Lexploria

Application No. 13704/88

by K. S.

against Austria

The European Commission of Human Rights sitting in private

on 11 October 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

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 1 February 1988

by K.S. against Austria and registered on 25 April 1988 under file No.

13704/89;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

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

resident at A. He is an industrial management student. Before the

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

in Klagenfurt.

The present application relates to the applicant's conviction

in particular for defamation which has the following background.

In December 1984 T, the Mayor of Maria Rain (Carinthia), was

convicted of having negligently caused bodily harm (fahrlässige

Körperverletzung) in a traffic accident under the influence of alcohol

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

victim of the accident.

In 1985 this conviction was subject to political discussion in

Carinthia. On 13 August 1985 the Carinthian newspaper "Kleine

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

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

Carinthian Government W upon the question whether or not T. had to

resign. W. had referred to the fact that T. did apparently not intend

to resign. He had stated in particular that he did not want to

participate in a hunt. However, after a phase of reflection, T. ought

to realise that his resignation was necessary. W. continued that this

would be primarily a matter for the Austrian People's Party. However,

if T. would not think it over, the Regional Supervisory Authority

(Gemeindeaufsicht des Landes) would do so.

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

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

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

Carinthian district and councillor (Gemeinderat) of A.. The

report read as follows:

"Es sei keine Frage, daß der wegen Fahrerflucht

verurteilte ÖVP-Bürgermeister von Maria Rain zurückzutreten habe,

erklärte der Bezirksobmann der Jungen ÖVP Wolfsberg Gemeinderat

K. S. in einer Aussendung.

Landeshauptmann W habe aber nicht die geringste

moralische Berechtigung Bürgermeister T. wegen seiner

Rücktrittsweigerung anzugreifen. Landeshauptmann W. ist seit

Jahren darüber informiert, daß sein Stellvertreter am 10. Juli

1966 bei Scheifling in der Steiermark im alkoholisierten Zustand

einen Verkehrsunfall verursachte, bei dem 2 Kinder zu Halbwaisen

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

der Landeshauptmann bei einem 'kleinen Dorfbürgermeister', der

einer anderen Partei angehört, strengere Maßstäbe anlegt, als bei

seinem Parteifreund und Stellvertreter F. Es täte der

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

politische Moral sorgen würde, die er von anderen verlangt,

schloß S."

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

leaving the place of accident without reporting to the police,

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

would have to resign, stated the Councillor K. S.,

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

District.

However, the Head of the Carinthian Government W did not

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

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

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

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

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

Carinthian Government applied a stricter standard to a 'small

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

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

credibility good, if he would provide within the Austrian

Socialist Party for the political morals which he requires of

others, concluded S."

The applicant referred in his report to a traffic accident

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

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

Leoben Regional Court (Kreisgericht) of having committed an offence

against security of life (Vergehen gegen die Sicherheit des Lebens).

The Leoben Regional Court had considered as an aggravating

circumstance that F had been driving after drinking (Alkoholisierung)

and had been close to drunken driving (irrefutable at 0.8 per mille).

According to the files of the criminal proceedings against F, the

blood alcohol content level had been 0.8 per mille at the time of

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

at the time of the accident.

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

subsequent conviction by an article published in April 1984. The

article referred to the circumstances of the accident and in

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

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

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

drunken driving. The applicant verified the contents of this article

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

access to the files concerning the proceedings concerned was allegedly

dismissed by the Leoben Regional Court.

The applicant sent his report to several Carinthian

newspapers.

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

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

("Zweierlei Maß?").

On 4 September 1985 the Deputy Head of the Carinthian

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

Regional Court (Landesgericht) to institute criminal proceedings

against the applicant. In the subsequent criminal proceedings the

applicant was represented by Mr. Brunner.

On 26 September 1986 the Klagenfurt Regional Court convicted

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

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

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

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

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

was sentenced to a fine of AS 3000.-.

S. 111 para. 1 makes it a criminal offence to state before

others that a person has contemptible features or attitudes, or to

accuse him of dishonest behaviour or of behaviour contrary to good

morals which is liable to scorn, or to degrade him in the public

opinion. By virtue of para. 2 the offence is aggravated if it is

committed in print or broadcast or otherwise in such a manner that the

defamation becomes accessible to a broad public. A person will not be

punished if it is shown that the allegation made is true (S. 111

para. 3). According to S. 112 the burden of proof is on the defendant

party.

S. 113 provides that it is a criminal offence to reproach a

person in public with a criminal offence in respect of which the

sentence had already been executed, or provisionally been suspended, or

in respect of which the determination of the sentence had been

provisionally adjourned.

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

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

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

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

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

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

necessary care, ought to have been aware thereof.

The Court found that the applicant, in his report as published

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

of 1966. Furthermore it found that he had defamed F., first, with

the reproach that F. had caused the accident while under the influence

of alcohol and lacked political morals (apparently because F. did not

resign from his political functions at that time). Second, he had

expressed the opinion that F.'s accident of 1966 had been as serious as

another accident mentioned in the report although in that accident the

responsible driver - contrary to the private prosecutor's case - had

also committed the offences of drunken driving and leaving the place

of accident without reporting to the police.

The Court considered in particular that the applicant was not

excused under S. 114 para. 2 of the Criminal Code. The circumstance

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

officials would not confer a right to "dig out" the very old accident

of an official of the opposite party. Furthermore there was no "duty

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

applicant was made by the Socialist Head of the Carinthian Government

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

of a small district organisation, was not obliged to react to this

attack by defaming a third person.

Moreover, the applicant could not plead that the reproach of

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

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

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

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

was tolerated by the legislator and the public and did not give rise

to a reproach. The Regional Court also considered that the applicant

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

He could not maintain that he intended to refer to a blood alcohol

content level of less than 0.8 per mille as the general aim of the

press report was to describe the two accidents as being morally

completely equal, necessitating the same consequence, namely

resignation. The Regional Court stated that the reproach that a

politician lacked political morals would not, as such, constitute

defamation; the decisive element was the comparison (gleichwertige

Gegenüberstellung) of the two accidents.

Finally the Regional Court, having regard to the evidence from

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

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

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

truth of his statements.

On 5 February 1987 the applicant appealed (Berufung wegen

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

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

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

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

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

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

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

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

problem, namely the compatibility of official functions with a

criminal conviction. Furthermore he maintained that his statements

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

political discussion.

On 29 April 1987 the Graz Court of Appeal dismissed the

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

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

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

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

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

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

served upon the applicant on 4 September 1987.

On 17 September 1987 the applicant submitted a suggestion to

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

Erhebung einer Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) to the

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

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

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

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

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

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

COMPLAINTS

The applicant complains under Article 10 of the Convention of

his conviction, which in his view was not necessary in a democratic

society for the protection of the reputation and the rights of others.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 February 1988 and

registered on 25 March 1988.

On 4 July 1988 the Commission decided, pursuant to Rule 42

para. 2(b) of the Rules of Procedure, to give notice of the

application to the respondent Government and to invite them to submit

before 28 October 1988 their observations in writing on the

admissibility and merits of the application.

The Government submitted their observations on 2 November 1988

and the applicant was invited to submit observations in reply before

9 January 1989. The applicant submitted observations in reply on

5 January 1989.

THE LAW

The applicant complains that his conviction by Austrian Courts

for defamation and reproach with a previous criminal offence violates

his right to freedom of expression within the meaning of Article 10

(Art. 10) of the Convention.

Article 10 (Art. 10) of the Convention provides in so far as

relevant:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authority and regardless of frontiers...

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society,

... for the protection of the reputation or rights of

others, ...".

The Government submit that a penalty for having reproached

someone with a previous criminal offence is an interference necessary

in a democratic society to protect the reputation and rights of the

person concerned. The reintegration of criminal offenders into

society and the protection of their right to respect for their private

life outweigh a general interest in public information. These

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

criminal offence constitutes a criminal offence in itself, though with

a minor penalty. Politicians cannot be excluded as their previous

convictions in general only concern the private sphere. Furthermore,

the applicant was convicted of defamation on the ground that he had

imparted information the truth of which he failed to prove. His

statement that F. had caused an accident "after drinking" gave the

impression of drunken driving although F.'s blood alcohol content level

had in fact been below 0,8 per mille. Moreover, he had incorrectly

compared both traffic accidents.

The applicant maintains that his press articles were intended

to contribute to the political debate about whether a criminal

offender is acceptable in a public function. The concept of

reintegration of criminal offenders, underlying S. 113 of the Criminal

Code, could not apply to politicians. The applicant considers that he

proved that F had caused an accident after "drinking". The

interpretation of this term by the Klagenfurt Regional Court

contravened the principle "in dubio pro reo". The comparison of both

accidents was justified as they raised similar aspects.

The Commission finds that the applicant's complaint under

Article 10 (Art. 10) of the Convention raises complex issues of fact

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

The application cannot, therefore, be declared manifestly ill-founded.

No other grounds for inadmissibility have been established.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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