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PRAGER AND OBERSCHLICK v. AUSTRIADISSENTING OPINION OF Mrs. G.H. THUNE, MM. M.F. MARTINEZ,

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Document date: February 28, 1994

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PRAGER AND OBERSCHLICK v. AUSTRIADISSENTING OPINION OF Mrs. G.H. THUNE, MM. M.F. MARTINEZ,

Doc ref: • ECHR ID:

Document date: February 28, 1994

Cited paragraphs only

DISSENTING OPINION OF Mrs. G.H. THUNE, MM. M.F. MARTINEZ,

B. MARXER and M.A. NOWICKI

We cannot share the opinion of the majority of the Commission as

to the question of the necessity of the interference with the

applicants' freedom of expression.

We consider that in matters of public interest involving the

functioning of the public administration, including the judiciary, the

test of necessity has to be particularly strict.

In the present case, the first applicant, in aiming to attract

public attention for his criticism as to the performance of judges at

the Vienna Regional Court in general, and the professional or personal

conduct of specific judges like J., took recourse to generalisations

and a particularly strong and provocative wording. This is particularly

true for the first two of the incriminated passages which were

contained in the introductory part of the article and did not directly

point at J.

The first applicant's statements did not lack a factual basis.

The article was inter alia based on previous publications in the press,

on inquiries of two criminal sociologists relating to decisions on

detention on remand and sentencing in the district of the Vienna Court

of Appeal, and on a university study in 1985 on regional sentencing

practices in Austria, and third persons, in particular lawyers were

named as sources of information (para. 19 above). Though the first

applicant did not give J. a possibility to comment upon the envisaged

accusations, and did not gather a personal impression of J., there is

no serious doubt as to his good faith.

Moreover, the first applicant, in the course of the trial against

him, referred to single incidents in order to prove his accusations

against Judge J. While not calling the truth of these submissions into

question, the Eisenstadt Regional Court did not regard this evidence

as pertinent. Dealing only with the five separated passages of the

first applicant's article and analysing the objectively defamatory

nature of these terms, the Regional Court found a reproach of general

bias and improper professional behaviour in the first applicant's

statements made in the five passages. However, this conclusion drawn

by the Regional Court amounted in itself to a value-judgment, for which

no proof of truth is possible (cf. Schwabe judgment of 28 August 1992,

Series A no. 242-B, p. 34, para. 34).

Finally, the first applicant's conviction and sentence, and the

related court orders affecting also the second applicant, were capable

of discouraging members of the press from publishing articles on

matters of public concern.

In view of these considerations, our conclusion is that the

interference complained of was not "necessary in a democratic society

... for the protection of the reputation ... of others ... or for

maintaining the authority ... of the judiciary".

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

21 December 1989 Introduction of the application

11 January 1990 Registration of the application

Examination of Admissibility

6 January 1992 Commission's decision to invite

the Government to submit observations on

the admissibility and merits of the

application

24 April 1992 Government's observations

24 June 1992 Applicants' observations in reply

29 March 1993 Commission's decision to declare the

applicants' complaints under Articles 10

and 14 of the Convention admissible, and

to declare the remainder of the

application inadmissible

Examination of the merits

4 September 1993) Commission's consideration of the state of

15 January 1994 ) proceedings

28 February 1994 Commission's deliberations on the

merits, final vote and adoption of

the Report

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