AS TO THE ADMISSIBILITY OF

                      Application No. 15974/90

                      by M.P. and G.O.

                      against Austria

      The European Commission of Human Rights sitting in private on

29 March 1993, the following members being present:

           MM.   C.A. NØRGAARD, President

                 J.A. FROWEIN

                 S. TRECHSEL

                 G. SPERDUTI

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Mrs.  G.H. THUNE

           Sir   Basil HALL

           MM.   F. MARTINEZ

                 C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

           Mr.   M. de SALVIA, Deputy 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 21 December 1989

by M.P. and G.O. against Austria and registered on 11 January 1990

under file No. 15974/90;

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

summarised as follows.

      The first applicant, born in 1949, is an Austrian national and

resident in Vienna.  The second applicant, born in 1942, is also an

Austrian national and resident in Vienna.  Both applicants are

journalists by profession, the second applicant is editor of the

periodical "FORUM - Internationale Zeitschrift für kulturelle Freiheit,

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

subtitle, an international magazine for cultural freedom, political

equality and solidarity.  Before the Commission they are represented

by Mr. G. Lansky, a lawyer practising in Vienna.

A.    The particular circumstances of the case

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

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

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

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

a general introduction, the applicant described in particular nine

judges at the Vienna Regional Court sitting in criminal matters

(Landesgericht für Strafsachen), inter alia Judge J.

      In the brief summary, the applicant stated:

           "Sie behandeln jeden Angeklagten von vornherein, als wäre

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

      Angereiste wegen Fluchtgefahr verhaften; sie fragen Bewußtlose,

      ob sie ihre Strafe annehmen; Unschuldsbeteuerungen kosten sie nur

      noch ein Achselzucken und den Angeklagten die Höchststrafe, weil

      er nicht geständig ist. - Einige von Österreichs Strafrichtern

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

      hat Methode."

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

      convicted; they have people who have travelled back from abroad

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

      have fainted if they accept their sentence; claims of innocence

      merely make them shrug their shoulders and earn the accused the

      stiffest penalty because he has failed to confess.  Some of

      Austria's judges are capable of anything.  All of them are

      capable of quite something.  There is method in all this."

      In the general introduction, the applicant wrote that the

Austrian judges at regional courts (Landes- und Kreisgerichte)

exercised absolute power in court and that the most insignificant

personal weaknesses and peculiarities could have serious consequences.

In such circumstances, the principle of free assessment of evidence

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

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

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

judiciary (richterliche Unabhängigkeit) could be perverted.  He

criticised that there were judges who acquitted the accused only if

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

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

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

accused.  He also reported about his experiences in making the

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

particular judges mentioning the "cynical vexations" ("menschen-

verachtende Schikanen") of Judge J.

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

applicant stated about Judge J. as follows:

           "Typ: rabiat

           ...

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

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

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

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

      nicht.

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

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

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

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

      legte sich auf die Lauer und notierte die Autonummer.

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

      urteilung ein - sich selbst aber ein Disziplinarverfahren, das

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

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

           Fast wäre er übrigens trotzdem Staatsanwalt geworden.  Aber

      die Zeitung ließ eine Geschichte platzen, in der wieder einmal

      sein Name vorkam - diesmal in Zusammenhang mit einem Kriminal-

      prozeß und Verdacht auf Winkelschreiberei.  Zwei Herren, Vater

      und Sohn L., waren angeklagt, mittels betrügerischer Verträge

      Leuten für Eigentumswohnungen in Althäusern Geld herausgerissen

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

      worden waren, nahm die Anklage eine andere Richtung: plötzlich

      waren nicht mehr die Verträge betrügerisch, sondern die Ab-

      sichten, mit denen sie verwendet worden waren.

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

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

      gefährlich.

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

      seiner Funktion als Untersuchungsrichter einen Rauschgift-

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

      den Pflichtverteidigern des Inhaftierten immer wieder darauf

      hingewiesen worden war, daß er die Rauschgiftmenge falsch

      beurteile und der Strafrahmen nur vier bis sechs Monate sei.

           Wobei [J.] die letzte Nichtigkeitsbeschwerde vorschrifts-

      widrig nicht an den Obersten Gerichtshof weitergeleitet hatte,

      sondern ans Oberlandesgericht und den Gerichtspräsidenten, die

      nochmals drei Monate prüften, ob enthaftet werden sollte und ob

      mögliche Verfehlungen des U-Richters vorlägen.

           Zumindest diese drei Monate hätte ein Kopierapparat dem

      Untersuchungshäftling erspart: Anfang März von dem neuen Richter

      enthaftet, an den die endlich eingeschalteten Oberstrichter den

      Akt zurückschickten, wurde der 13 Monate Inhaftierte schließlich

      Ende März verurteilt.  Zu fünf Monaten.

           Allein die Anwaltkosten hätten bis dahin 85.000 Schilling

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

      und [L.], errechnet haben.

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

      vorbeigegangen zu sein.  Der hochgewachsene bärtige Richter hat

      eine tiefe, klangvolle Stimme.  Aber während des ganzen Prozesses

      gegen die `Urlaubsräuberin' Marianne O. hält sich ein hart-

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

           Dann wird das Geschworenenurteil ausgesetzt und Anwalt [G.]

      bekommt ein Disziplinarverfahren angehängt."

           "Type: ruthless

           ...

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

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

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

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

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

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

      vanished without anything having happened.  She might have

      thought that her client was too drunk to notice the difference.

      [J.] however lay in wait and noted the car number.

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

      prostitute - and disciplinary proceedings for himself, which

      proved effective because the saucy story, which says much for

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

           Despite all this he almost became a public prosecutor.  But

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

      this time in connection with criminal proceedings and the

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

      son, were accused of having obtained money from people seeking

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

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

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

      the contracts which were fraudulent, but the intention with which

      they had been used.

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

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

      Austrian magazine] now regret this because a public prosecutor

      is less dangerous.

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

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

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

      the remand prisoner's official defence counsel repeatedly told

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

      involved and that the relevant sentence would be four to six

      months' imprisonment.

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

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

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

      a further three months to consider whether the man should be

      released from prison and whether there had been any misconduct

      on the part of the investigating judge.

           A photocopier would have spared the prisoner at least three

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

      the Supreme Court judges, finally brought into play, forwarded

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

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

      detained on remand for thirteen months.

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

      victim calculate that solely the legal fees up to that date

      amounted to AS 85,000.

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

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

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

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

      colleague on the Bench.

           Then the jury's verdict was suspended and defence counsel

      [G.] found himself facing disciplinary proceedings."

      In his report the applicant referred to inquiries of two criminal

sociologists relating to decisions on detention on remand and

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

university study in 1985 on regional sentencing practices in Austria.

      On 23 April 1987 Judge J., as a private prosecutor, requested the

Vienna Regional Court to institute criminal proceedings against the

first applicant, to which the second applicant, as editor of the

periodical in question, was a party.  J. considered that certain

passages in the report summarised and partly cited above were

defamatory within the meaning of S. 111 of the Austrian Penal Code

(Strafgesetzbuch).  In these proceedings, both applicants were

represented by Mr. Lansky.

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

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

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

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

transferred the case to the Eisenstadt Regional Court.

      On 17 November 1987 the Eisenstadt Regional Court ordered the

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

had brought a private prosecution for defamation in respect of

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

appeal (Beschwerde) remained unsuccessful.

      On 15 December 1987 the President of the Eisenstadt Regional

Court dismissed the applicants' motion to challenge the Presiding Judge

for political reasons.

      On 11 October 1988 the Eisenstadt Regional Court found the first

applicant guilty of having defamed the private prosecutor [J.] in that,

in his report "Attention! Severe Judges!" as published in the

periodical "FORUM" on 15 March 1987, he made the following remarks:

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

convicted."

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

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

(4)   "Type ruthless... [J.]."

(5)   "Despite all this he almost became a public prosecutor.  But the

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

in connection with criminal proceedings and the suspicion of dishonest

practices.  Two men, Messrs. L., father and son, were accused of having

obtained money from people seeking to buy flats in old property, by

means of fraudulent contracts.  When it became clear that the contracts

had been drawn up by [J.], the accusation took another tack: suddenly

it was no longer the contracts which were fraudulent, but the intention

with which they had been used.

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

The authors working for the `Kurier' now regret this because a public

prosecutor is less dangerous."

      The Regional Court convicted the first applicant of defamation

under S. 111 paras. 1 and 2 of the Penal Code and sentenced him to 120

daily rates (Tagessätze) of AS 30, in default of payment to 60 days'

imprisonment.  The costs of the proceedings were awarded against the

first applicant.  The Court also ordered the confiscation of the

remaining copies of the periodical concerned, and the publication of

the relevant parts of the judgment.  Furthermore, it ordered that the

second applicant, as editor of the periodical, was jointly liable for

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

of publishing the judgment.  Moreover, it ordered the second applicant

to pay J. compensation of AS 30,000.

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

objectively defamatory nature of the five passages mentioned above.

      It found that, in everyday language, the term "ruthless" meant

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

The term "vexation" denoted a measure taken on the basis of public or

official powers which caused unnecessary difficulties for a third

person, and only applied to intentional actions.  A "cynical" person

regarded human beings as bad, inferior and unworthy, thus detested

others and thereby degraded them.  The reproach that accused persons

were treated as if they were already convicted meant that such a judge

lacked impartiality and fairness and acted contrary to Article 6

para. 2 of the Convention.  In the context of the other accusations,

the reproach with being "capable of anything" also meant an intolerable

behaviour.  The fifth passage contained the suspicion that J. had

committed criminal and disciplinary offences.

      The Court considered that the accusations, taken together, were

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

dishonourable behaviour and a contemptible character.  The general

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

conscientious in fulfilling his judicial tasks and, whether in pursuit

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

others.  The incriminated passages were contrary to all these

legitimate ideas.

      The Regional Court found that the first applicant had acted with

the intent of defaming J.

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

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

diligence as a journalist (Einhaltung der journali-stischen Sorgfalt).

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

such not subject to proof.

      The Regional Court noted the first applicant's arguments and

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

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

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

applicant's submissions as follows: repeatedly disciplinary proceedings

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

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

disciplinary complaint against a lawyer had been unsubstantiated; J.

had asked defence counsel to keep his pleadings short because the

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

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

The first applicant had requested that various files concerning

criminal proceedings against third persons and all disciplinary files

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

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

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

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

prosecutor, and the reasons why he was not admitted.

      The Regional Court considered, in detailed reasoning, that the

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

incriminated passages was not pertinent.  The single incidents which

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

impartiality, or intent to delay proceedings concerning detention

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

disciplinary proceedings in 1982 relating to his role in the criminal

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

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

confidential.

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

applied the necessary diligence as a journalist, the Regional Court

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

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

earlier press reports without checking them and he had reproduced

allegations which he only knew by hearsay.

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

obvious negligence, his strong criminal intent and his continuing

journalistic activities as well as considerations of general deterrent

required that the sentence be fully executed.  The compensation was

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

reputation and the second applicant's financial situation.

      The Regional Court also noted that the second applicant, though

duly summoned, had not appeared at the trial.

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

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

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

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

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

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

His difficulties in this respect resulted from his own broad and

general formulation of the incriminated passages.  Furthermore, the

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

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

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

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

the periodical concerned was finally not executed.

B.    Relevant domestic law

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

buch) concern the offence of defamation.  S. 111 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 also not be liable if circumstances are

      established which gave him sufficient reason to assume that the

      statement was true."

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

be admissible unless the person making the statement pleads the

accuracy of his statement or his good faith.

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

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

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

forced for special reasons to make an allegation within the meaning of

S. 111 in the particular form and manner in which it was made, is not

to be punished, unless that allegation is untrue and the offender could

have been aware thereof if he had acted with the necessary care.

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

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

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

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

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

the fines imposed and for the costs of the proceedings.  The Media Act

also contains various supplementary provisions on the confiscation of

publications and the publication of convictions for defamation.

COMPLAINTS

1.    The first applicant complains under Article 10 of the Convention

about his conviction for defamation, the confiscation of the remaining

copies of the periodical concerned and the publication of the judgment.

2.    The second applicant, in this respect, complains about his joint

liability for the fine and the cost of the proceedings as well as the

award of damages.

3.    The second applicant also considers that the confiscation of the

remaining copies of the periodical as a whole, instead of only the

report concerned, violates his right under Article 14 in conjunction

with Article 10 of the Convention.

4.    The applicants also complain under Article 6 paras. 1 and 3 (d)

of the Convention that they did not have a fair trial, in particular

that their defence rights were unduly restricted.  They submit that

they could not properly put questions to the private prosecutor J., and

that their requests to take evidence on the truth of the incriminated

statements were incorrectly dismissed.  The repeated refusal of their

requests to take evidence gave rise to doubts as to the impartiality

of the judges involved.

5.    The applicants complain under Article 13 in conjunction with

Article 10 of the Convention that the Austrian courts did not duly

consider their right to freedom of expression.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 21 December 1989 and registered

on 11 January 1990.

      On 6 January 1992 the Commission decided to communicate the

application to the respondent Government.

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

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

THE LAW

1.    The first applicant complains about his conviction by the

Eisenstadt Regional Court of defamation, the confiscation of the

remaining copies of the periodical concerned and the publication of the

judgment.  He invokes Article 10 (Art. 10) of the Convention.

      Article 10 (Art. 10) of the Convention, so 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, ... or for maintaining the

      authority and impartiality of the judiciary."

      The Government submit that the interference with the first

applicant's right to freedom of expression was justified under

Article 10 para. 2 (Art. 10-2) of the Convention as being prescribed

by Austrian law and necessary in a democratic society for the

protection of the reputation or rights of others as well as for

maintaining the authority and impartiality of the judiciary.  As

regards the question of whether the interference was necessary in a

democratic society for the aforesaid aims, they refer primarily to the

Barfod judgment of the European Court of Human Rights (22 February

1989, Series A no. 149).  They consider that the subject of the first

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

limits of criticism are wider, nor did the incriminated passages

contribute to a critical discussion on the Austrian administration of

criminal justice.  The incriminated article could not be qualified as

a reasonable reaction to any behaviour of the private prosecutor.

Rather, the article contained defamatory accusations against a judge

personally which were likely to degrade him in public esteem.

      The first applicant submits that he intended to criticise misuse

of powers in the administration of criminal justice.  In formulating

his article, he had not gone beyond the limits of acceptable criticism.

He considers that the Austrian courts, when convicting him of

defamation, did not duly balance the public interest in critical

information by the press about the performance of the administration

of justice and the working methods of particular criminal judges.

      The Commission finds that the first applicant's complaint under

Article 10 (Art. 10) of the Convention raises difficult questions of

fact and of law which require an examination of the merits.  This part

of the application is therefore not manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.  No other

ground for declaring it inadmissible has been established.

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

Convention about his joint liability for the fine and the cost of the

proceedings as well as the award of damages against him.

a.    The Government rely on Article 25 (Art. 25) of the Convention and

submit that the second applicant cannot claim to be a victim of a

violation of his right to freedom of expression.  They submit that the

second applicant, as editor of the periodical "FORUM", did not exercise

any influence on the article concerned.  Furthermore, the first

applicant paid the fine imposed upon him personally.  The other

payments ordered by the Eisenstadt Regional Court were not made by the

second applicant, either.  In any case, he could have claimed

compensation from the first applicant.  In this respect, the Government

also refer to Article 26 (Art. 26) of the Convention.

      Article 25 para. 1 (Art. 25-1), first sentence, of the

Convention, so far as relevant, provides as follows:

      "The Commission may receive petitions addressed to the Secretary

      General of the Council of Europe from any person, non-

      governmental organisation or group of individuals claiming to be

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

      of the rights set forth in this Convention ..."

      The Commission notes that the second applicant brought his

application in his personal capacity and as editor of the periodical

"FORUM" where the incriminated article had been published.  The

applicant, as editor, was also affected by the private prosecution

proceedings for defamation and in particular the Eisenstadt Regional

Court's judgment of 11 October 1988, as confirmed upon appeal.  The

Commission finds, that, in these circumstances, the second applicant

can claim within the meaning of Article 25 para. 1 (Art. 25-1) to be

a victim of a violation of his right under Article 10 (Art. 10) of the

Convention.

b.    Furthermore, the Commission considers that the respondent

Government have not pointed at any efficient remedy as regards the

alleged violation of the second applicant's right under Article 10

(Art. 10) of the Convention, which he ought to have exhausted under

Article 26 (Art. 26) of the Convention.

      The Commission finds that the second applicant's complaint under

Article 10 (Art. 10) of the Convention also raises difficult questions

of fact and of law which require an examination of the merits.  No

other ground for declaring it inadmissible has been established.

3.    The second applicant considers that the confiscation of the

remaining copies of the periodical as a whole, instead of only the

report concerned, violates his right under Article 14 in conjunction

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

a.    The Government repeat their argument under Article 25 para. 1

(Art. 25-1) of the Convention.  They submit in particular that in fact

no copy of the periodical was confiscated.

      The Commission notes that the judgment of the Eisenstadt Regional

Court, including the order of confiscation, as confirmed by the Court

of Appeal, is final.  The order of confiscation has not been set aside.

The second applicant may, therefore, claim to be a victim of a

violation of the above Convention rights, in accordance with Article 25

para. 1 (Art. 25-1) of the Convention.

b.    The Government also consider that the second applicant failed to

exhaust domestic remedies in this respect, as he did not challenge the

order of confiscation in his appeal with the Vienna Court of Appeal,

and did not request the courts to allow him, under the relevant

provisions of the Media Act, to secure by detaching the incriminated

passages or other means that those passages could no longer be

perceived in case of future distribution.

      The Commission finds that the applicants did in fact appeal

against the Eisenstadt Regional Court's judgment.  The Government

failed to show to what extent the second applicant could have

separately challenged the order of confiscation or otherwise remedied

the alleged violation of his Convention rights.  The second applicant

must therefore be regarded as having exhausted the remedies available

to him, as required by Article 26 (Art. 26) of the Convention.

c.    The Commission finds that the second applicant's complaint about

the order of confiscation relating to the remaining copies of the

periodical concerned cannot be separated from the serious issues of

fact and law raised by the applicants' complaints under Article 10

(Art. 10) of the Convention.  No other ground for declaring it

inadmissible has been established.

4.    Both applicants also complain under Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention that they did not have a fair

trial, in particular that their defence rights were unduly restricted.

They submit that they could not properly put questions to the private

prosecutor J., and that their requests to take evidence on the truth

of the incriminated statements were incorrectly dismissed.  The refusal

of their requests to take evidence gave rise to doubts as to the

impartiality of the judges involved.

      Article 6 para. 1 (Art. 6-1) of the Convention, so far as

relevant, provides that in the determination of his civil rights and

obligations or of any criminal charge against him, everyone is entitled

to a fair hearing by an independent and impartial tribunal.  According

to Article 6 para. 3 (d) (Art. 6-3-d) everyone charged with a criminal

offence has the right to examine or have examined witnesses against him

and to obtain the attendance and examination of witnesses on his behalf

under the same conditions as witnesses against him.

      As regards the second applicant the Government repeat their

submissions relating to his complaint under Article 10 (Art. 10),

namely that he cannot claim to be a victim of a violation of his

Convention rights within the meaning of Article 25 (Art. 25).  They

also contend that in respect of the second applicant there was no

determination of a criminal charge, but, in the context of the criminal

proceedings against the first applicant, of civil rights and

obligations under the Media Act.

      The Commission does not find it necessary to address these issues

on the ground that the applicants' complaint under Article 6 (Art. 6)

is manifestly ill-founded for the following reasons.

      There is no indication that the applicants, assisted by counsel,

could not adequately present their arguments or were limited in the

rights of defence.  The Eisenstadt Regional Court, in its judgment of

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

on 26 June 1989, carefully examined the first applicant's requests to

take evidence by hearing witnesses and also consulting various files

relating to criminal and disciplinary proceedings, and considered that

the evidence offered was not relevant in the circumstances, namely in

view of the broad accusations published by the applicants.  The

detailed reasoning of the Eisenstadt Regional Court appears tenable in

the circumstances.

      Consequently, the Commission considers that the applicants'

submissions do not disclose any appearance of unfairness, arbitrariness

or otherwise improper conduct of the proceedings concerned.

      It follows that this part of the application is manifestly

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

Convention.

5.    The applicants further complain under Article 13 in conjunction

with Article 10 (Art. 13+10) of the Convention that the Austrian courts

did not duly consider their right to freedom of expression.

      Article 13 (Art. 13) of the Convention provides that "everyone

whose rights and freedoms as set forth in this Convention are violated

shall have an effective remedy before a national authority ..."

      In the present case, the applicants' complaint is directed

against the judgments of two courts, namely of the Eisenstadt Regional

Court of 11 October 1988, and of the Vienna Court of Appeal of 26 June

1989.  A remedy against the alleged violation of the applicant's

Convention rights committed by these courts would require a possibility

to appeal against their judgments.  However, the right to appeal is not

as such guaranteed by Article 13 (Art. 13) of the Convention (cf. Eur.

Court H.R., Delcourt judgment of 17 January 1970, Series A No. 11, p.

14, para. 25).  This provision cannot, therefore, be relied upon in

circumstances where the alleged violation of the Convention lies in the

decision of a court (cf. Appl. Nos. 12629/87 and 13965/88, Dec.

9.11.89, to be published in D.R.).

      This part of the application is therefore manifestly ill-founded

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

      For these reasons, the Commission, by a majority,

      DECLARES ADMISSIBLE, without prejudging the merits, the

      applicants' complaints that the Eisenstadt Regional Court's

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

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

      expression and constituted discrimination,

      DECLARES INADMISSIBLE the remainder of the application.

Deputy Secretary to the Commission     President of the Commission

        (M. de Salvia)                        (C.A. Nørgaard)