Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24773/94

by Andreas WABL

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 10 April 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 July 1994 by

Andreas WABL against Austria and registered on 4 August 1994 under file

No. 24773/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

26 July 1996 and the observations in reply submitted by the

applicant on 18 October 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1951, is an Austrian national and resident

at Großklein. He is a member of the "Austrian Green Party" ("Die

Grünen") and member of the Austrian Parliament. Before the Commission,

the applicant is represented by Mr. T. Prader, a lawyer practising in

Vienna.

The facts of the case, as submitted by the parties, may be

summarised as follows.

A. Particular circumstances of the case

In June 1988 the applicant participated in a protest campaign

against the stationing of interceptor fighter planes (Abfangjäger) near

the Graz airport. In the course of a police action, Police Officer

Fellner charged the applicant with having scratched his right arm, and

he subsequently requested that the applicant be prosecuted for having

caused grave bodily harm (schwere Körperverletzung). In July 1988 the

Graz Public Prosecutor's Office (Staatsanwaltschaft) informed the

applicant that the investigation proceedings against him had been

discontinued.

On 14 August 1988 the "Neue Kronen-Zeitung - Steirerkrone",

issued in Graz, published the following article, entitled "Styrian

Green politician and member of Parliament injured civil servant/Request

for him to be handed over on account of the risk of infection"

("Steirischer Grün-Abgeordneter verletzte Beamten/Jetzt Auslieferungs-

klage wegen Ansteckungsgefahr") as heading and "Police Officer claims:

"AIDS test for Wabl!" ("Gendarm fordert: "AIDS-Test für Wabl!" as

headline. The article read as follows:

"Dramatic contribution to the debate on the privilege of

members of Parliament: Police Officer Walter Fellner (34) from

Aflenz not only requests for Styrian Green politician and member

of Parliament Andreas Wabl to be handed over, but also that the

member of Parliament - who is immune because of privileges, be

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

drew blood.

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

children' - Since he has been involved in a police action against

the opponents of the [planes] the family life of Police Officer

Walter Fellner is ruined. The fear of the immune deficiency

syndrome paralyses the social relations and the sexual life of

the father of three.

The explosive background: On 10 June, shortly after the

[planes] had been stationed, the Police Officer, a senior Police

Inspector, participated in a police action in the area of a camp

of opponents of the [planes] at Graz-Thalerhof airport. On this

occasion, 'frictions' developed between the demonstrators and the

police. The result of an altercation between Fellner and the

Green politician Andreas Wabl was two bleeding scratches, one

five, the other ten centimetres long, to Fellner's right lower

arm. Two witnesses and the local medical officer confirmed the

injuries.

Fellner does not claim that the immune member of Parliament

is suffering from the immune deficiency syndrome, but, as the

Inspector told the 'Steirerkrone': 'The member of Parliament had

been in contact with the other demonstrators and they were not

particularly clean.' Criminal proceedings against Wabl on a

charge of causing bodily injury has been discontinued on the

ground of insignificance. Fellner nevertheless requests for the

member of Parliament to be handed over.

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

infected me', states Fellner and thereby asks the Green

'scratcher' to have a blood sample taken for the purposes of an

immune deficiency syndrome test. Wabl's victim also intends to

claim compensation for moral damages. As regards his claims for

compensation, Fellner is represented by the Graz lawyer Candidus

Cortolezis, who is known to be close to the opponents of the

[planes] and not to the authorities who guard the [planes]."

"Dramatischer Beitrag zur Debatte um die Abgeordneten-

Immunität: Der Aflenzer Gendarmeriebeamte Walter Fellner (34)

fordert neben der 'Auslieferung' des steirischen Grün-

Nationalrates Andreas Wabl wegen Körperverletzung auch die

Durchführung eines AIDS-Tests beim immunen Mandatar. Grund:

Fellner war von Wabl blutiggekratzt worden.

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

Kinder kann i a net amoi mehr obussln' - Seit einem Einsatz gegen

Draken-Gegner in Graz ist das Familienleben des Gendarmen Walter

Fellner aus Aflenz zerstört. Die Angst vor der Immunschwäche

AIDS lähmt die zwischenmenschlichen Beziehungen und das

Liebesleben des dreifachen Familienvaters.

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

der Draken-Stationierung, war der Gendarmeriebeamte im Rang eines

Revierinspektors im Bereich des Draken-Wiederstandscamps am

Grazer Flughafen Thalerhof als Ordnungshüter eingesetzt gewesen.

Dabei war es zu 'Reibereien' zwischen Demonstranten und der

Exekutive gekommen. Die Folgen eines Handgemenges zwischen

Fellner und dem grünen Parlamentarier Andreas Wabl: zwei blutende

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

rechten Unterarm Fellners. Zwei Zeugen und der Distriktsarzt

bestätigten die Verletzungen.

Fellner will dem immunen Nationalrat zwar nicht

unterstellen, daß er mit der Immunschwäche infiziert sei, aber,

so der Inspektor zur 'Steirerkrone': 'Der Abgeordnete hat zuvor

mit anderen Aktivisten Kontakt ghobt, und die worn net unbedingt

sauber.' Eine Anzeige wegen Körperverletzung gegen Wabl ist von

der Staatsanwaltschaft mittlerweile wegen Geringfügigkeit

zurückgelegt worden, Fellner verlangt aber dennoch die

Auslieferung des Mandatars.

'Der Herr Wabl muß sich einer Aids-Untersuchung

unterziehen, er könnte mich ja angsteckt hobn', fordert Fellner

den grünen 'Kratzer' zur Blutabnahme mit anschließendem

Immunschwächetest auf. Für den erlittenen seelischen Schaden

will das Wabl-Opfer Schmerzensgeld einklagen. Die

Fellner-Forderungen vertritt dabei ausgerechnet der Grazer

Rechtsanwalt Dr. Candidus Cortolezis, der bisher bekanntlich den

Draken-Gegnern nahe stand und nicht der (drakenbewachenden)

Exekutive."

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

accompanied by a photograph showing the applicant and two police

officers with the sub-title "AIDS-test for the privileged member of

Parliament? Wabl (centre) in an altercation with the police." ("AIDS-

Test für den immunen Abgeordneten? Wabl (Mitte) beim Handgemenge mit

der Exekutive.").

The article was announced on the front page as follows:

"Green politician Wabl should have an AIDS test.

The Police Officer Walter Fellner from Aflenz asks Green

member of Parliament Andreas Wabl to undergo an AIDS-test. Wabl

scratched Fellner and drew blood in the course of an altercation

(pages 8/9)."

"Grüner Wabl soll nun zu Aids-Test.

Der Aflenzer Gendarm Walter Fellner verlangt, daß sich der

Grün-Parlamentarier Andreas Wabl einem Aids-Test unterzieht.

Wabl hatte Fellner bei einem Handgemenge blutig gekratzt

(Seiten 8/9)."

The applicant requested the author of the article in question,

who had not contacted him prior to its publication, to publish a

rectification as well as a statement drafted by the applicant.

The text of this statement, published in the "Steirerkrone" on

17 August 1988, read as follows:

"In the context of the report on Fellner's request for an

AIDS-test, the 'Steierkrone' wishes to clarify that, when

mentioning the disease AIDS, it never intended to defame, for

personal or political reasons, the member of Parliament Andreas

Wabl. We wish to apologise for any gross claims which were not

appropriate to our standards of fairness and our reputation as

journalists."

"Die 'Steirerkrone' möchte im Zusammenhang mit dem Bericht

über die Aids-Test-Forderung von Fellner klarstellen, daß es nie

beabsichtigt war, NR-Abg. Andreas Wabl mit der Krankheit AIDS

persönlich oder politisch zu diffamieren. Für grobe

Unterstellungen, die unserer selbst auferlegten Fairneß und

journalistischen Ehre nicht angemessen waren, möchten wir uns

entschuldigen."

This statement was printed as an annex to an article with the

headline "Defamation of Green politician not intended/hygiene expert

Möse reassures: 'No AIDS-infection from scratches!'" ("Diffamierung von

Grün-Abgeordneten nicht beabsichtigt/Hygieniker Möse beruhigt: 'Kein

AIDS-Fall durch Kratzer!'"), with the following text:

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

Josef Möse, reassured the Police Officer Walter Fellner from

Aflenz, who feared an infection with AIDS from scratches which

were allegedly inflicted on him by Green member of Parliament

Andreas Wabl. Möse: 'AIDS cannot be caught by scratches.'

Möse, President of the Austrian AIDS Committee, informed

the 'Steirerkrone': 'Nobody has anything to fear from a simple

scratch. Infection is impossible.' The Head of the Graz

Institute for Hygiene immediately offered the senior Police

Inspector and his family 'a discussion to explain matters could

be arranged at any time'.

As reported Fellner feared that he had been infected with

the AIDS virus by two scratches to his right lower arm, which

were inflicted on him in the course of an altercation with the

Green member of Parliament Andreas Wabl. Criminal proceedings

on a charges of causing bodily harm (superficial reddening) have

been discontinued by the Graz Public Prosecutor's Office on the

ground that the factual elements of the offence were not

present."

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

beruhigte am Dienstag den Aflenzer Gendarmen Walter Fellner, der

befürchtete, durch Kratzer mit AIDS infiziert worden zu sein, die

ihm der grüne Abgeordnete Andreas Wabl bei einer Draken-

Demonstration angeblich zugefügt hatte. Möse: 'Durch Kratzer kann

AIDS nicht übertragen werden.'

Möse, er ist Vorsitzender der österreichischen AIDS-

Kommission, zur 'Steirerkrone': 'Vor einem einfachen Kratzer

braucht man keine Angst zu haben. Eine Ansteckung ist nicht

möglich.' Der Chef des Grazer Hygiene-Institutes erklärte sich

sofort bereit, mit dem Revierinspektor und seiner Familie

'jederzit ein aufklärendes Gespräch zu führen'.

Wie berichtet, hatte Fellner befürchtet, durch zwei Kratzer

am rechten Unterarm, die ihm bei einem Handgemenge mit dem grünen

Nationalratsabgeordneten Andreas Wabl zugefügt worden waren,

möglicherweise mit dem AIDS-Virus infiziert worden zu sein. Eine

Anzeige wegen Körperverletzung (oberflächliche Rötungen) wurde

von der Staatsanwaltschaft Graz wegen mangelnden Tatbestandes

bereits zurückgelegt."

The article further referred to the applicant's claims that the

matter was a political campaign intending to bring him into disrepute.

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

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

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

about his consideration regarding the background of the events which

he considered to be a "political character assassination" ("politischer

Rufmord"). When asked by a journalist how he felt about the above

events, the applicant replied as follows:

"This is Nazi-journalism."

"Das ist Nazi-Journalismus."

This statement was quoted in the Austrian media.

On 29 August 1988 the company publishing the newspaper "Kronen-

Zeitung" brought injunction proceedings under S. 1330 of the Civil Code

(Allgemeines Bürgerliches Gesetzbuch) against the applicant with the

Graz Regional Civil Court (Landesgericht für Zivilrechtssachen). It

requested that the applicant be prohibited from repeating the statement

according to which the contents of the "Kronen-Zeitung" were "Nazi-

journalism" and to arrange for a rectification.

In the context of private prosecution proceedings instituted by

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

Regional Criminal Court (Landesgericht für Strafsachen), as confirmed

by the Vienna Court of Appeal on 5 February 1990, convicted the company

publishing the "Kronen-Zeitung" of defamation, pursuant to the Media

Act (Mediengesetz), and ordered it to pay compensation to the

applicant.

On 5 February 1993 the Graz Regional Civil Court dismissed the

injunction claims. The Court observed that S. 1330 of the Civil Code

provided for a prohibitory injunction in respect of any statement of

facts, which jeopardized someone's reputation, gain or livelihood, the

untruth of which was known or must have been known. Considering all

circumstances and in particular the background of the press conference

and the impugned statement, the Court found that the applicant had used

the expression "Nazi-journalism" as a value-judgment. The Court based

its judgment on the statements made by the applicant and various

witnesses as well as on an expert opinion regarding the interpretation

of the expression "Nazi-journalism".

On 30 June 1993 the Graz Court of Appeal dismissed the

plaintiff's appeal (Berufung). The Court of Appeal confirmed the

findings of the first instance court that the impugned statement was

a value-judgment. Furthermore, even assuming that the impugned

statement was an untrue statement of facts, the plaintiff had failed

to show that the applicant had known or should have known that this

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

to the expert opinion according to which the defamation of political

opponents with an alleged illness was an essential element of the

journalism under the Nazi regime. Furthermore, even assuming that the

impugned statement amounted to an insult, it was justified as a

reaction to the plaintiff's previous publication on the applicant.

On 14 December 1993 the Austrian Supreme Court (Oberster

Gerichtshof), upon the plaintiff's further appeal (außerordentliche

Revision, amended the Appeal Court's decision and issued a preliminary

injunction order against the applicant prohibiting it from repeating

the statement that the article "Styrian Green-Party politician and

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

over on account of the risk of infection, Police Officer claims: 'AIDS

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

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

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

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

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

comprised a statement of facts. The question whether or not "facts"

had been disseminated that to be examined against the general context

of the impugned statement, as understood by the man in the street. In

this respect the least favourable interpretation had to be held against

the offender. Objective criticism presupposed that the value-judgment

corresponded to unchallenged or proven facts. The Supreme Court

further observed that under S. 1330 para. 2 of the Civil Code the

plaintiff had to prove that the discrediting statement was untrue,

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

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

question whether or not a statement constituted an unlawful

interference with a person's reputation and credit could only be

assessed in balancing all relevant circumstances.

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

journalism" had concerned an article published by the plaintiff, and

had been raised on the occasion of a press conference concerning the

plaintiff's defamatory reporting on the applicant. The impugned

statement had been an answer to a question put by one of the

journalists, and, in the circumstances, they had no doubts that this

statement only related to the particular article of 14 August 1988.

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

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

the applicants criticism "Nazi-journalism".

The Supreme Court considered further whether this value-judgment

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

plaintiff could claim a prohibitory injunction under this provision,

if, considering all circumstances, the plaintiff's interests were not

less important than the applicant's interests. The Supreme Court found

that the plaintiff had an interest not to be associated with the

National Socialism. The reproach with "Nazi-journalism" would be close

to a charge of criminal behaviour under the National Socialism

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

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

plaintiff which contained the supposition that the applicant was

suffering from the immune deficiency syndrome, i.e. a contagious

disease, which provokes fear and antipathy in great parts of the

population. His indignation about the defamatory reporting might

appear understandable but could not justify the reproach that the

plaintiff's way of reporting comes at least close to criminal

behaviour, in particular as he himself could have brought proceedings

under S. 1330 of the Civil Code against the plaintiff. Balancing all

circumstances, the Supreme Court concluded that the applicant's

interests did not outweigh the plaintiff's interests. The right to

freedom of expression could not justify such a serious attack on the

plaintiff's reputation. For the same reasons, the impugned statement

could not be regarded as permissible political criticism, which is

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

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

proceedings, there was a risk that he repeated the statement in

question.

This decision was served on the applicant's counsel on

8 February 1994.

B. Relevant domestic law

S. 1330 of the Austrian Civil Code (Allgemeines Bürgerliches

Gesetzbuch) provides as follows:

"(1) Anybody who, due to defamation, suffered a real damage or

loss of profit, may claim for compensation.

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

jeopardize someone's reputation, gain or livelihood, the untruth

of which was known or must have been known to him. In this case

there is also a right to claim a revocation and the publication

thereof..."

"(1) Wenn jemandem durch Ehrenbeleidigung ein wirklicher Schaden

oder Entgang des Gewinnes verursacht worden ist, so ist er

berechtigt, den Ersatz zu fordern.

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

Kredit, den Erwerb oder das Fortkommen eines anderen gefährden

und deren Unwahrheit er kannte oder kennen mußte. In diesem Fall

kann auch der Widerruf und die Veröffentlichung desselben

verlangt werden..."

After the Second World War, Austria introduced legislation

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

National Socialism Prohibition Act (Verbotsgesetz). In the State

Treaty (Staatsvertrag) of 1955, confirmed its undertaking to prohibit

any such activities.

COMPLAINTS

The applicant complains under Article 10 of the Convention about

the Austrian Supreme Court decision of 14 December 1993 prohibiting him

from repeating the reproach with "Nazi-journalism".

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 July 1994 and registered on

4 August 1994.

On 12 April 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

26 July 1996, following an extension of the time-limit. The applicant

replied on 18 October 1996.

THE LAW

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

Convention about the Austrian Supreme Court decision prohibiting him

from repeating that a particular article published in the "Kronen-

Zeitung" amounted to "Nazi-journalism".

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, ..."

The Government submit that the Supreme Court decision interfered

with the applicant's right under Article 10 para. 1 (Art. 10-1),

however, that this interference was justified under paragraph 2 of this

provision. They argue in particular that this measure was necessary

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

rights of others. Referring to the case-law of the Convention organs,

they submit that the applicant went beyond the limits of permissible

statements in a political debate. Against the particular historical

background, it is imperative to afford effective legal protection

against unjustified accusations of expressing Nazi attitudes. Thus the

Austrian courts generally regarded such accusations as defamatory.

Even taking the background of the applicant's statement into account,

his comment was excessive. Moreover, the applicant's statement did not

contribute to a general debate on Austrian journalism, but was a biased

and insulting reaction to an article defaming him.

The applicant contests the Government's views. He considers that

in a democratic society, a critical discussion should be permissible.

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

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

slashing manner.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and of fact

under the Convention, the determination of which should depend on an

examination of the merits of the application. The Commission

concludes, therefore, that the application is not manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for declaring it inadmissible have been

established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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WABL v. AUSTRIA

WABL v. AUSTRIA

LEXI