Information Note on the Court’s case-law 27

February 2001

Jerusalem v. Austria - 26958/95

Judgment 27.2.2001 [Section III]

Article 10

Article 10-1

Freedom of expression

Injunction prohibiting municipal councillor from repeating statements about sects: violation

Facts : The applicant was a member of Vienna Municipal Council, which also acts as the Regional Parliament. During a council debate on the granting of su bsidies to associations assisting parents whose children had become involved in sects, the applicant, in her capacity as a councillor, made a speech in which she referred to the totalitarian character and fascist tendencies of "psycho-sects". She went on t o refer to a particular sect – the IPM – which she maintained had gained influence on the drugs policy of the Austrian People's Party and criticised the cooperation between the sect and the party. The IPM brought civil proceedings against the applicant and the Regional Court granted an injunction prohibiting the applicant from repeating her statements that the IPM was a sect of a totalitarian character. It also ordered that she retract the statements and that the retraction be published in several newspaper s. The court considered that the statements were not value judgments but statements of fact which the association's statutes and other evidence showed to be untrue. The applicant appealed to the Court of Appeal, which upheld the injunction but quashed the other orders. It considered that the evidence proposed by the applicant was irrelevant, since she had offered only to show that the association was a sect and not to justify her definition of a psycho-sect. The Supreme Court declared inadmissible the appli cant's further appeal on points of law, although it confirmed that statements such as "fascist tendencies" or "totalitarian character" were statements of fact which the applicant had failed to prove.

Law : Article 10 – The interference with the applicant's freedom of expression was prescribed by law and pursued the legitimate aims of protecting the rights and reputation of others. As to necessity, the applicant was an elected politician and freedom of expression is especially important for elected representa tives of the people. On the other hand, private individuals and associations lay themselves open to scrutiny when they enter the arena of public debate, and since the IPM was active in a field of public concern and had cooperated with a political party, it should have shown a higher degree of tolerance to criticism. The applicant's statements were made in the course of a political debate and, although not covered by immunity as they would have been in a session of the Regional Parliament, the forum was comp arable to Parliament as far as the public interest in protecting the participants' freedom of expression is concerned and therefore very weighty reasons are needed to justify an interference. The purpose of the speech was to highlight the necessity of subs idising anti-sect groups and, without mentioning the IPM at that stage, the applicant expressed the opinion that sects have a totalitarian character; only later in the speech did she criticise the cooperation between the IPM and the People's Party. The Aus trian courts qualified the comments as statements of fact, but in the Court's view they were value judgments and the question is whether there was a sufficient factual basis for them. The applicant had offered documentary evidence which might have been rel evant in showing a prima facie case that the value judgments were fair comment, but the Court of Appeal refused to take further evidence, regarding it as irrelevant. However, the distinction which it drew was artificial and disregarded the true nature of t he debate, and by requiring the applicant to prove the truth of her statements, while at the same time depriving her of an effective opportunity to produce evidence to support them, the Austrian courts overstepped the margin of appreciation. The injunction thus amounted to a disproportionate interference.

Conclusion : violation (unanimously).

Article 6 § 1 – In view of the above conclusion, the Court considered it unnecessary to examine this complaint.

Conclusion : not necessary to examine (unanimously).

Article 41 – The Court considered that the finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage. It made an award in respect of costs.

© Council of Europe/European Court of Human Rights This summary by the Reg istry does not bind the Court.

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