionate to the legitimate aim pursued.

45. In exercising its supervisory function the Commission has to

consider that freedom of expression, as secured in Article 10 para. 1

(Art. 10-1), constitutes one of the essential foundations of a

democratic society and one of the basic conditions for its progress

and for each individual's self-fulfilment. Subject to Article 10

para. 2 (Art. 10-2) freedom of expression applies not only to

"information" or "ideas" that are favourably received or regarded as

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

offend, shock or disturb. Such are the demands of that pluralism,

tolerance and broadmindedness without which there is no democratic

society.

Furthermore, in a free political debate the limits of

acceptable criticism are wider as regards a politician as such than as

regards a private individual. Unlike the latter, the former

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 consequently display a greater degree of tolerance. No doubt

Article 10 para. 2 (Art. 10-2) enables the reputation of others to be

protected, and this protection extends to politicians too, even when

they are not acting in their private capacity, but in such cases the

requirements of such protection have to be weighed in relation to the

interests of open discussion of political issues (cf. Lingens

judgment, op. cit. p. 26 para. 41 - 42).

46. The applicant was convicted because in his article he had

referred to a criminal offence committed by F., the Deputy of the Head

of the Carinthian Government, on the occasion of a traffic accident in

1966. His statements in this respect were moreover considered as

defamatory on the ground of a misleading wording and comparison.

47. The background of the article in question was a political

discussion in Carinthia concerning the conviction of the Mayor T.,

member of the Austrian People's Party, and its political implications.

The applicant, Chairman of the Austrian People's Party in a Carinthian

district, reacted to an interview given by the Head of the Carinthian

Government, W, member of the Socialist Party, suggesting T.'s

resignation. At the outset, the applicant agreed that the Mayor T.

should resign. The applicant contended that the Head of the Carinthian

Government had no moral right to criticise T. as he had been informed

about the earlier traffic accident and related criminal behaviour of

his Deputy. Thus there was a lack of political morals in his own party.

48. The Austrian courts punished the applicant under S. 113 of

the Austrian Criminal Code for his reference to the Deputy's previous

criminal offence as such. This provision, which aims at protecting in

general the reintegration of criminal offenders, applies to any

reproach with a previous criminal offence regardless of the actual

need of protection in a particular case. The Austrian courts

determined whether the applicant was excused under S. 114 para. 2

of the Criminal Code as having been compelled to make the incriminated

statement. They considered that the applicant, in his position as

Chairman of a small district organisation of the Austrian People's

Party, did not have to react to the interview given by the Head of the

Carinthian Government, who was a member of the Socialist Party.

49. The Commission notes that at the outset neither the applicant

nor the Deputy F were directly involved in the political discussion

concerning primarily the Mayor T. However, this discussion was

generally related to the question of political morals. In this

respect, the Head of the Government W., in his interview, had

addressed the opponent, the Austrian People's Party, as a whole.

50. In the Commission's opinion, a politician, in particular in a

high ranking position, must face true information relevant as to his

political capabalities, which are determined not only from his

political conduct, but also from his further conduct in public,

including previous criminal convictions. Having regard to the general

wording of S. 113 of the Criminal Code, the criteria for justification

of a true statement under S. 114 para. 2, as applied by the Austrian

courts in the present case, appear too strict and inadequate in the

context of freedom of expression in an open political debate.

51. The considerations of the Austrian courts with regard to

S. 113, in conjunction with S. 114 para. 2, of the Criminal Code

do not, therefore, strike a fair balance between the demands of an

open discussion of political issues and the protection of the

reputation and rights of politicians, in particular their

reintegration into society after a criminal offence.

52. Moreover, the Austrian courts considered the applicant's

report defamatory within the meaning of S. 111 of the Criminal Code as

the applicant had reproached the Deputy F. with an "accident after

drinking" and compared the two traffic accidents in question, alleging

lack of political morals. The courts interpreted the expression

"accident after drinking", taking into account the context of the

expression and in particular the general aim of the report, namely to

compare the accidents, as referring to a blood alcohol content level

of 0.8 per mille or more, the truth of which the applicant could not

prove. On this ground the Austrian courts found an additional reason

not to apply the disculpating exception under S. 114 para. 2 of the

Criminal Code.

53. The applicant stated an opinion on the political morals in

the Socialist Party in general and in particular as regards political

consequences of a criminal conviction in connection with a traffic

accident. The applicant criticised mainly the Head of the Carinthian

Government W., who should care about political morals in his own

Socialist Party, for having used strict criteria in comments

concerning the opponent party. It was the applicant's appraisal that

the two traffic accidents, although they differed as regards their

implications under criminal law, had common features and thus could be

compared with regard to the question of political consequences.

54. The applicant based his opinion on a description of F.'s

accident which he considered to be relevant. In a general language

he referred to the time and place of the traffic accident in

question, the accidental death involved and the circumstance that F.

had drunk alcohol before the accident. In this respect, the applicant

used the expression "after drinking" ("in alkoholisiertem Zustand")

and thereby took up the wording in the judgment of the Leoben Regional

Court of 1967 which had considered F.'s driving "after drinking"

("Alkoholisierung") as aggravating circumstances. The expression

"after drinking" was therefore, as such, correct and differed from the

legal term of "drunken driving" ("Lenken eines Fahrzeugs in

alkoholbeeinträchtigtem Zustand"). Its interpretation by the Austrian

courts was influenced by their considerations as to the defamatory

character of the comparison as a whole. It is true that the applicant

did not expressly state that F. had not been convicted of drunken

driving; however, he did not refer to the criminal proceedings against

F. and his conviction at all. His brief description of F.'s accident

was not presented in such a manner that it could only be understood as

implying that F. had committed the offence of drunken driving.

55. The Commission observes that in a democratic society

politicians have to accept criticism even if it is based on an

annoying comparison of two incidents which might appear far-fetched.

The factual statements supporting such criticism must be correct.

However, in a short contribution to a discussion on the behaviour of

politicians and their political morals, not every word can be weighed

to exclude any possibility of misunderstanding. A narrow

interpretation of factual statements in the light of the related

critical opinion would be likely to impair the freedom of expression

in such a debate.

56. In these circumstances the Commission finds that the

applicant's conviction under SS. 111 and 113 of the Austrian Criminal

Code was not proportionate to the legitimate aim pursued and,

accordingly, not necessary in a democratic society for the protection

of the reputation and rights of others.

D. Conclusion

57. The Commission concludes, by 10 votes to 6 that there has been

a violation of Article 10 (Art. 10) of the Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

OPINION DISSIDENTE DE M. J.-C. GEUS à laquelle se rallient

MM. G. JÖRUNDSSON, J.-C. SOYER, F. MARTINEZ-RUIZ et Sir BASIL HALL

Que les hommes politiques, plus que d'autres, fassent l'objet

de critiques parfois très sévères est parfaitement normal puisque

l'article 10 de la Convention, qui protège la libre expression des

idées, place les auteurs les plus éminents du débat démocratique dans

une position particulière. Que les opinions qu'ils ont émises, que

les positions qu'ils ont prises, que la manière dont ils ont exercé

leurs fonctions publiques soient contestées par leurs adversaires, par

la presse, et, finalement, par tout citoyen, procède de la nature même

d'un régime démocratique.

Il n'en reste pas moins que la sphère de leur vie familiale et

privée doit être protégée comme l'est celle de toute personne. Aux

termes du paragraphe 2 de l'article 10, la liberté d'expression

d'autrui peut être limitée en vue, notamment, de protéger la

réputation et les droits des hommes politiques.

Force est de constater, dans la présente affaire, que l'on est

bien loin d'un grand débat d'idées, ce qui aurait autorisé que la

pensée puisse s'exprimer sans entraves.

Evoquant dans un article de presse un accident de roulage dont

s'était rendu responsable M., un ami politique du requérant, alors

qu'il était sous l'influence de la boisson, son taux d'alcoolémie

étant de 1,75 gr. pour mille, le requérant a rappelé un autre accident

de la circulation dont F., un homme politique appartenant à un autre

parti, s'était rendu responsable dix-neuf ans auparavant, ajoutant que

F. conduisait après avoir bu. En réalité, le taux d'alcoolémie de ce

dernier était de O,8 au moment du test, et avait été estimé à O,6 ou

O,7 au moment de l'accident, si bien que F. n'avait pas été poursuivi

du chef d'ivresse au volant.

Les termes utilisés par le requérant étaient falacieux et de

nature à faire croire que F. était dans un état d'ivresse comparable Ã

celui de M. Le fait que le requérant n'a pas utilisé les termes

légaux pour décrire la prétendue ébriété de F. est ici sans

importance ; en effet, l'ensemble de l'article tendait clairement Ã

démontrer qu'un même état d'ivresse n'avait pas influencé la carrière

politique de F. alors qu'il avait eu des conséquences négatives pour M.

Les faits démontrent en outre que le requérant n'ignorait pas

que les cas de F. et de M. étaient parfaitement dissemblables et ne

pouvait dès lors prétendre être de bonne foi.

Les principes énoncés par la Cour dans l'arrêt Lingens du

8 juillet 1986 conduisent à conclure qu'il n'y avait pas violation de

l'article 10 en l'espèce.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

1 February 1988 Introduction of the application

25 March 1988 Registration of the application

Examination of Admissibility

4 July 1988 Commission's decision to invite the

Government to submit observations

on the admissibility and merits

of the application

2 November 1988 Government's observations

5 January 1989 Applicant's observations in reply

11 October 1989 Commission's decision to declare the

application admissible

Examination of the merits

16 October 1989 Decision on admissibility transmitted

to the parties

7 December 1989 Applicant's observations on the merits

18 December 1989 Government's observations on the merits

10 February 1990) Commission's consideration of the

7 July 1990 ) state of proceedings

8 December 1990 )

8 January 1991 Commission's deliberations on the

merits, final vote and adoption of

the Report

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SCHWABE v. AUSTRIA

SCHWABE v. AUSTRIA

LEXI