DISSENTING OPINION OF JUDGE MATSCHER, JOINED BY JUDGE THÓR VILHJÁLMSSON

(Translation)

I cannot concur in either the reasoning of the majority of the Chamber or the conclusion they have reached. They have ignored the fundamental distinction between a criticism or value judgment on the one hand, and an insult on the other; the first two are covered by the freedom of expression secured in Article 10 of the Convention (art. 10), whereas an insult is not.

Mr Oberschlick and Forum were at liberty to criticise severely Mr Haider’s remarks in his speech at the traditional ex-servicemen’s reunion at the Ulrichsberg in Carinthia on 7 October 1990. Moreover, what Mr Haider said on that occasion was in substance what speakers usually say at such meetings in all the European countries where there is a military tradition.

Mr Oberschlick did not, however, simply criticise; he went further, uttering vulgar insults aimed at Mr Haider, calling him a Trottel (idiot). Despite an ingenious attempt to present things differently, the average reader must have understood Mr Oberschlick’s words as an insult intended to ridicule Mr Haider.

The context in which an insult is uttered is of no consequence, except where it is held to be an immediate reaction to a provocation or affront (this is the idea underlying Article 115 para. 3 of the Austrian Criminal Code). That was not the case here. What Mr Haider had said became public knowledge at the latest on the day after the reunion of 7 October 1990 and Mr Oberschlick did not publish the article in question until March 1991, in other words five months after the event.

We may wonder if it was wise for a politician to lodge a complaint about an insult of this kind. If, however, the person concerned (whether a politician or an ordinary citizen) feels offended, he has the right to do so. Accordingly, the Austrian courts had to find Mr Oberschlick guilty, given that the offence of insult as defined in Article 115 para. 1 of the Austrian Criminal Code had been made out. Moreover, the fine imposed on Mr Oberschlick (ATS 1,000) was a small one, not to say a nominal one.

Looked at from this point of view, the arguments set out in paragraph 33 of the judgment are not valid, as they apply only to value judgments, and an insult can never be a value judgment.

Lastly, the purpose of Article 10 of the Convention (art. 10), in my opinion, is to allow a real exchange of ideas, not to protect primitive, fourth ‑ rate journalism which, not having the qualities required to present serious arguments, has recourse to provocation and gratuitous insults to attract potential readers, without making any contribution to an exchange of ideas worthy of the name.

[1] The case is numbered 47/1996/666/852. 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.

[2] Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9).

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