PARTLY DISSENTING OPINION OF JUDGE THOR VILHJALMSSON

To my regret I have found it unavoidable to part company with the majority of the Court on the question of Article 10 (art. 10). I have voted for non-violation of that Article (art. 10) and would like to explain briefly my point of view.

The idea or ideal underlying the European Convention on Human Rights is that the invididual should be protected vis-à-vis the State. The protection afforded to freedom of expression by Article 10 (art. 10) of our Convention clearly has this aim. The Lingens judgment shows that very harsh words expressed in the context of political debate enjoy this protection. However, as is stated at the beginning of paragraph 2 of this Article (art. 10-2), the exercise of this freedom "carries with it duties and responsibilities". In this context one often has to keep in mind Article 8 (art. 8) of the Convention, concerning the right to respect for private life, as well as what is said in paragraph 2 of Article 10 (art. 10-2) on the protection of the reputation or rights of others. The two principles enshrined in Articles 8 and 10 (art. 8, art. 10) must both be respected in every democratic society worthy of that name. In our time and our part of the world, the application of rules intended to protect these principles is marked by the power of the media and the inability of the individual to protect his reputation. Legal rules have frequently proved not to be an effective tool in this respect, but this fact - as I consider it to be - should not influence our Court when it applies the Convention. The Austrian legislation described in paragraphs 25-33 of the judgment is an example of a set of rules enacted by a member State in order to meet the obligations flowing from Article 8 (art. 8) of our Convention.

The present case should be decided by an interpretation of Article 10 (art. 10) which takes into account the principle enshrined in Article 8 (art. 8). I am not of the opinion that the decisive question is whether or not a value-judgment is involved. Neither do I agree with the majority when it says that it regards "the latter part of the information only as a value-judgment".

The applicant had, of course, a right to voice strong disagreement with the statements of Mr Grabher-Meyer, as reported in a television programme on 29 March 1983 . This he could do without breaching Austrian law. He chose, however, to print in full a "criminal information" - a kind of private criminal summons - laid by himself and others, in which Mr Grabher-Meyer was said to be suspected of contravening three provisions of Austrian penal law. The criminal-law setting thus given to his criticism took it out of the sphere of mere political debate and carried it into the arena of personal attack, thereby impinging on private life. The contents of the document printed were also, in my opinion, characterised by exaggerations. Here I have especially in mind the strong words to the effect that the statement corresponded to the aims of the Nazis or extolled measures applied by them. These very same words found in the text published by the applicant also, it seems to me, fall outside the ambit of value-judgments. The programme and the acts of the Nazis constitute a set of facts and the statement is another fact. Whether or not that statement reflected that programme and those acts is a question of factual assessment and my own conclusion is that it did not. The applicant, in my opinion, transgressed the limits of freedom of expression and violated the rules on respect for the reputation of the person concerned that are necessary in a democratic society.

As in other cases, I have voted on Article 50 (art. 50) on the basis of the findings of the majority.

PARTLY DISSENTING OPINION OF JUDGE MATSCHER, APPROVED BY JUDGE BINDSCHEDLER-ROBERT

(Translation)

1. I do not oppose the somewhat lenient decision to treat the present application as having been introduced within the six-month time-limit for the purposes of Article 26 (art. 26).

In my view, Rule 38 para. 3 of the Commission ’ s Rules of Procedure should be construed as meaning that the date which the application bears can be decisive only where the person concerned is in a position to prove that he did in fact despatch the application on that date.

It is inconceivable that a lawyer who submits an application on the last day before the expiry of a time-limit should not do so by registered letter, in order to be able to prove, should it be necessary, that the time-limit in question has been complied with.

It is equally incomprehensible that the Commission should not have kept in its file the envelope, which would also have made it possible to verify by the postmark the date on which the application in question was in fact despatched.

2. I fully endorse the reasoning in the Lingens judgment (Series A no. 103, p. 26, para. 42), reiterated in the present judgment, to the effect that the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual.

Criticism of political conduct may be expressed in press articles, in other publications or through other media, or again in a political debate. If the applicant, as a journalist, had had recourse to one of these means, criticism, even if it were harsh and bitter - but not going beyond the limits of decency -, would have been acceptable and his conviction for such criticism would indeed have constituted an interference with his freedom of expression which would not be covered by paragraph 2 of Article 10 (art. 10-2).

However, in the present case, the applicant did not engage in criticism of this type. He chose to proceed by another means, namely to lodge with the competent authority, and the very day on which his review appeared, a criminal information against X. - in which he accused the person in question of very serious crimes - and to reproduce this information in that review, thereby giving the impression, at least to the average reader, that criminal proceedings had actually been instituted against X. This is a very important aspect of the case to which, regrettably, the majority of the Court has not thought right to accord the weight which in my view it merited.

In so acting, the applicant did not confine himself to permissible criticism, but perpetrated a treacherous attack on the reputation of a politician. Thus he did not respect the "duties and responsibilities" which freedom of expression carries with it; his conviction cannot therefore be regarded as a measure which was unnecessary and disproportionate for the purposes of this provision.

The majority of the Court also found a violation in the fact that the Austrian court had supposedly required Mr Oberschlick to prove his accusations, proof which the majority regarded as impossible to establish since the criminal information constituted a value-judgment. I am, on the other hand, of the opinion that this information was merely an affirmation of certain facts - moreover an unfounded affirmation -, facts which in themselves were susceptible to proof. The Austrian court ’ s judgment did not therefore infringe freedom of expression by regarding them as such.