Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21940/93

by D. F.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 2 September 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 14 May 1993 by

D. F. against Austria and registered on 27 May 1993 under file

No. 21940/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, living in Rankweil

(Austria) and born in 1952. Before the Commission he is represented by

Mr. A. Adam, a lawyer practising in Neulengbach.

The facts, as they have been submitted by the applicant, may be

summarised as follows.

A. Particular circumstances of the case

On 21 February 1992 Dr. S., the senior gynaecologist of the

Feldkirch Regional Hospital (Landeskrankenhaus), published a letter to

the editor in the "Vorarlberger Nachrichten" newspaper about the

possible medical applications of RU 486, a drug interrupting pregnancy.

Dr. S. summarised briefly the characteristics of RU 486. Inter alia,

he considered that RU 486 could have some useful effects, and might

also be used as a medicine for treatment of some cancers.

In March 1992 the applicant thereupon sent circular letters to

700 physicians practising in Vorarlberg and to all households in this

region. The letter, entitled "RU 486 - cry for help from Vorarlberg -

Scandal in the Feldkirch Regional Hospital", dealt with Dr. S.'s views

on RU 486.

On 24 April 1992 the Feldkirch Regional Court (Landesgericht),

upon Dr. S.'s request for prosecution (Privatanklage) and after having

held a hearing, convicted the applicant of defamation (Ãœble Nachrede)

under S. 111 of the Criminal Code (Strafgesetzbuch). The applicant was

fined 4,800 AS. In these and the following proceedings the applicant

was assisted by Mr. A. Adam.

The Court noted that the applicant, referring to the letter

published by Dr. S., had called him in his circular letters inter alia

a "Supporter of homicides" (Tötungsbefürworter) and a fighter for the

"Deathpill". He furthermore had urged Dr. S. "to stop the homicides at

his hospital". The Court considered that Dr. S., by publishing his

letter to the editor, only had intended to provide information about

the possible medical applications of RU 486. Moreover, Dr. S. clearly

had stated in his letter that he would strongly object to RU 486's

introduction in Austria, if it were just an "abortion-pill".

The Court held that these disparaging statements accused Dr. S.

of having a contemptible character and of having offended common

decency. Thus, he was considerably lowered in the circular letter's

reader's esteem.

With regard to the applicant's requests to have witnesses

examined on the features of RU 486, the Court considered that the

designation of Dr. S. as a "Supporter of homicides" was independent of

RU 486's characteristics. It thus held that the evidence suggested by

the applicant was of no relevance to the question of the applicant's

guilt.

On 6 August 1992 the Innsbruck Court of Appeal (Oberlandes-

gericht) confirmed the findings of the Regional Court and dismissed the

applicant's appeal (Berufung) and his plea of nullity (Nichtigkeits-

beschwerde).

The Court considered in particular that the applicant's

statements were not covered by the right to freedom of expression.

Furthermore, the refusal to have evidence and witnesses examined did

not restrict the rights of the defence, as these requests were unable

to prove Dr. S.'s alleged contemptible character.

The decision was served on the applicant on 16 November 1992.

B. Relevant domestic law

S. 111 of the Austrian Criminal Code (Strafgesetzbuch), which

deals with the offence of defamation, provides as follows:

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

person accuses another of possessing a contemptible character or

attitude or of behaviour contrary to honour or morality and of

such a nature as to make him contemptible or otherwise lower him

in public esteem shall be liable to imprisonment not exceeding

six months or a fine.

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 not be liable if circumstances are established which

gave him sufficient reason to assume that the statement was

true."

COMPLAINTS

The applicant complains under Article 10 of the Convention about

a violation of his right to freedom of expression. He further complains

under Article 6 of the Convention that the Courts rejected evidence

proposed by him and refused to hear the witnesses on his behalf.

THE LAW

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

Convention that his conviction for defamation amounted to a violation

of his right to freedom of expression.

Article 10 (Art. 10) of the Convention, as far as relevant,

provides 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 Commission finds that the applicant's conviction of

defamation by the Feldkirch Regional Court, as confirmed upon appeal,

constituted an interference with the exercise of his freedom of

expression. Such interference is in breach of Article 10 (Art. 10),

unless it is prescribed by law and necessary in a democratic society

for one of the aims mentioned in paragraph 2 of this provision.

The Commission finds that applicant's conviction was based on

S. 111 of the Austrian Criminal Code, and thus prescribed by Austrian

law. The Commission also considers that the measure was aimed at

protecting "the reputation or rights of others", namely of Dr. S., the

physician criticised by the applicant, which is a legitimate aim under

Article 10 para. 2 (Art. 10-2).

It remains thus to be determined whether the interference was

"necessary in a democratic society". In this respect, 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 (Eur. Court H.R., Observer and Guardian judgment

of 26 November 1991, Series A No. 216, pp. 29-30, para. 59).

The Commission notes that the applicant was convicted of

defamation because he had, in a circular letter distributed to several

physicians and all households in the Region of Vorarlberg, inter alia

called Dr. S. "Supporter of homicides". With his circular letter, the

applicant had reacted to Dr. S.'s letter to the editor published in the

Vorarlberger Nachrichten, where Dr. S. had provided information about

the possible medical applications of RU 486.

The Courts found that the applicant's statements in this circular

letter were of a disparaging nature and lowered Dr. S. in its reader's

esteem.

The Commission finds that the subject of both publications

related to a matter of general interest. However, the Commission,

having regard to the wording of the applicant's statements on Dr. S.

and further to the procedure chosen to disseminate these statements in

a circular letter in the Vorarlberg region, finds that the applicant's

interest in criticising the drug RU 486 and its applications, including

Dr. S.'s comments in this respect, does not outweigh this third

person's right to have his reputation protected against being

disparaged in public.

In these circumstances, the interference complained of can be

reasonably regarded as "necessary in a democratic society" within the

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

Accordingly, there is no appearance of a violation of the

applicant's right under Article 10 (Art. 10) of the Convention.

This part of the application is therefore manifestly ill-founded

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

2. The applicant further complains under Article 6 (Art. 6) of the

Convention that the Courts rejected the proposed evidence and refused

to hear the witnesses on his behalf.

The Commission recalls that Article 6 (Art. 6) of the Convention

does not give an absolute right to the examination of every witness or

evidence proposed by the defence (Eur. Court H.R., Engel and others

judgment of 6 June 1976, Series A no. 22, p. 38, para. 91; Bricmont

judgment of 7 July 1989, Series A no. 158, p. 31, para. 89). In

particular a court is justified in refusing to summon witnesses when

it considers that their statements could not be of any relevance to the

case (No. 10486/83, Dec. 9.10.86, D.R. 49, p. 86).

In the present case, the applicant proposed to take evidence and

to examine witnesses on the question of the features of RU 486,

requests which, as the Innsbruck Court of Appeal confirmed, could not

clarify the issue of the applicant's guilt.

Thus, the Commission finds no indication that the Feldkirch

Regional Court, by rejecting the applicant's proposals, failed to

consider relevant evidence or acted in an arbitrary and unfair manner.

It follows that this part of the application is likewise

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

(Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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D.F. v. AUSTRIA

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