AS TO THE ADMISSIBILITY OF

                      Application No. 11662/85

                      by Gerhard OBERSCHLICK

                      against Austria

        The European Commission of Human Rights sitting in private

on 10 May 1989, the following members being present:

              MM. J.A. FROWEIN, Acting President

                  S. TRECHSEL

                  G. SPERDUTI

                  G. JÖRUNDSSON

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  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 16 June 1985

by Gerhard Oberschlick against Austria and registered on

29 July 1985 under file No. 11662/85;

        Having regard to the respondent Government's observations of

23 February 1988 and the applicant's reply of 21 April 1988;

        Having deliberated on 6 and 10 May 1989;

        Decides as follows:

THE FACTS

        The facts agreed between the parties may be summarised as

follows.

        The applicant is an Austrian citizen, born in 1942 and

resident in Vienna.  Before the Commission he is represented by

Mr.  R.K. Fiebinger, a lawyer practising in Vienna.

        The applicant, who is a journalist, complains of defamation

proceedings taken against him in 1983 by Mr.  G.M., at that time

Secretary-General of the Austrian Liberal Party (FPÖ).

        In a television programme Mr.  G.M. had suggested that the

family allowances for Austrian women be raised by 50% in order to

prevent abortions based on financial reasons.  At the same time it was

proposed that the family allowances paid by the Austrian State to

immigrant mothers be cut by 50%.

        As a reaction to these statements the applicant and several

other persons laid a criminal information (Strafanzeige) on 20 April 1983

against Mr.  G.M. for suspicion of

        - incitement to hatred (Verhetzung, Section 283 of the

          Penal Code (Strafgesetzbuch)),

        - instigation and approval of criminal offences (Aufforderung

          zu mit Strafe bedrohten Handlungen und Gutheissung mit

          Strafe bedrohter Handlungen, Section 282 of the Penal Code),

          and

        - activities contrary to Sections 3 and 3 (d) of the National

          Socialism Prohibition Act (Verbotsgesetz).

        In the reasons it was argued that Mr.  G.M.'s public statement

was tantamount to instigating hatred or contempt against foreign

workers in Austria, and also inviting Parliament and the Government to

engage in activities banned by the National Socialism Prohibition

Act.  His proposals corresponded to National Socialist ideology as laid

down in the Party Programme of 1920.  This showed that he had acted in

line with National Socialist thinking.

        On the same day, 20 April 1983, the full text of the criminal

information was published in the periodical "FORUM" under the headline

"Criminal information against G.M.".  On the cover page of the

relevant issue of "FORUM" a hint was made to this publication by a

line in bold print:  "Criminal information against Liberal Party

Secretary" ("Strafanzeige gegen FPÖ-Generalsekretär").

        On 22 April 1983, Mr.  G.M. brought a private prosecution

against the applicant and the other signatories of the criminal

information for defamation (üble Nachrede, Section 111 of the

Penal Code).  Subsection (1) of this provision 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 public opinion.  By virtue of subsection (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, but in the cases coming only under subsection

(1) it is sufficient to prove that the circumstances were such as

to give the person making the allegation sufficient grounds to

believe that the statement was true (subsection (3)).  According to

Section 112 the burden of proof is on the defendant party.

        Mr.  G.M. also requested the immediate seizure of the relevant

issue of "FORUM" under Sections 33 and 36 of the Media Act, and the

adjudication of compensation to be paid to him by the owners of

"FORUM", according to Section 6 of the Media Act.

        The case was considered the same day, 22 April 1983, by the

Review Chamber (Ratskammer) of the Regional Criminal Court

(Landesgericht für Strafsachen) of Vienna.  It found that the publication

did not constitute the criminal offence under Section 111 of the Penal

Code.  The case did not concern the wrong attribution of a certain

(dishonest) behaviour, but only value judgments (Bewertung) on a

behaviour which as such had been correctly described.  Accordingly the

proceedings were discontinued under Section 485 para. 1 (4) of the

Code of Criminal Procedure (Strafprozessordnung).

        On 31 May 1983 the Vienna Court of Appeal (Oberlandesgericht)

quashed the above decision on the appeal (Beschwerde) of Mr.  G.M.  It

held that for the average reader the publication must have created the

impression that a contemptible attitude (verächtliche Gesinnung) was

ascribed to the latter.  The authors had disregarded the standard of

fair journalism by going beyond a comparative and critical analysis of

Mr.  G.M.'s statement and insinuating motives to him which he had not

himself expressed, in particular by alleging that he had been guided

by National Socialist attitudes.  Accordingly the case was referred

back to the Regional Court.

        On 1 June 1983 the public prosecutor's office in Vienna

decided that there were not sufficient reasons to prosecute Mr.  G.M.

on the basis of criminal information laid against him by the applicant

and others (Zurücklegung der Strafanzeige).

        At a hearing on 20 July 1983 the Regional Court decided to

sever the defamation proceedings against the applicant's co-accused

because, although they had signed the criminal information against

Mr.  G.M., they had not been associated with its publication in "FORUM".

These proceedings were referred to the Vienna District Court for

Criminal Affairs (Strafbezirksgericht) which subsequently discontinued

them on 9 April 1984.

        The trial of the defamation case against the applicant was

held by the Regional Court on 11 May 1984.  The Court took evidence by

consulting various documents, hearing Mr.  G.M. as a witness and

hearing the applicant.  The applicant offered evidence that he

had written the truth (Wahrheitsbeweis) and claimed that in this

respect it was sufficient that the criminal information had actually

been laid against Mr.  G.M. in the terms published in "FORUM".  He

further claimed that by reporting the criminal suspicion he had acted

in the exercise of a legal duty, and that therefore he was exculpated

according to Section 114 of the Penal Code.  The fact that the legal

qualification of Mr.  G.M.'s statement might have been erroneous could

not be held against him because he was not a lawyer.

        However, in its judgment of the same day, the Regional Court

convicted him of the offence of defamation under Section 111 (1) and

(2) of the Penal Code, imposing a fine of AS 4000.-, to be replaced in

case of default by 25 days' imprisonment.  Simultaneously, several

measures were pronounced against the owners of "FORUM": the seizure of

the relevant issue of this periodical (Section 33 of the Media Act),

the publication of the judgment (Section 34 of the Media Act), the

joint liability of the owners of "FORUM" for the payment of the fine

(Section 35 (1) of the Media Act), and the adjudication of

compensation to Mr.  G.M. in the amount of AS 5000.- (Section 6 of the

Media Act).

        The Regional Court held that it was bound by the decision of

the Court of Appeal of 31 May 1983 according to which the objective

conditions of the offence of defamation were fulfilled despite the

fact that the publication had the form of a criminal information.  The

applicant's defence  did not convince the Court.  In the Court's view

it was not sufficient that Mr.  G.M. had made the criticised statement

and that a criminal information had been laid regarding this statement

in the terms published in "FORUM".  Mr.  G.M.'s statements showed a

hostile attitude to foreigners, but did not amount to a National

Socialist attitude nor to a criminal offence.  Therefore the applicant

had failed to establish the truth of his allegations in this respect.

        The fact that the publication was only a reprint of the

criminal information laid against Mr.  G.M. did not exculpate the

applicant.  While everyone was free to report facts to the police

which he considered to constitute a criminal offence, it went far

beyond the mere reporting of a criminal suspicion to publish the

criminal information in question in a periodical and thus to make it

accessible to the general public.  In this respect the applicant could

not invoke a legal duty or even a legal right.

        The applicant appealed against his conviction and sentence.

He also applied for a correction of the trial court's record which,

according to him, failed to mention certain statements of Mr.  G.M.

which were of importance for judging the latter's attitudes and thus

for the assessment of the evidence showing the truth of the

applicant's allegations.  Allegedly, Mr.  G.M. had at the trial inter

alia confirmed his attitude that he was opposed to excessive

immigration of foreigners ("Ãœberfremdung") and that for technical

reasons he approved the "stop foreigners" campaign ("Ausländer Halt")

which, as the applicant observes, was staged by a right wing political

party and was subsequently prohibited.  Mr.  G.M. had also admitted

having considered measures of social policy directed against the

children of foreign workers in Austrian schools.  These statements,

however, did not appear in the trial record.

        On 4 October 1984 the Regional Court rejected the application

for correction of the record as being inadmissible.  It stated that

after five months the judge had no recollection of the detailed

formulations used, and that nothing in the notes of the transcriber

supported the applicant's request.

        On 16 December 1984 the applicant's appeal (Berufung) against

his conviction and sentence was rejected by the Vienna Court of

Appeal.  The Court observed that the ruling refusing a correction of

the trial record was final and that there was no appearance that

requests made during the trial had not been determined.  Moreover, the

allegedly important statements of Mr.  G.M. were irrelevant for the

Court's decision.

        The Regional Court had not been legally bound to follow the

Court of Appeal's earlier decision concerning the qualification of the

offence.  However, the Court of Appeal saw no reason to depart from

that decision.  The case did not concern the (possibly wrong) legal

qualification of Mr.  G.M.'s statements by the applicant, but

allegations putting a stain on Mr.  G.M.'s character which objectively

could not be based on these statements.

        The Regional Court had rightly found that the applicant had

failed to show that his allegations were true.  The fact that a short

report on the criminal information against Mr.  G.M. would not have

been punishable did not justify the conclusion that a full reprint

of the criminal information was not punishable either.  The

presentation of the publication in the form of a criminal information

must have created the impression for the average reader that a

particularly serious reproach was made against Mr.  G.M.'s character.

Neither the right to report a criminal suspicion (Section 86 (1) of

the Code of Criminal Procedure) nor the exception stipulated in

Section 114 (2) of the Penal Code justified the full publication of

the criminal information because it was not proportionate ("mangels

Anlassadäquanz"):  National Socialist attitudes had been insinuated to

Mr.  G.M. without a sufficient basis in the facts.

        The written judgment was served on the applicant on

7 January 1985.

COMPLAINTS

1.      The applicant alleges a violation of his right to freedom of

expression as guaranteed by Article 10 of the Convention.  He does not

claim that the legal provisions of the Austrian Penal Code concerning

the offence of defamation are in breach of this provision, but

contends that the application of these provisions in his case cannot

be justified under Article 10 para. 2, in particular that his

conviction was not "necessary in a democratic society" for "the

protection of the reputation or rights of others".  He claims that the

publication in question constituted a value judgment concerning the

behaviour of a leading politician and that under the Commission's

case-law (in particular No. 9815/82, Lingens v.  Austria, Comm.  Report

11.10.84, and No. 8803/79, Lingens and Leitgeb v.  Austria, Dec.

11.12.81, D.R. 26 p. 171) such value judgments must in principle be

admitted in publications of the press in a democratic society, because

they are by their nature not accessible to proof of truth.

2.      In addition, the applicant alleges violations of his

procedural rights under Articles 6 and 13 of the Convention.

        He claims that it was contrary to Article 6 read in

conjunction with Article 13 that certain judges of the Court of Appeal

had earlier participated in the decision of the Review Chamber of the

Regional Court to discontinue the proceedings, or in the decision on

the appeal against the Review Chamber's decision.  This was contrary

to Section 489 para. 3 of the Austrian Code of Criminal Procedure and

the impartiality of the Court and the fairness of the proceedings were

thereby impaired.

        The applicant further complains that in the second round of

proceedings he was deprived of an effective remedy against the Regional

Court's decision by the Court of Appeal because this Court had already

pronounced itself on the merits in the first round.  The applicant

claims that, pending the entry into force of Protocol No. 7 to the

Convention, a right to effective criminal appeal proceedings can be

derived from Article 13 of the Convention.

        The applicant finally complains that it was incompatible with

Article 13 of the Convention and contrary to the principles of fair

trial that his request for a correction of the record of the trial of

11 May 1984 was rejected.  He states that this record was of

fundamental importance for the proof of truth.

PROCEEDINGS

        The application was introduced by a letter which the applicant

addressed to the Commission on 16 June 1985.  This letter was received

on 25 June 1985 and following the submission of the application form

the case was registered on 29 July 1985, 25 June 1985 being indicated

as the date of introduction.

        On 9 November 1987 the Commission decided to give notice of

the application to the respondent Government, in accordance with Rule

42, para. 2 (b) of its Rules of Procedure, and to invite them to

submit before 5 February 1988 their observations in writing on the

admissibility and merits of the application.  At the request of the

Government this time-limit was subsequently extended until 15 March 1988.

        The Government submitted their observations on 23 February 1988

and the applicant replied thereto on 21 April 1988.

THE LAW

1.      The Government claim that the applicant has not complied with

the rule under Article 26 (Art. 26) of the Convention according to which the

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

from the date on which the final decision was taken".  They observe

that, according to the information provided by the Commission when

communicating the case to the Government, the application was

introduced on 25 June 1985 whereas the final domestic decision was

pronounced by the Vienna Court of Appeal on 16 December 1984, i.e.

more than six months before this date.  The fact that the written

judgment was served upon the applicant on 7 January 1985 is irrelevant

in the Government's opinion which in this respect relies on the

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

(Dec. 20.5.75, D.R. 6 p. 15).  The applicant has replied to this that he

actually introduced the application on 16 June 1985.  Indeed his first

letter, setting out the substance of the case, is dated 16 June 1985.

In these circumstances the application must, in accordance with the

usual practice of the Commission, be regarded as having been

introduced on 16 June 1985, i.e. the last day of the six months' time- limit

provided for in Article 26 (Art. 26), if that time-limit should have to be

counted as from the date when the final judgment was pronounced orally.

Accordingly the application cannot be rejected as having been filed out of

time.

2.      The applicant complains that his conviction for defamation of a

politician and the related seizure of his publication constituted an

unjustified interference with his right to freedom of expression as guaranteed

by Article 10 (Art. 10) of the Convention.  This provision 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 pre-

        scribed by law and are necessary in a democratic society, in

        the interests of national security, territorial integrity or

        public safety, for the prevention of disorder or crime, for

        the protection of health and morals, for the reputation or

        rights of others, for preventing the disclosure of information

        received in confidence, or for maintaining the authority and

        impartiality of the judiciary."

        The applicant's freedom of expression under Article 10 para. 1

(Art. 10-1) of the Convention has been interfered with by his conviction and

sentence for the publication in the periodical "FORUM".

        The applicant claims that this interference was not covered by

Article 10 para. 2 (Art. 10-2), in particular that it was not necessary in a

democratic society for the protection of the reputation of others to

interfere with a publication which was merely a reprint of a criminal

information which had actually been laid and which expressed critical

value judgments on the behaviour of a politician in the form of a

legal qualification of this behaviour.

        The Government submit, in particular, that with appropriate

legal advice the applicant should have realised that the suspicion of

the criminal offences alleged by him was wholly unfounded.  The

applicant was entitled, but not obliged, to lay a criminal information,

and in this context he was not required to qualify the reported facts

from a legal point of view.  If he did so and overstepped the limits

of what was necessary he was responsible for his action.  In any event

he had not been convicted for the fact of having laid a criminal

information which was legally untenable, but only because he had

published it.  This was not merely the expression of an opinion in the

form of a value judgment which was not susceptible of being proven as

true.  The arguability of the legal qualification of given facts can

be verified by reference to the applicable laws and the relevant

case-law.  In this context allowance must be made for a certain degree

of legal uncertainty, justifying the adoption of different opinions.

However, in the present case the legal opinion expressed by the

applicant was totally unreasonable ("geradezu denkunmöglich"), since

hardly any of the elements of the criminal offences alleged by him

were met.  In these circumstances it was possible to assess the

question of the correctness of the legal opinion expressed by him.

The applicant used an objectively and subjectively wrong legal opinion

concerning a politician's behaviour in order to insinuate a despicable

attitude to the latter.  While politicians were required to sustain a

higher degree of criticism than other people, there were nevertheless

limits to such criticism.  The unproven allegation of National

Socialist attitudes constituted a massive attack on a person's

reputation also if he was a politician.  The applicant's conviction of

defamation was therefore justified, in particular as the sanctions

imposed were not disproportionate.

        The Commission has considered these arguments, but finds that

the applicant's complaint cannot, at this stage, be rejected as being

manifestly ill-founded.  It raises complex issues of law and fact

concerning the application of Article 10 (Art. 10) of the Convention which

require a determination on the merits.

3.      The applicant has further submitted a number of procedural complaints.

He has invoked Articles 13 and 6 (Art. 13, 6) in this respect, but the

Commission considers that only the latter provision is applicable.  In fact the

applicant was charged with a criminal offence, and therefore was entitled to

the procedural guarantees enshrined in Article 6 paras. 1 to 3 (Art. 6-1, 6-2,

6-3).  As these provisions are more specific than those contained in Article 13

(Art. 13) of the Convention, there is no room to apply the latter Article.

        Article 6 para. 1 (Art. 6-1), first sentence, of the Convention

provides:

        "In the determination of his civil rights and

        obligations or of any criminal charge against him,

        everyone is entitled to a fair and public hearing

        within a reasonable time by an independent and

        impartial tribunal established by law."

        The applicant claims that the Court of Appeal which dealt with

the case in the second round of the proceedings lacked impartiality,

because it included judges who had participated in the first round of

the proceedings, and who would have been excluded by virtue of

Section 489 para. 3 of the Austrian Code of Criminal Procedure.

The applicant also claims that he has not had a fair hearing because

the Court of Appeal had the same composition as in the first round of

proceedings and therefore had preconceived ideas when examining the

applicant's appeal in the second round.

        In this respect the Commission first notes from the information

provided by the Government that no member of the Court of Appeal had

previously been involved in the Regional Court's proceedings.

        However, the Court of Appeal had the same President in both

rounds of the proceedings.  Under Section 489 para. 3 of the Code of

Criminal Procedure the President should not have participated on the

second occasion.

        The Government submit that the applicant has not exhausted the

domestic remedies in this respect as he failed to raise the issue of

the composition of the court immediately at the trial.  The applicant,

on the other hand, states that neither he nor his defence counsel knew

the presiding judge and that the defence only learnt from the decision

when it was served that he had been the same person who had also

presided over the Court of Appeal in the first round of proceedings.

In these particular circumstances the applicant must be absolved from

using the remedy indicated by the Government, and therefore this part

of the application cannot be rejected for failure to exhaust domestic

remedies.

        As regards the substance of the applicant's above complaint,

the Commission finds that it cannot at this stage be rejected as being

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

the Convention.  In particular the fact that a legally excluded judge took part

in the Court of Appeal's proceedings raises an issue as to whether the Court

was "impartial" and "established by law" within the meaning of Article 6 para.

1 (Art. 6-1) of the Convention.  This issue requires a determination on the

merits.

4.      The applicant finally complains of the Regional Court's

refusal to rectify the record of the trial as requested by him.  He

claims that the record did not correctly reflect the position stated

by the private prosecutor, who had been heard as a witness, and that

this was of particular relevance for the proof of the truth of the

applicant's allegations.

        The Government submit that in this respect the applicant has

failed to comply with the six-months rule as laid down in Article 26

(Art. 26) of the Convention because the final decision here was the

decision of the trial judge of 4 October 1984.  However, the

Commission notes that the question of the trial record was in fact

considered in the Court of Appeal's decision of 16 December 1984.  In

these circumstances the applicant's above complaint cannot be rejected

as having been filed out of time.

        The Commission notes that the question of the trial record

could be of relevance for the proceedings of the Court of Appeal and,

in particular, the fairness thereof.  It considers that this issue

cannot be severed from the applicant's other complaints under Article 6

(Art. 6) and therefore must also be determined as to the merits.

        For these reasons, the Commission

        DECLARES THE APPLICATION ADMISSIBLE,

        without prejudging the merits of the case.

Secretary to the Commission            Acting President of the Commission

   (H.C. KRÜGER)                               (J.A. FROWEIN)