Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12387/86

by Fraktion Sozialistischer Gewerkschafter

im ÖGB Vorarlberg and 128 of its

individual members (Kurt KÖPRUNER,

Karl FALSCHLUNGER and Others)

against Austria

The European Commission of Human Rights sitting in private

on 13 April 1989, the following members being present:

MM. S. TRECHSEL, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

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 18 June 1986

by Fraktion Sozialistischer Gewerkschafter im ÖGB Vorarlberg and 128

of its individual members (Kurt KÖPRUNER, Karl FALSCHLUNGER and

Others, cf. the list in the Appendix) against Austria and registered

on 9 September 1986 under file No. 12387/86;

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 submitted by the applicants may be

summarised as follows:

The applicants are 128 individual members of the group of

socialist trade-unionists in the Vorarlberg branch of the Austrian

Trade Union Federation (Fraktion sozialistischer Gewerkschafter im

Österreichischen Gewerkschaftsbund Vorarlberg) who, in 1984, presented

themselves as candidates for the elections to the Workmen's Chamber

(Arbeiterkammer) of Vorarlberg. They include the present Chairman

(Obmann) of this group, Mr. Kurt Köpruner, and its former Chairman who

was still in office at the relevant time, Mr. Karl Falschlunger. All

individual applicants are Austrian citizens residing at various places

of Vorarlberg. The group of socialist trade-unionists as such,

represented through its Chairman, Mr. Köpruner, wishes to figure as

a further applicant. All applicants are represented by Rechtsanwalt

Dr. W.L. Weh of Bregenz.

In the course of the electoral campaign, the group of

socialist trade-unionists published and distributed to the general

public a series of pamphlets under the title "Wussten Sie, dass ..."

("Did you know that ..."). One of the pamphlets (No. 19 published in

February 1984 with a circulation of 12,000 copies) dealt in a critical

way with the medical profession in Vorarlberg. It was claimed, in

particular, that the medical profession had a disproportionate income

in comparison to other sectors of the population and could lead a

life of luxury. Criticism was expressed in this context concerning

the system of private patients who, it was claimed, unjustifiably

received better treatment than other patients covered by the social

security system. Reference was also made to a book in which the

authors allegedly had proven "how well-known members of the medical

profession abuse[d] innocent patients for experimental purposes,

how side-effects of drugs [were] kept secret, how physicians and

pharmacists [were] being bribed for purposes of increased sales and

how the prices of medicines [were] fixed in an arbitrary manner".

In the centre of this pamphlet was a column entitled "Was Sie

über Primarärzte wissen müssen" ("What you should know about head

physicians of hospitals"). Under the heading "Was sie mögen" ("What

they like") twelve items were listed, including:

- chronically ill private patients;

- nice gifts of the pharmaceutical industry;

- anonymous bank accounts in Switzerland.

Under the heading "Was sie nicht mögen" ("What they do

not like") thirteen items figured, including:

- normal patients.

These and a number of further passages of the pamphlet were

made the subject of proceedings under the Media Act (Mediengesetz)

by twelve (out of a total of some 45) head physicians of various

Vorarlberg hospitals, who were supported by the Vorarlberg Chamber of

Medical Practitioners (Ärztekammer). They applied for the forfeiture

(Einziehung) of the pamphlet in autonomous proceedings (selbständiges

Verfahren) under Section 33, publication of the judgment under Section 34,

and publication of a notice on the introduction of the proceedings under

Section 37 of the Media Act.

Section 33 para. 2 of the Act reads as follows:

(German)

"Auf Antrag des Anklägers ist auf Einziehung in einem

selbständigen Verfahren zu erkennen, wenn in einem Medium

der objektive Tatbestand einer strafbaren Handlung

hergestellt worden ist und die Verfolgung einer bestimmten

Person nicht durchführbar oder ihre Verurteilung wegen des

Vorhandenseins von Gründen, die eine Bestrafung ausschliessen,

nicht möglich ist. Wäre der Täter bei erbrachtem Wahrheits-

beweis nicht strafbar, so steht dieser Beweis ... auch dem

Medieninhaber (Verleger) als Beteiligtem ... offen."

(Translation)

"Upon the application of the prosecutor the Court shall

pronounce the forfeiture in autonomous proceedings if the

objective conditions of a criminal offence have been

fulfilled in a press publication and if either prosecution

of a particular person or, by virtue of reasons which

exclude the imposition of a penalty, his conviction is not

possible. If no punishment can be imposed in case of the

offender having proved the truth, the defence of truth shall

also be available to the owner (publisher) of the press

product in question being the interested party ...".

It was claimed that the incriminated passages fulfilled the

objective conditions of the criminal offence of defamation in the

press (üble Nachrede in einem Druckwerk) within the meaning of

Section 111 para. 2 of the Penal Code (Strafgesetzbuch) and that the

group of socialist trade-unionists as a whole was responsible for this

under the imprint of the publication. However, as the group was not a

legal person, the application was directed against its individual

members.

The proceedings were conducted before the competent criminal

court, i.e. a single judge of the Regional Court (Landesgericht) of

Feldkirch.

On 17 April 1984 the Court issued an injunction against the

group of socialist trade-unionists ordering it to publish a notice that

the proceedings had been brought.

On 26 November 1984 the Court held a trial (Hauptverhandlung)

of the case as a consequence of which it severed the proceedings

against six individual applicants who might have been involved in the

preparation and dissemination of the publication. They included, in

particular, Mr. Falschlunger who had declared that he was responsible

for the publication. As regards the remaining individual applicants,

the Court found it established that they had not participated in the

preparation or dissemination. It considered that under the general

principles of criminal law they could not be held criminally

responsible and therefore had to be acquitted. Accordingly the Court

rejected the application insofar as it concerned these applicants.

The head physicians' appeal against this decision was allowed

by the Innsbruck Court of Appeal (Oberlandesgericht) on 20 March 1985.

It held that, since the group of socialist trade-unionists mentioned

in the imprint was not a legal person, and as no individual person

responsible for the publication had been indicated, it was legally

justified to hold all persons constituting the group responsible. In

autonomous proceedings under Section 33 of the Media Act the

plaintiffs could not be required to identify those persons who had

actually contributed to the publication as this would be contrary to

the ratio legis of the provisions concerning the imprint. It was

the purpose of Section 33 to provide a remedy if no case could be

brought against an individual person. The general principles of

criminal responsibility were not applicable in such a case, and

therefore proceedings could be brought against all applicants as the

publication was attributable to them under the Media Act. The Court

of Appeal accordingly referred the case back to the Regional Court

with a view to determining whether or not the contents of the

publication fulfilled the objective conditions of a criminal offence.

The Regional Court held a new trial on 24 May 1985. It

allowed the application against all 128 individual applicants, finding

that the above-cited passages of their publication objectively

constituted the offence of defamation under Section 111 paras. 1 and 2

of the Penal Code. Furthermore, it ordered the forfeiture of that

publication under Section 33 of the Media Act as well as the

publication of the judgment in a local newspaper under Section 34 of

the Act.

In the reasons the judgment also referred to the context of

the above passages. This included the reproach made to physicians that

they accorded better treatment to patients with a supplementary

private insurance and the reference to a book. Seen in this context,

the Court considered that the central column could be interpreted by

"socially integrated and value orientated average readers" as a

personal attack on and defamation of head physicians in Vorarlberg,

exposing them to a suspicion of corruption and other criminal

offences. The statement that they liked chronically ill private

patients, but disliked normal patients involved a reproach of

unethical behaviour; the statement that they liked nice gifts of the

pharmaceutical industry involved a reproach that they were open to

bribery; and the statement that they liked anonymous bank accounts in

Switzerland involved a reproach of tax evasion. Finally, the authors

of the publication had identified themselves with the statements in

the book which they had cited.

The Court did not find it proven that these attitudes

(Gesinnungen) insinuated to the head physicians were true. The

incriminated statements could not be defended by the applicants

as being general statements devoid of any meaning (inhaltsleere

Allerweltsaussagen); this would be incompatible with the functions of

a publication made in the course of an electoral campaign and which

for the average reader could only serve the purpose of attacking

political opponents. Also, the applicants' offer to prove the truth

of their statements had to be rejected because the proposed evidence

was either of an exploratory nature (Erkundungsbeweis) or not

specific. The applicants had not indicated any specific facts

capable of demonstrating the existence of the alleged attitudes of the

head physicians concerned. These had been singled out with sufficient

precision to allow their identification, and they were entitled to

complain of defamation even if they had not been attacked individually

but as a group. In autonomous proceedings an intention to defame was

not required under Section 33 of the Media Act. It was sufficient

that the incriminating statements were objectively defamatory and that

the defendants had not proven the truth. The applicants' acts could

not be justified under the constitutional provisions concerning

freedom of expression, including Article 10 of the Convention, as they

did not constitute "objective criticism proportionate both as regards

its cause and the terms employed" ("anlass- und ausdrucksadäquate

sachliche Kritik").

The applicants' appeal (Berufung) in which they alleged the

nullity of the above judgment was rejected by the Court of Appeal on

19 December 1985. The Court of Appeal held that the Regional Court,

when rejecting their offer to prove the truth of their statements, had

not infringed the applicants' rights of defence. The defence of truth

was often used to aggravate the interference with the reputation of

the injured person, and therefore it was necessary to prevent abuses

of this defence, in particular, by a strict control of the alleged

facts and the subject matter of the proof offered. While in the case

of allegations of despicable or immoral behaviour the scope of

evidence of truth could not be restricted within narrow limits,

only evidence of concrete facts likely to prove such behaviour should

be admitted. In the present case the applicants had failed to specify

the facts which they wished to prove and to show their relevance to

the defamation issue. In assessing that issue, the Regional Court had

considered all relevant elements of the publication. By concentrating

on certain passages it had not distorted its objective meaning. It

had correctly held that the plaintiffs, being members of a relatively

small group of persons attacked by the publication, could complain of

defamation. The fact that, apart from head physicians, other members

of the medical profession had also been criticised in the publication

had not been established by the Regional Court and therefore could not

be raised by the applicants on appeal. The applicants could not

invoke the possibility of different interpretations of the

incriminating passages which did not constitute a reproach against the

plaintiffs. The meaning of the incriminating passages as intended by

the authors and perceived by the public was based on findings of the

trial court by which the Court of Appeal was bound. It could only

intervene if it had doubts concerning these findings, but not

concerning their assessment by the trial court in the exercise of its

free evaluation of evidence. The applicants' interpretation of the

incriminating passages departed from the facts as established by the

trial court and therefore could not support the allegation that the

law had been wrongly applied. Moreover, the trial court's

interpretation of the incriminating passages had been correct and

these passages objectively constituted the offence of defamation

within the meaning of Section 111 paras. 1 and 2 of the Penal Code.

COMPLAINTS

1. The applicants complain that the restriction of their

publication violated Article 10 of the Convention and Articles 1

and 3 of Protocol No. 1 to the Convention.

Under Article 10 they submit that the restriction of their

freedom of expression was not necessary in a democratic society as

there was no pressing social need. Furthermore, the Austrian courts

did not apply the right criteria when judging the case. In particular,

they failed to consider the incriminating passages in the context of

the publication, which was part of an important electoral campaign

conducted in a heated political atmosphere. The issues discussed - the

high incomes of the medical profession from private patients and the

better treatment accorded to the latter - had been in dispute between

the group of socialist trade-unionists and the Chamber of Medical

Practitioners for a long time. Informed readers must have understood

the satirical undertone in the exaggerated form of presentation. The

aim of the publication was not to attack individual persons, but to

pass a critical value judgment on a question of social policy. The

applicants challenge the Court of Appeal's statement that the

interpretation of the incriminating statements is the task of the

trial court, whose findings are binding. This approach is at variance

with a pluralistic democratic society. They also criticise that the

Regional Court's judgment did not permit them to rely on a book which

was on public sale and which had not been the subject of any

restrictions.

Under Article 1 of Protocol No. 1 the applicants claim that

the forfeiture of their publication constituted an unjustified

interference with their property rights.

Under Article 3 of Protocol No. 1 they claim that it

interfered with their campaign concerning the elections to the

Workmen's Chamber which, in their view, fall within the scope of this

provision. They stress that a restriction of this kind may limit the

freedom of expression in future electoral campaigns.

2. All individual applicants, except Mr. Falschlunger, also

complain of the court proceedings. Mr. Falschlunger accepts his

responsibility for the publication at issue and that on this basis

criminal proceedings for defamation could be instituted against him.

The other applicants invoke Articles 6, 7 and 11 of the

Convention, claiming that they had not been personally involved in the

preparation and dissemination of the publication and therefore could

not be held responsible for it. The plaintiffs knew that Mr.

Falschlunger was responsible and therefore could have brought a

private prosecution against him. However, by admitting autonomous

proceedings against all applicants, the latter were de facto treated

as accused. This impression was given to the general public by the

manner in which the proceedings were conducted. The case was dealt

with by the criminal courts under the Code of Criminal Procedure and

the provisions of the Penal Code concerning defamation. A trial

(Hauptverhandlung) was held, and in the record thereof reference was

made to a "criminal case" against the applicants and to the reading of

the "indictment". The impression was thus created that all 128

individual applicants had been found guilty and had been convicted of

a criminal offence. However, under Articles 6 and 7 of the Convention

nobody may be punished for a criminal offence without his personal

guilt having been established. This fundamental principle has been

disregarded in the present case.

The applicants further invoke Article 11 of the Convention

and claim that the fact of holding them individually responsible

only because they belonged to the group of persons indicated in the

imprint of the publication interferes with trade union freedom or

freedom to create political associations. This practice must deter

the individuals concerned from becoming members of the trade unions or

associations in question. This interference with trade union freedom

cannot be justified under Article 11 para. 2 because the person

responsible for the publication was known and the rights of others

thus could be protected by proceeding against that person.

THE LAW

1. The applicants, i.e. the group of socialist trade-unionists in

the Vorarlberg branch of the Austrian Trade Union Federation and 128

of its individual members who had presented themselves as candidates

in the 1984 elections to the Vorarlberg Workmen's Chamber, complain of

the restriction of a publication issued in the course of their

electoral campaign. They allege that this restriction unjustifiedly

interfered with their rights under Article 10 (Art. 10) of the Convention and

Articles 1 and 3 of Protocol No. 1 (p1-1, P1-3) to the Convention.

The individual applicants, except Mr. Falschlunger, also

complain of the relevant court proceedings, claiming that they

involved violations of Articles 6, 7 and 11 (Art. 6, 7, 11) of the Convention.

2. The Commission must first examine the applicants' status for

the purposes of Article 25 (Art. 25) of the Convention. Under this provision,

the Commission may receive petitions "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 [the] Convention".

The Commission notes that the proceedings complained of were

"autonomous proceedings" (selbständiges Verfahren) under Section 33

of the Media Act which originally were brought both against the group

of socialist trade-unionists as mentioned in the imprint of the

publication at issue, and against the 128 individual members of this

group who were candidates for the election to the Workmen's Chamber.

However, as a result of the proceedings only the latter were regarded

as defendants for the purposes of Section 33 of the Media Act, while

the group of socialist trade-unionists as such was not treated as a

defendant because it was not a legal person. It now claims to have

been a victim of a violation of its Convention rights along with its

above 128 individual members.

The Commission notes that this group was not recognised as a

legal person by the Austrian courts. It may therefore be doubtful

whether it can validly be represented by its Chairman, Mr. Köpruner.

In any event, the group as such was not held responsible for the

publication, it was not represented in the domestic proceedings, and

the sanctions imposed as a result of the proceedings were not

pronounced against it. In these circumstances the Commission does not

consider the group of socialist trade-unionists as a separate victim

for the purposes of Article 25 (Art. 25) of the Convention, in addition to the

128 individuals belonging to this group who were directly affected by

the proceedings.

The Commission notes that the imprint of the restricted

publication referred to the group of socialist trade-unionists, and

that the representatives of the group in the Workmen's Chamber, and

prior to their election, its candidates, are commonly referred to

under this name. This apparently was the reason why the individual

applicants, who had not been otherwise identified, were treated as

defendants in the domestic proceedings. For the purpose of Article 25

(Art. 25) of the Convention they constitute a "group of individuals" under the

aggregate name "Fraktion sozialistischer Gewerkschafter im ÖGB

Vorarlberg" (cf. mutatis mutandis, No. 6538/74, Times Newspapers Ltd.,

The Sunday Times, and Harold Evans v. the United Kingdom, Dec.

21.3.75, D.R. 2 p. 90 at p. 95).

3. All members of the group, except Mr. Falschlunger, complain

under Article 6 (Art. 6) of the Convention that the proceedings were directed

against them individually, although they had not been involved in the

preparation and dissemination of the publication, and that this

created the impression that they were convicted of a criminal offence,

although their guilt had not been established.

Article 6 (Art. 6) provides inter alia that "in the determination of

his civil rights and obligations or of any criminal charge against him,

everyone is entitled to a fair ... hearing ..." (para. 1), that

"everyone charged with a criminal offence" shall "be presumed innocent

until proved guilty according to law" (para. 2), and that he shall

have certain "minimum rights" of defence (para. 3).

The Commission does not find it necessary to determine to

which extent Article 6 (Art. 6) was applicable to the proceedings complained of

as the applicants' complaints in this respect must in any event be

rejected.

The Commission does not regard it as contrary to the

Convention that the Austrian courts established the joint liability of

the applicants for the publication issued on their behalf, although

not all of them had actually contributed to its preparation and

dissemination. The laws of many Convention States provide for cases

of objective liability, including objective liability for the content

of publications. Moreover, it is not unusual that in cases where such

objective liability arises for a group of persons who are not

organised as a legal person, the individuals concerned are held to be

jointly responsible. This formal criterion does not mean that each

and every individual comprised in the group is considered as having

committed a reproachable act, but only that he or she must sustain the

legal consequences of such an act which has been committed in their

common sphere of responsibility. The Commission notes that in the

present case the applicants could fully plead their case before the

competent Austrian courts, and that in this context they could also

submit all arguments speaking against the assumption of their joint

liability for the publication. The fact that the courts rejected

their arguments in this respect is not a circumstance which would

allow the conclusion that the hearing was unfair.

The Austrian courts considered that certain statements

contained in the applicants' publication were objectively defamatory

and constituted a criminal offence under Section 111 of the Penal

Code. The manner in which the courts reached this conclusion cannot

be regarded as unfair. The Commission here notes that the meaning of

the statements concerned was treated as a fact to be established by

the trial court in the free evaluation of the evidence and that this

court's finding could not be reviewed on appeal. The trial court

referred to a hypothetical well-informed average reader. The

different interpretation proposed by the applicants was considered by

the courts, but not accepted. The Commission does not find any element

of unfairness in this approach.

Nor is there any indication that the presumption of innocence

and the applicants' rights of defence were disregarded. It remained

the task of the plaintiffs to prove the objectively defamatory nature

of the statements in question although in autonomous forfeiture

proceedings under the Media Act it was not necessary for them to

establish the applicants' intent to defame. The plaintiff head

physicians could show that in the applicants' publication highly

reproachable attitudes were imputed to them which involved, or at

least came close to involving, unethical or criminal behaviour. In

these circumstances the courts could reasonably conclude that the

objective conditions of the criminal offence of defamation were

fulfilled.

The applicants were not left without any defence, however. The

objectively defamatory nature of the publication having been

established, they still could avail themselves of the defence of truth

as provided for in Section 112 of the Penal Code. In its decision of

19 December 1985 the Court of Appeal indicated that the scope of

evidence of truth admissible in this respect could not be restricted

within narrow limits. However, the evidence offered by the applicants

was apparently not based on any concrete facts which were found to be

susceptible of showing that the reproaches made to the head physicians

were true. The Commission considers that in these circumstances the

trial court did not act unfairly when refusing to accept this

evidence.

It follows that the applicants' complaints under Article 6 (Art. 6) of

the Convention are manifestly ill-founded within the meaning of

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

4. The applicants, except Mr. Falschlunger, also complain of a violation

of Article 7 (Art. 7) of the Convention. Paragraph 1 of this Article provides,

inter alia, that "no one shall be held guilty of a criminal offence on account

of any act or omission which did not constitute a criminal offence under

national or international law at the time when it was committed".

The Commission recalls that the proceedings complained of were

autonomous proceedings under the Media Act aiming at the forfeiture of the

applicants' publication. In these proceedings the applicants were neither

formally "accused" nor "held guilty" of a criminal offence. Their liability

was not engaged by virtue of a criminal responsibility for the offence of

defamation, but by virtue of their status as publishers. In these

circumstances Article 7 (Art. 7) is not applicable to the proceedings

complained of. This part of the application is therefore incompatible with the

provisions of the Convention, ratione materiae, and must be rejected under

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

5. The applicants, except Mr. Falschlunger, further claim that the fact

of holding them jointly responsible for the publication involved a violation of

Article 11 (Art. 11) of the Convention which guarantees inter alia everyone's

right to freedom of association, including the right to form and join trade

unions for the protection of his interests. However, the Commission considers

that the proceedings complained of did not in any way interfere with this

right. The applicants remained free to become members of any lawful

association, including trade unions or branches thereof. The fact that by

joining such organisations they could incur a joint liability for publications

of these organisations in certain cases was a normal consequence of their

membership. In the present case this joint liability arose as a consequence of

the formulation of the imprint of the publication in question and the fact that

the group of socialist trade-unionists mentioned therein was not a legal person

susceptible of incurring a liability of its own. In these circumstances it was

justified that the individuals constituting the group were jointly held liable.

The Commission concludes that this part of the application is manifestly

ill-founded.

6. All applicants complain that the restriction of their

publication violated 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

prescribed 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 or morals, for the protection

of 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 applicants' publication was found to be defamatory and

ordered to be forfeited. There has accordingly been an interference

with the applicants' right to freedom of expression within the meaning of

Article 10 para. 1 (Art. 10-1) which requires to be justified under the second

paragraph of this provision.

The interference was based on the provisions of the Media Act in

conjunction with Section 111 of the Penal Code. It was therefore "prescribed

by law". Furthermore, it served the purpose of "protecting the reputation of

others", i.e. of the head physicians of Vorarlberg hospitals who considered

themselves defamed by the publication. The only question to be examined is

therefore whether or not the interference was "necessary in a democratic

society" for this purpose, i.e. whether there was a "pressing social need" for

it, whether the means employed were proportionate to the aim pursued and

whether the reasons adduced by the Austrian courts to justify it were "relevant

and sufficient" (cf. Eur. Court H.R., Lingens judgment of 8 July 1986, Series

A no. 103, pp. 25-26, paras. 39-40).

Freedom of expression, as secured in paragraph 1 of Article 10, (Art.

10-1) constitutes one of the essential freedoms of a democratic society and one

of the basic conditions for its progress and for each individual's

self-fulfilment. Subject to paragraph 2, it is applicable not only to

"information" or "ideas" that are favourably received or regarded as

inoffensive or as a matter of indifference, but also to those that offend,

shock or disturb. Such are the demands of that pluralism, tolerance and

broadmindedness without which there is no "democratic society" ( Eur. Court

H.R., Handyside judgment of 7 December 1976, Series A no. 24, p. 23 para. 49).

These principles are of particular importance as far as electoral

campaigns are concerned. In elections to any kind of representative bodies,

such as in the present case the Workmen's Chamber, it is important that those

presenting themselves as candidates can speak freely about the political,

economic and social problems which they consider relevant. This is not limited

to the specific functions of the representative body in question. In a

democratic society the electorate and the public in general have an interest to

know the whole range of attitudes of their future political representatives,

even if their tasks concern only a particular section of the population and

particular spheres of social activity. Therefore it was legitimate for the

applicants to express critical views in the course of their electoral campaign

on matters of medical care and possible shortcomings in connection therewith.

In this context it was also legitimate for the applicants to attack their

political opponents, even those represented by another professional

organisation such as in the present case the Chamber of Medical Practitioners.

However, even in an electoral campaign it is justified to require the

candidates not to overstep the bounderies set, inter alia, for the "protection

of the reputation of others". While in a political debate the limits of

acceptable criticism are wider than in a discussion between private individuals

(cf. Eur. Court H.R., Lingens judgment, loc. cit., para. 42), it must be

noted that in the present case very harsh criticism was levelled against the

members of another professional group who were not political opponents of the

applicants in the electoral campaign at issue. The courts found that these

statements fulfilled the objective conditions of the criminal offence of

defamation as defined in Section 111 of the Penal Code, and that the applicants

had failed to offer evidence showing the truth of their allegations.

The applicants claim that the courts, basing themselves on only one of

several possible interpretations of the text, overlooked the satirical overtone

of the publication and the fact that the incriminating allegations made therein

against head physicians were recognisable exaggerations. The Commission finds

that, even allowing for satirical exaggerations and an aggressive tone

justified in a heated political debate, the statements made in the applicants'

publication concerning head physicians of Vorarlberg hospitals could reasonably

be regarded as defamatory. They could in fact be understood as insinuating

that those persons held highly reproachable attitudes involving or at least

coming close to unethical and criminal behaviour.

The applicants claim that their allegations were no more than critical

value judgments on certain questions of social policy. The Commission accepts

that the basic message which the publication sought to convey was criticism of

the high income of the medical profession and of allegedly unjustified

advantages accorded to private patients. However, the particular passages in

the publication which were found to be defamatory were made in the form of

factual assertions concerning the attitudes of physicians. Whereas the truth

of value judgments is not susceptible of proof (cf. Eur. Court H.R. Lingens

judgment, loc. cit., p. 28 para. 46) the existence of facts such as those

alleged in the applicants' publication can be demonstrated. As already

mentioned, the applicants failed to discharge the proof of truth as they did

not offer evidence showing that their allegations concerning the attitudes of

head physicians in Vorarlberg were correct.

The applicants finally complain that the trial court referred to

quotations from a book critical of the medical profession which was on public

sale and had not been the subject of any restriction. The Commission notes,

however, that in the operative part of the Regional Court's decision of 24 May

1985 the passages referring to this book were not mentioned. No restriction

was thus imposed regarding these quotations. In the reasoning the quotations

were used as an additional argument justifying the restriction in respect of

the incriminating passages concerning the head physicians.

The Commission concludes that, taking all circumstances into account,

the restriction complained of could reasonably be regarded as "necessary in a

democratic society" "for the protection of the reputation of others". It was

thus covered by Article 10 para. 2 (Art. 10-2) of the Convention. The

applicants' complaint of an unjustified interference with their right to

freedom of expression is therefore manifestly ill-founded within the meaning of

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

7. The applicants further complain that the declaration of forfeiture

regarding their publication amounted to an unjustified interference with their

property rights as guaranteed by Article 1 of Protocol No. 1 (P1-1) to the

Convention. This Article provides:

"Every natural or legal person is entitled to the

peaceful enjoyment of his possessions. No one shall

be deprived of his possessions except in the public

interest and subject to the conditions provided for

by law and by the general principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it deems

necessary to control the use of property in accordance with

the general interest or to secure the payment of taxes or

other contributions or penalties."

The Commission considers that in the given circumstances the

forfeiture could be deemed "necessary to control the use of property

in accordance with the public interest", as authorised by the second

paragraph of this provision (cf. Eur. Court H.R., Handyside judgment,

loc. cit., pp. 29-30, paras. 62-63). In this respect, the same

arguments apply as under Article 10 (Art. 10) of the Convention. This part of

the application is accordingly also manifestly ill-founded.

8. The applicants finally complain that the restriction of their

publication violated Article 3 of Protocol No. 1 (P1-3) by which the High

Contracting Parties have undertaken to hold free elections at

reasonable intervals by secret ballot, under conditions which will

ensure the free expression of the opinion of the people in the choice

of the legislature. However, the Commission notes that the

applicants' publication was made in the course of an electoral

campaign for elections to the Workmen's Chamber, a body of

professional representation which has no legislative functions. For

this reason Article 3 of Protocol No. 1 (P1-3) does not apply to the case,

and the applicants' complaint in this respect is therefore

incompatible with the provisions of the Convention, ratione materiae,

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

APPENDIX

List of individual applicants' names

Kurt Köpruner

Karl Falschlunger

Fritz Rudiger

Alwin Riedmann

Heinz Starchl

Josef Hassler

Wilfried Mayer

Willibald Elissier

Reinold Mähr

Willi Rohrer

Kurt Martello

Edgar Entlicher

Karl Wutschitz

Herbert Dür

Johanna Striessnig

Alois Triebl

Theresia Dönz

Franz Leikam

Kurt Dapre

Ernst Gabriel

Richard Lueger

Rosalia Leikam

Raimund Hattler

Willibald Perner

Gerhard Hüttenbrenner

Rudolf Bichler

Hermann Rud

Erich Mauracher

Norbert Loacker

Karl-Heinz Wabin

Richard Kroisenbrunner

Erwin Pichler

Alfred Ertl

Bruno Abram

Friedrich Tschofen

Alfred Endrich

Roland Tangl

Margarethe Dörflinger

Hans Oberleitner

Kurt Geiger

Werner Gächter

Norbert Wrisinig

Julius Müller

List of individual applicants' names (continued)

Walter Pratzner

Leopold Untermayer

Herbert Böhler

Josef Konrad

Hubert Reinsberger

Norbert Thoma

Irma Perner

Willibald Moosegger

Sibylle Lechthaler

Erich Hammer

Adolf Veits

Leonhard Bader

Kurt Vent

Franz Burtscher

Klaus Kessler

Karin Auer

Franz Borg

Wolfgang Stadlmayr

Adolf Gaggl

Christine Hehle

Maria Pauritsch

Klaus Hammer

Bernd Behr

Werner Hämmerle

Erich Plattner

Siegfried Poprat

Gertraud Reicht

Ferdinand Lugmayr

Reinhold Gassner

Ewald Wuggenig

Sigmund Mozes

Walter Marchel

Alois Sageder

Irma Rudigier

Walter Klaner

Franz Zechner

Rosmarie Kirschner

Anton Fessler

Flecker Monika

Leonhard Treichl

Albert Helmut Burtscher

Karl Höfer

Erich Feuerstein

List of individual applicants' names (continued)

Rudolf Fischer

Silvia Prirsch

Alfons Masal

Otto Ebenhoch

Johann Fink

Adolf Grubbauer

Max Krank

Eugen Fessler

Karl Dürtscher

Sonja Neyer

Manfred Bitschnau

Josef Ortner

Ingrid Gitterle

Wolfram Jäger

Hermann Pippan

Willi Senn

Adolf Mazagg

Walter Gelbmann

Gabriele Treitinger

Maria-Loise Kottas

Peter Paulitsch

Günther Ill

Karl Schlattinger

Josef Chesani

Günter Kuczynski

Emil Kessler

Maria Malin

Franz Hötzeneder

Hildegard Mair

Anton Pieber

Ernst Stejskal jun.

Manfred Stimpfl

Hedi Meusburger

Johann Nitz

Rudolf Eberle

Margarethe Blacha

Roald Jussel

Anita Auer

Helmut Pech

Theresia Baumann

Otto Bögner

Gernot Ilg

Menu

FRAKTION SOZIALISTISCHER GEWERKSCHAFTER IM ÖGB VORARLBERG ; 128 OF ITS INDIVIDUAL MEMBERS (KÖPRUNER, Kurt, FALSCHLUNGER, Karl and OTHERS) v. AUSTRIA

FRAKTION SOZIALISTISCHER GEWERKSCHAFTER IM ÖGB VORARLBERG ; 128 OF ITS INDIVIDUAL MEMBERS (KÖPRUNER, Kurt, FALSCHLUNGER, Karl and OTHERS) v. AUSTRIA

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