DISSENTING OPINION OF MM. E. BUSUTTIL, A. WEITZEL, J.-C. SOYER,

H.G. SCHERMERS, F. MARTINEZ, MRS. J. LIDDY, MM. L LOUCAIDES, I. CABRAL

BARRETO, N. BRATZA, G. RESS, K. HERNDL

     We agree that the interference with the applicant's right to

freedom of expression was prescribed by law and that the essential

question is whether the reasons given by the Vienna Court of Appeal

were "relevant" and "sufficient" for the purpose of meeting the test

of necessity in a democratic society.

     The Vienna Court of Appeal, in its judgment, recognised the

applicant's involvement in the case of Mr. Androsch and his right to

criticise Mr. Androsch's statements in defence against the charges of

tax evasion.  However, weighing the different aspects of the case, the

Court of Appeal considered that the applicant's article went beyond

permissible criticism and amounted to a negative evaluation of Mr.

Androsch's defence which was likely to influence the outcome of the

proceedings against him.

     We are satisfied that the interference complained of was not

aimed at restricting the applicant's right to inform the public on the

course of criminal proceedings against a well-known former Austrian

politician. Moreover, it cannot be considered to have had the result

of effectively limiting this right, as it was possible to report on the

various aspects of the proceedings against Mr. Androsch, without

prejudging their outcome.

     In particular, the statement that "the sloshing around of money

of the seven black accounts permits no other interpretation than that

Androsch was evading taxes" cannot be regarded as merely describing the

existence of suspicion or, in the absence of any attribution to the

public prosecutor, as a mere record of a submission already made in

open court by a party to the proceedings, assuming that the public

prosecutor did in fact use these words. It amounted to a statement that

the applicant considered it beyond doubt that Mr. Androsch was guilty

of a criminal offence. It could only be understood by the public in

this sense. The statement was published at a time when the court had

to reach its verdict and when the impartiality of the lay judges in

particular could be affected by extraneous influence.

     Therefore, bearing also in mind the high profile character of the

proceedings, we find that the reasons adduced by the Court of Appeal

for the applicant's conviction, were "relevant" and "sufficient" for

the purposes of Article 10 para. 2.

     Furthermore, we are of the opinion that, taking the amount of the

fine imposed upon the applicant into account, the interference

complained of was "proportionate" to the legitimate aims pursued, of

maintaining the authority and, in particular, the impartiality of the

judiciary and protecting the right of the accused to the presumption

of innocence.

     We find that, having regard to the margin of appreciation of the

member States, the Vienna Court of Appeal was entitled to consider that

the applicant's conviction for having exercised prohibited influence

on criminal proceedings was "necessary in a democratic society".

Accordingly, the interference complained of can be considered to be

justified under paragraph 2 of Article 10 of the Convention.