DISSENTING OPINION OF Mr L. LOUCAIDES

JOINED BY MM M.P. PELLONPÄÄ, E. BUSUTTIL,

C.L. ROZAKIS, Mrs J. LIDDY AND Mr A. PERENI?

I am unable to agree with the majority in this case. I am of the view that

the judgment of the Austrian Supreme Court prohibiting the applicant from

repeating that an article suggesting that he was suffering from Aids and that he

had inflicted this disease on a policeman, amounted to "Nazi-journalism", was an

unjustified interference with his right to freedom of expression. In coming to

this conclusion I took into account the following:

(a) That the article in question was defamatory of the applicant and it was so

found by the Austrian Courts. It is true that an apology was published at some

stage by the authors of the article in question which however did not clearly

retract from the defamatory nature of the article. What is more important is

that the apology in question was accompanied again by a text repeating the

defamatory suggestion that the applicant was suffering from Aids.

(b) I believe that in a democratic society one is entitled to defend himself

against a defamatory attack and that in principle any reply on his part which is

within the limits of defence and is fairly relevant to the attack should be an

acceptable and legitimate method of reaction. In fact one can draw an analogy

between the criminal law of self-defence and one's right to defend oneself

against defamatory attacks.

(c) In this case the applicant, a politician and member of Parliament became the

object of an unfair and libelous attack by a newspaper attributing to him

indirectly, no more no less, the disease of Aids. On the occasion of a press

conference he commented upon the article in question and he confined himself to

the remark that it was "Nazi-journalism" when he was asked by a journalist how

he felt about the whole incident. Expert evidence was produced before the Court

of Appeal to the effect that the defamation of political opponents with an

alleged illness was an essential element of the journalism under Nazi regime.

(d) None of the Austrian Courts found that the reproach with "Nazi-journalism"

amounted to a charge of criminal behaviour under the relevant Austrian

legislation.

(e) As a matter of fairness and bearing in mind the demands of tolerance and

broadmindedness without which there is no democratic society, a person in the

position of applicant, i.e. a democratically elected politician with a mandate

to fullfil who became the target of a public defamatory attack should not be

prohibited from defending himself in the way he did. The demands of a democratic

political debate require that politicians should not be in a more

disadvantageous position than the press and that they should be allowed

sufficient latitude to answer back to press attacks.