CONCURRING OPINION OF JUDGE JEBENS

I agree with the majority that the conclusions of the proceedings against the newspaper and its editor amounted to interferences with the right to freedom of expression that violated Article 10 of the Convention. However, I cannot join the majority ’ s reasoning regarding the Article 10 issue. That reasoning is to a large extent based on a characterization of the impugned sentence as partly a value judgment, which is not susceptible of proof.

The article, “Sacrifice of the decent”, which was published by the second applicant in the 9 October 1998 issue of “der Standard”, critizes the culture within the FPÖ party, and especially its leader, Mr Jörg Haider . The latter is presented as a rather cynical person in his relations with party colleagues, by references to his behaviour and attitude towards them. I agree that these negative assertions of Mr Haider are value judgments.

The impugned sentence, however, does in my opinion not contain a value judgment, but a factual statement. By claiming that “(a) fter all, Haider was convicted in criminal proceedings at the first instance because he had ruined a person ’ s good reputation and prospects of the future”, the article brings concrete factual information. Reading the sentence in its context it transpires that the purpose with this is to convince the readers about the correctness of the negative characterizations elsewhere in the article. This classification of the impugned sentence covers in my opinion the whole of it, because it gives the impression that Mr Haider was convicted of actually having ruined another person ’ s reputation and future. By interpreting the impugned sentence as a value judgment, and consequently not requiring proof of its veracity, the reputation of others would, in my opinion, not be sufficiently protected.

The above referred statement in the 9 October 1998 issue of “der Standard” was correct, insofar as Mr Haider had been convicted in defamation proceedings at the first instance. Mr Haider was, however, only convicted of attempted defamation. The allegation that he had been convicted of having ruined a person ’ s good reputation and prospects of the future was therefore incorrect.

It is, however, not necessary for me to go further into the questions that thereby arise. The reason is that the difference between the allegation in “der Standard” and the actual conviction of Mr Haider was in my opinion small and must have been of little relevance for its impact on the reader of the article (see, mutatis mutandis , Bergens Tidende and Others v. Norway , no. 26132/95, §§ 54-56, ECHR 2000 ‑ IV). Because of this, I agree with the majority that the interference by the Austrian courts with the applicants ’ right to freedom of expression was not necessary in a democratic society, and thus in breach of Article 10.

The refusal by the national courts to admit evidence as to the truth of the allegation covers in my opinion the procedural aspect of the case. I therefore agree that there is no need to examine separately the complaint under Article 6.

Partly dissenting opinion of Judges Rozakis, Tulkens and Spielmann

While we agreed with the other members of the Court that in the circumstances of the case there has been a violation of Article 10 of the Convention, we are unable to follow them when they consider that the complaint of the applicants under Article 6 of the Convention is absorbed by the complaints under Article 10, and, therefore, there is no need to examine it separately.

We consider that although the applicants raised the issue of the refusal of the domestic courts to hear a number of witnesses both as an aspect of their complaint under Article 10, and, separately, as a complaint under Article 6, their reference to the refusal of the courts to hear witnesses with regard to their complaint concerning freedom of expression merely supported the main argument of the applicants that the domestic courts did not proceed to a proper assessment of the interests involved in the case, namely the interest of the applicants to express themselves freely vis-à-vis the interest of Mr Haider . It is this reading of that part of the complaint under Article 10, which led the Chamber to its decision not to take up the issue, and not to answer the applicants ’ assertion (see paragraph 50 of the judgment). Under Article 6, on the other hand, the applicants raised the same issue, but this time, from a purely procedural angle ; namely that they were not given the opportunity to produce evidence before a court of law, and to examine witnesses who, according to the applicants, were important for the proper establishment of the facts of the case.

For these reasons, we believe that the complaint under Article 6 had to be examined separately, as a distinct complaint which deserved an answer by the Court.