AS TO THE ADMISSIBILITY OF

                      Application No. 22714/93

                      by Alfred WORM

                      against Austria

     The European Commission of Human Rights sitting in private on

27 November 1995, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 C.L. ROZAKIS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

           Mr.   H.C. KRÜGER, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 28 July 1993 by

Alfred WORM against Austria and registered on 30 September 1993 under

file No. 22714/93;

     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 2 May

     1995 and the observations in reply submitted by the applicant on

     23 June 1995;

-    the decision of the First Chamber of 18 October 1995 to

     relinquish jurisdiction in favour of the Plenary Commission;

-    the deliberations of the plenary Commission on the application

     of the six months' time-limit;

     Having deliberated;

     Decides as follows:

THE FACTS

     The facts, as submitted by the parties, may be summarised as

follows.

     The applicant, born in 1945, is an Austrian national, residing

in Vienna. In the proceedings before the Commission he is represented

by Mr. W. Masser, a lawyer practising in Vienna.

A.   The particular circumstances of the case

     The applicant, who is a journalist by profession, was working for

"profil", an Austrian periodical dealing mostly with politics. He

investigated in and reported on the case of Mr. Androsch, a former

Minister of Finance, who was involved in the following sets of criminal

proceedings.

     In 1989 Mr. Androsch was convicted by the Vienna Court of Appeal

(Oberlandesgericht), of having made false statements as a witness in

two incidents.  The Court found that he had, before a parliamentary

investigation committee (Untersuchungsausschuß), inter alia wrongly

stated that certain amounts of money on an account belonging to him,

had been put at his disposal by a Mr. S., whereas they had actually

been transferred from anonymous accounts, belonging to him and his

wife.  Further, he had, in criminal proceedings against financial

officers charged with abuse of authority, stated that several anonymous

accounts belonged to Mr. S., although they belonged to him, his wife

and his mother.

     In 1991 the Vienna Regional Criminal Court (Landesgericht für

Strafsachen) conducted criminal proceedings against Mr. Androsch

concerning charges of tax evasion.  It held hearings, inter alia, on

25 and 26 May 1991.

     On 1 July 1991 the periodical "profil" published a two-page

article by the applicant, relating to the above proceedings.

     The article starts with describing the atmosphere in the court

room, stating that Mr. Androsch and his counsel displayed a

condescending attitude towards the presiding judge and the public

prosecutor.  In contrast, the latter two are described as being well-

prepared and polite.  Then the article turns to the anonymous accounts

at issue in the proceedings.  It suggests that the construction used

was quite simple, because Mr. Androsch, being in office as a Minister

of Finance until January 1981, could count on the misinterpreted

loyalty of his financial officers.  After he left, these officers were

busy covering up the whole matter.  When this was no longer possible,

as a court started investigations, Mr. Androsch's advisers delayed the

proceedings.  Next, the article turns to Mr. Androsch's defence,

stating that he brought his deceased adoptive father into play, to whom

he had already earlier ascribed black money, which the latter had

actually never owned.  The article then states that inter alia the

Vienna Court of Appeal and the Finance Authorities had already proved

that Mr. Androsch was lying, as regards this question.  It continues

as follows:

     "Der Geldfluß der sieben Schwarzgeldkonten läßt keine andere

Auslegung als die der Steuerhinterziehung durch Androsch zu. Dessen

Verantwortung vor Gericht war - nach so vielen Jahren hätte man sich

zumindest zurechtgezimmerte Argumente erwartet - blamabel: Immer dann,

wenn ihn Richter Zeilinger auf den Punkt fragte, flüchtete er sich

entweder in Erinnerungslücken oder schob den toten 'Wahlvater' vor.

Sogar der verblichene Sir Arthur Stein, der Erforscher der

Seidenstraße, wurde strapaziert: Von ihm will er ein Legat geerbt

haben."

     "The sloshing around of money of the seven "black" accounts

permits no other interpretation than that Androsch was evading taxes.

His defence before the court - after so many years one would at least

have expected tenable arguments to have been made up - was disgraceful:

Whenever judge Zeilinger asked him a precise question he escaped into

memory lapses or dragged in his deceased 'adoptive father'.  Even the

late Sir Arthur Stein, the explorer of the silk route, was invoked: He

is supposed to have inherited a legacy from him."

     The article goes on to state that Mr. Androsch did not present

any new arguments, while his counsel tried to describe him as a victim

of politics.  Then it turns again to the psychological relationship

between the presiding judge and the accused, stating that the presiding

judge remained polite, even when ostentatious self-confidence of the

accused obviously unnerved him.  Mr. Androsch on the other hand turned

more and more to the public in the court room, holding general speeches

instead of answering precise questions.  Finally, the article reports

that the proceedings will continue in autumn, in order to take further

evidence.  It suggests that this will give Mr. Androsch time to reflect

on whether it can be reconciled with the principles of the rule of law

that a Minister of Finance holds black money accounts.

     Subsequently, the applicant was charged under S. 23 of the Media

Act (Mediengesetz) as regards the passage quoted above, for having

exercised prohibited influence on criminal proceedings (verbotene

Einflußnahme auf ein Strafverfahren).

     On 12 May 1992 the Vienna Regional Criminal Court acquitted the

applicant.  It found that the text at issue was not likely to influence

the outcome of the proceedings against Mr. Androsch and that it was not

established that the applicant had acted with such an intention.

     The Court recalled that the Vienna Regional Criminal Court

sitting as a court of two judges and two lay judges (Schöffengericht)

had, on 8 October 1991, convicted Mr. Androsch of having evaded taxes

between 1973 and 1981 and had imposed a fine of AS 1,8 million.  The

Court found that, in establishing whether the incriminated passage had

been likely to influence the result of these proceedings, the wording

and contents of the article as a whole, as well as the contents of the

proceedings reported upon, the person of the accused, Mr. Androsch, and

the person of the applicant had to be taken into account.  The article,

unlike court reports of the scandal press, analysed the conduct of the

presiding judge, the public prosecutor, the defence counsel and in

particular the accused, Mr. Androsch, almost as a psychologist would

do it.

     Further, the Court found that it was clear for every reader, who

was vaguely familiar with the issue, that the applicant, who had been

working for "profil" as a journalist since many years, had intensely

dealt with the so called "Causa Androsch" and had frequently reported

upon it.  It appeared from the article that the applicant assumed that

the investigations of the Finance Authorities were correct.  He

subjected the statements made by the accused at the trial on 25 and

26 May 1991 to a critical discussion from a psychological point of

view.  However, his way of writing and the wording used were not likely

to influence these proceedings.  Even to a lay judge, the applicant's

person and his activities as a journalist in the "Causa Androsch" were

well-known.  Thus he would not expect the applicant to give a neutral

account of the proceedings.  Moreover, it could not be established that

the applicant had acted with the intention to influence the outcome of

the proceedings, in particular as it appeared from his statements in

court that he was convinced that Mr. Androsch would in any case be

convicted.

     On 19 October 1992, the Vienna Court of Appeal, on the Public

Prosecutor's appeal, held a hearing in presence of the applicant and

his counsel.  The applicant was questioned and stated in particular

that the first sentence of the incriminated passage, namely that "the

sloshing around of money of the seven "black" accounts permits no other

interpretation than that Mr. Androsch was evading taxes", was a quote

from the public prosecutor's statement during the trial.  The latter

had also frequently referred to the judgment of the Vienna Court of

Appeal in the proceedings against Mr. Androsch relating to charges of

having made false statements as a witness.

     At the end of the hearing, the operative part of the judgment as

well as the relevant reasons were given orally.  The Court convicted

the applicant under S. 23 of the Media Act for having exercised

prohibited influence on criminal proceedings and imposed a fine of 40

daily rates of AS 1.200 each (i.e. AS 48,000) or 20 days' imprisonment

in case of default of payment.

     The Court found that the applicant had subjected Mr. Androsch's

defence, i.e. evidence in criminal proceedings, not only to a critical

discussion from a psychological point of view, as assumed by the

Regional Court, but to a negative evaluation.  It also contested the

Regional Court's assumption that everybody including the lay judges

knew the applicant's long-standing commitment in the Androsch case and

would, therefore, not be influenced by his article.  It was in no way

certain that the lay judges regularly read "profil".  On the contrary,

in spectacular proceedings like the ones at issue, it happened

frequently that lay judges followed the reports in papers they did not

usually read.  There was no doubt that, at least with regard to the lay

judges, the reading of the incriminated article was likely to influence

the outcome of the criminal proceedings.

     Moreover, the applicant's expertise and involvement in the

subject matter were rather an argument for, not against, establishing

that he had written the article with the intention to influence the

outcome of the proceedings.  He had made research in the case since

1978 and had written more than hundred articles about it.  From the

beginning he had been convinced that Mr. Androsch had committed tax

evasion.  In the incriminated article he had not only criticised Mr.

Androsch's statement but had also anticipated the outcome of the

proceedings, namely the conviction of the accused.

     The judgment was served on the applicant on 25 March 1993.

B.   Relevant domestic law

     S. 23 of the Media Act (Mediengesetz) is entitled 'prohibited

influence on criminal proceedings' (Verbotene Einflußnahme auf ein

Strafverfahren) and reads as follows:

     "Wer in einem Medium während eines gerichtlichen Strafverfahrens

nach rechtskräftiger Versetzung in den Anklagestand, ... , vor dem

Urteil erster Instanz den vermutlichen Ausgang des Strafverfahrens oder

den Wert eines Beweismittels in einer Weise erörtert, die geeignet ist,

den Ausgang des Strafverfahrens zu beeinflussen, ist vom Gericht mit

Geldstrafe bis zu 180 Tagessätzen zu bestrafen."

     "Anyone who discusses, subsequent to the indictment, ..., (and)

before the first instance judgment in criminal proceedings, the

probable outcome of these proceedings or the value of evidence in a way

likely to influence the outcome of the proceedings shall be fined by

the court up to 180 daily rates.

COMPLAINTS

     The applicant complains under Article 10 of the Convention that

his conviction under S. 23 of the Media Act violated his right to

freedom of expression.  He submits in particular that there was a

public interest in reporting about the proceedings against

Mr. Androsch, as he was a former Minister of Finance, and the alleged

tax evasion concerned the period when he had been in office.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 28 July 1993 and registered on

30 September 1993.

     On 17 January 1995 the Commission (First Chamber) decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure.

     The Government's written observations were submitted on

2 May 1995.  The applicant replied on 23 June 1995.

     On 18 October 1995 the First Chamber decided to relinquish

jurisdiction in favour of the plenary Commission.

THE LAW

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

Convention that his conviction under S. 23 of the Media Act violated

his right to freedom of expression.

     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 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, ...  or for

     maintaining the authority and impartiality of the judiciary."

a.   The Government submit that the applicant failed to introduce his

complaint within the six months' time-limit laid down in Article 26

(Art. 26) of the Convention.  In the circumstances of the case, the

time-limit should start running at the date of the oral pronouncement

of the final decision, which was given by the Vienna Court of Appeal

on 19 October 1992.  In particular the Government, referring to the

Commission's decision on the admissibility of Application No. 5759/72

(Dec. 20.5.76, D.R. 6 p. 15), argue that the applicant and his counsel

were present when the judgment was pronounced.   Moreover, all the

reasons were given orally, using almost the same wording as the later

written version of the judgment, as a draft had already been prepared.

     The applicant contests the Government's view.  He submits that

the time-limit under Article 26 (Art. 26) of the Convention should only

start to run on the date on which the written version of the final

decision was served, i.e. on 25 March 1993.  Referring to the

Commission's decision on the admissibility of Application No. 10889/84

(Dec. 11.5.89, D.R. 56 p. 40), he argues that even if a judgment has

been pronounced orally, the applicant is not in a position to acquaint

himself with its entire reasoning, until he has received the written

version.  In particular where complex legal issues are concerned, an

applicant cannot be expected to introduce his complaint on the basis

of an oral decision.  Moreover, he argues that he was heard in

considerable detail at the hearing of 19 October 1992 before the Vienna

Court of Appeal.  Therefore, he did not expect and was not aware of the

existence of a readily prepared draft judgment.

     According to Article 26 (Art. 26) of the Convention, the

"Commission may only deal with the matter ...  within a period of six

months from the date on which the final decision was taken."

     The Commission, in the case relied upon by the Government, which

related to complaints about the alleged unfairness of criminal

proceedings, has held that, if a judgment is delivered in open court

in presence of the applicant's lawyer, the period starts to run from

the date of delivery provided that the applicant would understand from

the spoken judgment that his grievances had not been corrected or

remedied (No. 5759/72, Dec. 20.5.1976, loc. cit.).

     In a case concerning the length of criminal proceedings, in which

first the operative part of the final judgment was notified to the

applicant, and the reasons later, the Commission found that the period

of six months must be counted from the date on which the applicant

received the full text, giving reasons, of the judgment at issue.  The

Commission considered that the serving merely of the operative

provisions of the decision rejecting his appeal did not enable the

applicant to decide whether an application to the Commission was likely

to succeed or to give reasons, even briefly, for such an application

(No. 9299/81, Dec. 13.3.84, D.R. 36 p. 20).  Likewise, in a further

case concerning the alleged unfairness of criminal proceedings, in

which only the operative part of the final judgment was given orally,

the Commission found that the period of six months only started to run

from the moment when the applicant was able to acquaint himself with

the reasons for the judgment concerned, which were made public when the

text of the judgment was lodged with the court registry (No. 10889/84,

Dec. 11.5.88, D.R. p. 40, p. 56 et seq.).

     The question whether the period of six months should run from the

oral pronouncement of the final decision or the service of the written

text of the judgment, raised by the parties in the case of Oberschlick

v. Austria, was left open, as the application had been filed on the

last day of the period of six months if it should have to be counted

from the date when the judgment was pronounced orally (No. 11662/85,

Dec. 10.5.89, not published; see also Eur. Court H.R., Oberschlick

judgment of 23 May 1991, Series A no. 204, p. 21, paras. 38-40).

     In recent decisions, the Commission found that since an

applicant, who was acquitted in the second instance proceedings,  only

complained about the length of the proceedings, he could lodge his

application with the Commission within six months from the

pronouncement of the operative part of the final judgment without

knowing the reasons for the judgment (No. 19528/94, Dec. 30.11.94, not

published; No. 19029/91, Dec. 16.1.95, not published).

     Moreover, the Commission considered that when an ex tempore

judgment is delivered orally, in the presence of an applicant's

counsel, and reasons are given, the later formal order recording the

judge's decision which merely repeats the operative part of the

judgment and contains no further reasoning, is irrelevant for the

determination of the period of six months (No. 24856/94, Dec. 7.12.94,

not published).

     Furthermore, in a case relating to complaints under Article 6

(Art. 6) about the alleged unfairness of disciplinary proceedings, the

Commission found that, as a general rule, the period of six months must

be counted from the date of the final decision and that this rule

applied in particular when the decision concerned had been pronounced

in open court and in the presence of the applicant's counsel

(No. 24631/94, Dec. 28.2.95, not published).

     The Commission observes that in cases where, pursuant to domestic

law, the applicant did not obtain knowledge of the final decision other

than by its notification, the date of the notification of the full text

of the decision was considered relevant for the purposes of calculating

the period of six months (No. 9908/82, Dec. 4.5.83, D.R. 32 p. 266; No.

17116/90, Dec. 11.5.92, not published; No. 24631/94, Dec. 28.2.95, not

published; see also Eur. Court H.R., Otto-Preminger-Institut judgment

of 20 September 1994, Series A no. 295-A, p. 16, para. 41).

     The Commission considers it desirable in the interests of

potential applicants as well as the High Contracting States against

which applications are brought to clarify the date from which the

period of six months should be counted and for this purpose to

reconsider its previous case-law.

     The Commission recalls that the period of six months provided for

in Article 26 (Art. 26) has a double aim.  It has the primary purpose

of ensuring legal certainty (No. 6181/73, Dec. 5.10.74, Collection 46

p. 188; No. 9587/81, Dec. 13.12.82, D.R. 29 p. 228; No. 10626/83,

Dec. 7.05.85, D.R. 42 p. 205), but also fulfils the need of providing

the person concerned with sufficient time to evaluate the desirability

of submitting an application to the Commission and to decide on the

content thereof (cf. No. 10889/84, loc. cit.; No. 19029/91,

Dec. 16.1.95, not published).

     The Commission finds that Article 26 (Art. 26) contains an

autonomous rule which has to be interpreted and applied in a given case

in such a manner as to ensure to any applicant claiming to be the

victim of a violation by one of the Contracting Parties of one of the

rights set forth in the Convention and its Protocols the effective

exercise of the right of individual petition, pursuant to Article 25

para. 1 (Art. 25-1) of the Convention. The Commission therefore

considers that when, in accordance with domestic law, the written text

of the final decision has to be served on the applicant, or in case of

legal assistance, upon his counsel, the period of six months should be

counted from the date of this service, irrespective of whether the

judgment concerned, or part thereof, was previously pronounced orally.

     The Commission notes that the Vienna Court of Appeal, on

19 October 1992, convicted the applicant, after he had been acquitted

by the lower court, and that this decision was served on 25 March 1993.

The application was introduced on 28 July 1993, i.e. less than six

months later.

     In conclusion, the Commission finds that the applicant has lodged

his application within the period of six months laid down in Article 26

(Art. 26) of the Convention.

b.   As regards the merits of the application, the Government submit

that the prohibition contained in S. 23 of the Media Act is necessary

in a democratic society in order to enable the judges, and in

particular the lay judges, to exercise their office independently

without undue influence through media campaigns.  The said provision

only incriminates such reports on criminal proceedings as are likely

to influence their outcome and are disseminated before the judgment of

first instance.  In the present case, the applicant, in writing that

no other interpretation was possible than that Mr. Androsch was evading

taxes, made a statement, which amounted to a typical media prejudgment

of the accused.  He thereby went beyond the limits of a permissible

reporting on the trial.  Moreover, the Government submit that the

interference complained of was also necessary for the protection of the

accused, and in particular to guarantee that the presumption of

innocence was respected by the media.  Finally, the Government submit

that the fine imposed on the applicant was not disproportionate to

these aims.

     The applicant contests the necessity of the interference with his

right to freedom of expression.  He submits in particular that his aim

was not to discuss the value of Mr. Androsch's statements as evidence

in the pending criminal proceedings, but to comment on his moral

responsibility and the condescending attitude he adopted during the

trial.  He points out that Mr. Androsch was a former Minister of

Finance and that the charges of tax evasion related to the time when

he was in office.  Moreover, the applicant submits that Mr. Androsch

had already in 1989 been convicted of making false statements in the

context of the same facts as were relevant in the criminal proceedings

at issue.  He contests that the incriminated statements were likely to

influence the court, as Mr. Androsch's former conviction was a fact

which the court had to take into account in any case.  In the

circumstances of the case, the public interest in reporting on this

matter outweighed the interest in protecting the court from undue

influence.

     After an examination of this issue in the light of the parties'

submissions, the Commission considers that it raises questions of fact

and law, which can only be determined by an examination of the merits.

It follows that the application cannot be declared inadmissible as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.  No other grounds for inadmissibility

have been established.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION ADMISSIBLE,

     without prejudging the merits of the case.

Secretary to the Commission            President of the Commission

       (H.C. KRÜGER)                         (S. TRECHSEL)