JOINT DISSENTING OPINION OF MRS J. LIDDY,

MM K. HERNDL AND C. BÃŽRSAN

We would have agreed with the findings of the majority but for the fact that we do not consider that there is jurisdictional competence to do so. Under Article 26 of the Convention we may only deal with an application after all domestic remedies have been exhausted.

In fact, at no stage did the applicant raise even in substance before the national courts the potential violation of its freedom of expression guaranteed under the Convention, which forms part of Austrian law at the level of Constitutional law. This requirement under Article 26 of the Convention applies even when the subject-matter of the domestic proceedings manifestly concerns issues such as family life or freedom of expression. Arguments based solely on other elements of domestic law which do not raise the matter of freedom of expression do not suffice in proceedings directed against writings that are considered to be defamatory or to disturb the public peace (see, mutatis mutandis , Eur. Court HR, Ahmet Sadik v. Greece judgment of 15 November 1996, Reports 1996-V, paras. 32 and 33).

Likewise, the applicant company failed to repeat its evidentiary motion before the Vienna Court of Appeal. Insofar as it challenges the fairness of the proceedings by reason of the failure by the courts to hear its two witnesses, Article 26 requires that the complaints intended to be made subsequently in Strasbourg should have been made before the appropriate domestic courts and in compliance with the formal requirements and time-limits laid down in domestic law. Use should be made of remedies to challenge decisions already given ( Cardot v. France judgment of 19 March 1991, Series A no. 200). We do not consider that the fact that the Vienna Regional Criminal Court dismissed the Public Prosecutor's Request at first instance is a circumstance that exempted the applicant from repeating its request for the taking of evidence at the relevant time, that is, before the Vienna Court of Appeal.

Neither do we consider that the Supreme Court's dismissal of the Procurator General's plea of nullity enables us to say that the applicant would have had no chance of success had it repeated its evidentiary motion before the Vienna Court of Appeal. As noted in the Commission's decision of admissibility, it appears that there was no prior case-law on this question when the Supreme Court gave judgment. It is not possible to know what were the considerations present in the minds of the judges of the Vienna Court of Appeal when they gave judgment. Their reasoning is succinct to a degree which makes it difficult to say that they would have rejected any point about the hearing of the applicant's witnesses had such point been raised before them.

Accordingly, we do not consider that the applicant provided the domestic courts with the appropriate opportunity to remedy the alleged breaches of the Convention and for these reasons do not consider that there was the necessary jurisdictional competence to find any violation.