DISSENTING OPINION OF JUDGE GREVE

In the present case I have found a violation of Article 10.  Unlike the majority, I do not find the interference with Mr Wabl’s freedom of expression necessary in a democratic society.

The newspaper “Neue Kronen-Zeitung - Steirerkrone” also referred to as the “Kronen Zeitung” - by far the most read newspaper in Austria - headlined an article printed on 14 August 1988 “Police Officer claims: AIDS test for Wabl”.  On the front page the article was announced as follows:

“Green politician Wabl should have an AIDS test.

The Police Officer Walter Fellner from Aflenz asks Green member of Parliament

Andreas Wabl to undergo an AIDS-test.  Wabl scratched Fellner and drew blood              in the course of an altercation (pages 8/9).”

Three days later a rectification was published in the newspaper and a statement by Mr Wabl himself.  The rectification was headlined “Defamation of Green politician not intended/hygiene expert Möse reassures:  ‘No AIDS-infection from scratches’”.  On this same day, at a press conference where Mr Wabl commented on the articles, he was asked by a journalist how he felt about it and replied “This is Nazi-journalism.”  The company publishing the “Kronen Zeitung” was convicted for defaming Mr Wabl and ordered to pay him compensation.

Following separate proceedings - contrary to the findings of the Graz Regional Civil Court and the Graz Court of Appeal - the Austrian Supreme Court issued an injunction against Mr Wabl prohibiting him from repeating the statement that the article of 14 August 1988 amounted to “Nazi-journalism”, and similar statements.  According to the Supreme Court the statement was an answer to a question put by a journalist, related only to the particular article of 14 August 1988, and was a value-judgement.  In the course of the proceedings, the Graz Court of Appeal had relied on expert opinion according to which the defamation of political opponents with an alleged illness was an essential element of the journalism of the Nazi regime.  The Supreme Court noted that Mr Wabl’s statement was a reaction to an article published by the plaintiff which contained the assumption that Mr Wabl was suffering from the immune deficiency syndrome, a contagious disease, which provokes fear and antipathy amongst the majority of the population.  However, the Supreme Court argued that Mr Wabl’s reproach came close to a charge against the publisher of criminal behaviour under the National Socialism Prohibition Act.  The publisher, according to the Supreme Court, had a clear interest not to be associated with National Socialism.  On balance, the Supreme Court concluded that Mr Wabl’s interests did not outweigh the publisher’s.

The main issue to be resolved by this Court is whether the interference with Mr Wabl’s right to freedom of expression under Article 10 § 1 of the Convention was justified under the second paragraph of this Article as “being necessary in a democratic society”.

According to the Court’s well-established case-law, the test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see the Sunday Times (no. 1) v. the United Kingdom judgment of 26 April 1979, Series A no. 30, p. 38, § 62). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10.

Generally speaking, a democratic society presupposes a measure of tolerance and broadmindedness.  For this reason, and as a matter of fairness, I agree with the findings of the six dissenting members of the Commission, that a democratically elected politician such as Mr Wabl, with a mandate to fulfil, who became the target of a public defamatory attack, should not be prohibited from defending himself in the way he did.  A democratic political debate requires that where a politician is attacked, not for his political views but on a purely personal level, he should not be in a more disadvantageous position than the press, and that he should be allowed sufficient latitude to reply to press attacks.

Furthermore, Nazism is known and identified with the ideology and practices of the German “Third Rich” and its associates.  Nazism is in essence political although criminalised for its extreme victimisation.  The combat against Nazism can never be only legal, primarily it is a political “battle”.  The recourse that individuals have to courts - here in Austria - cannot but be a fallback position, especially when the political fight against Nazism and its different methods and manifestations fail or the individuals affected are at a disadvantage in terms of political clout for political confrontation.  I find it necessary in and for a democratic society to permit and encourage a political discourse to prevent the recurrence of Nazism, even if certain statements may be emotional value-judgements.  This is the context in which I consider Mr Wabl’s declaration.  He had participated in a demonstration against the stationing of interceptor fighter planes near the Graz airport when in the course of a police action a police officer charged him with having scratched his right arm.  Where there is blood and infectious diseases can be spread by blood, someone afraid of catching a particular disease may always want a blood-test.  This, however, is a general issue with no special relevance when politician A sees his dentist, politician B is giving birth, etc.  There was absolutely no particular reason in the present case to associate the politician Mr Wabl with the need for an AIDS-test.  This could only be defamatory, and the publisher was convicted for defamation.  There was furthermore expert advice in Austria to the effect that the defamation of political opponents with an alleged illness was an essential element of the journalism of the Nazi regime.

Under these circumstances I do not find the restriction imposed on the applicant reconcilable with freedom of expression as protected by Article 10 of the Convention.