PARTLY DISSENTING OPINION OF JUDGE CASADEVALL, JOINED BY JUDGE JUNGWIERT

( Translation )

1. I agree that the Government's preliminary objection should be dismissed, but I am unable to concur with the majority as to the merits.

2. The freedom of expression enshrined in Article 10, one of the fundamental pillars of a democratic society, justifies circumscribing the States' margin of appreciation more narrowly. It follows that the exceptions laid down in Article 10, such as “national security” or “maintaining the authority and impartiality of the judiciary”, are justified – in my opinion – only in particularly serious situations.

3. I accept that the interference had a legal basis in domestic law and that it pursued a legitimate aim. I do not, on the other hand, see that it was necessary.

4. I even doubt whether section 23 of the Media Act (see paragraph 23 of the judgment) is compatible with the Convention. Not only is it drafted in such broad terms that it would make it possible to restrict any comment on pending criminal cases as “capable of influencing the outcome of criminal proceedings”, but in the instant case it was also interpreted in an abstract manner (see paragraph 17 of the judgment) – an approach which was, in my view, open to criticism.

5. While it is possible to understand that in some fields (public health, traffic) public-order requirements dictate that penalties may be imposed without it being necessary to prove that there is a real risk of any kind, this should not be so where the penalty entails restriction of one of the fundamental rights, in this instance the right to freedom of expression.

6. For such restrictions to be justified for the purposes of the Convention, it appears to me essential that it should be shown that the information and ideas in issue might pose a real, substantial risk – not merely a hypothetical one – to “national security”, “the disclosure of information received in confidence” or “the authority and impartiality of the judiciary”. The Vienna Court of Appeal considered that such an assessment of the risk was not necessary for the offence in section 23 of the Media Act to be made out (see paragraph 17 of the judgment).

7. For want of evidence allowing me to conclude that the statutory provision is invariably applied as it was in the instant case, I prefer to say that the reasons adduced by the Vienna Court of Appeal were not “sufficient” in relation to the legitimate aim pursued.

8. Admittedly, the majority stated – and I concur in their view – that in seeking to maintain “the authority and impartiality of the judiciary, the Contracting States are entitled to take account of considerations going – beyond the concrete case – to the protection of the fundamental role of courts in a democratic society” (see paragraph 40 of the judgment). For this reason, in the opinion of the majority, the fact that domestic law “did not require an actual result of influence on the particular proceedings to be proved does not detract from the justification for the interference”.

9. In other words, the interference in issue was justified not on the basis that it was “capable of influencing the outcome of the proceedings” concerning Mr Androsch (a question of impartiality) but rather because it offended the principle that “the courts are the proper forum for the settlement of legal disputes” (a question of authority). I do not find this approach any more convincing.

10. It does not convince me, firstly, because the same requirement of an assessment of the danger at which the interference was directed should apply where the aim is to provide general protection for the authority or impartiality of the judiciary and, secondly, because that approach can only, in my view, be regarded as an ex post facto justification for the interference in issue.

11. It is clear from a reading of the Vienna Court of Appeal's judgment that only the question of the impartiality of the court that had tried Mr Androsch was at issue. To claim that by means of a single clause (“it can be inferred from the article that [the applicant] wished to usurp the position of the judges dealing with the case”) the Vienna Court of Appeal intended to ensure the “acceptance of the courts as the proper forum for the determination of a person’s guilt or innocence on a criminal charge” with the aim of preventing the “spectacle of pseudo-trials in the news media” (see paragraph 54 of the judgment) seems to me to be at the very least artificial.

12. The national authorities have not therefore adduced sufficient reasons to persuade me that the applicant's words in his article were such as to create a need for interference tantamount to a “pressing social need” (see the Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, pp. 28–29, § 50) when weighed against a journalist's right to freedom of expression and the public's right to information and ideas, even those “that offend, shock or disturb the State” (see the Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria judgment of 19 December 1994, Series A no. 302, p. 17, § 36).

13. I therefore consider that there has been a violation of Article 10 of the Convention.

[1] 1. This summary by the registry does not bind the Court.

[2] Notes by the Registrar

1. The case is numbered 83/1996/702/894. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] 2. Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[4] 1. Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission's report is obtainable from the registry.