DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I wish to express my agreement with Mr Martens ’ s dissenting opinion.

I would cite in addition the following points as reasons for my opinion.

Journalistic investigation of the functioning of the system of justice is indispensable in ensuring verification of the protection of the rights of individuals in a democratic society. It represents the extension of the rule that proceedings must be public, an essential feature of the fair trial principle.

Judges, whose status carries with it immunity and who in most member States are shielded from civil litigation, must in return accept exposure to unrestricted criticism where it is made in good faith.

This is the trend internationally.

The situation in America is that judges holding office as elected members of the judiciary are subject to wholly unrestricted criticism. The American Bar Association journal publishes 250,000 copies of a table dealing with judges ’ conduct and the criticism is sometimes severe.

Clearly judges must be protected from defamation, but if they wish to institute proceedings it is preferable for them to opt for the civil avenue rather than criminal proceedings. States that allow judicial proceedings to be televised accept by implication that the judge ’ s conduct is exposed to the critical view of the public. The best way of ensuring that objective information is imparted to the public for its education is to secure fuller and franker co-operation between the judicial authorities and the press.

DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGES PEKKANEN AND MAKARCZYK

1.   There is only one point of disagreement between me and the majority of the Court. Since its Barthold judgment [4] the Court has consistently held that, in view of the importance of the rights and freedoms guaranteed in paragraph 1 of Article 10 (art. 10-1), the Court ’ s supervision must be strict, which means inter alia that the necessity for restricting them must be convincingly established [5] . Although the wording used by the maj ority may give rise to doubt [6] , it must be assumed that they did not wish to depart from this doctrine and that they are therefore of the opinion that it has been established convincingly that the impugned interference with the applicants ’ right to freedom of expression was "necessary in a democratic society". For the reasons set out below I have - eventually - come to the conclusion that I am unable to share that opinion.

2.   "Eventually", for I must confess that a first re ading of Mr Prager ’ s article [7] left me with a rather unfavourable impression. This was, I felt, a case of a self-conscious, perhaps even self-righteous journalist, clearly without legal education or experience and, as clearly, with a strong bias against criminal justice, who was nevertheless convinced that he was entitled to publish a caustic article on the subject, pillorying nine judges. A journalist, moreover, who consistently preferred stylistic effects - and especially malicious effect s - to clarity and moderation.

Such first, rather strong, negative impressions are dangerous for a judge. He must be conscious of them and remain vigilant against the bias they tend to create. One wonders whether the Austrian judges did so.

3.   A second reading obliged me, however, to reappraise my first impressions. It convinced me that Mr Prager , after his curiosity had been aroused by academic literature, not only spent a lot of time and energy in verifying on the spot the reasons for the phenomena described by sociologists, but was honestly shocked by what he found.

The sociologists had noticed marked differences between the way criminal justice was dispensed within the jurisdiction of the Vienna Court of Appeal compared with the rest of Austria . Within the Vienna jurisdiction detention on remand was much more readily ordered and for much longer periods than elsewhere and sentences were nearly twice as severe [8] .

Mr Prager went to the Vienna Regional Criminal Court to see whether he could find an explanation for these differences. After six months ’ personal fact finding [9] he evidently became convinced that, as far as that court was concerned, the explanation was to be found both in the personalities of the judges who formed that court and in their esprit de corps.

As his article shows, he was not only shocked but filled to the brim with sincere indignation. There can be no doubt about that. However, before venting his feelings he thought things over, trying to explain what he had seen by reference to some specific features of the Austrian system of criminal justice. This is done in the introductory part of his article. There Mr Prager draws attention to the terrible power of a criminal judge and, against that background, to the dangers of his holding office for years, without being subject to any real supervision. Power corrupts, he suggests, also in criminal courts. Outside scrutiny is, therefore, indispensable. He certainly has a point there and it is a point that should be taken into account [10] . On the other hand, when Lord Denning said that judges from the nature of their position cannot reply to criticism, he too made a point that has, to a cert ain extent, to be borne in mind [11] .

4.   Before I take my analysis of the impugned article further, it is worth recalling that Judge J., one of the judges criticised, felt that Mr Prager ’ s article was defamatory and started a private prosecution under Article 111 o f the Austrian Criminal Code [12] . No doubt some of the passages specifi cally referring to Judge J. [13] were indeed - objectively - defamatory. Under the Convention, however, Mr Prager could only have been convicted and sentenced for defamation if the national courts, having properly construed and assessed the impugned article as a whole, on balancing the demands of protection of free speech against those of the protection of the reputation of others, found that the latter carried greater weight in the circumstances of this case. The Court ’ s review is not restricted to the second part of their findings: in cases where freedom of expression is at stake, the Court

"will look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient".

In other words: what the Court had to do was to scrutinise the persuasiveness of the reasons given for Mr Prager ’ s conviction and sentence.

"In doing so the Court has to satisfy itself that the national authorities did apply standards which were in conformity with the principles embodied in Article 10 (art. 10) and, moreover, that they based themselves on an acceptable assess ment of the relevant facts" [14] .

Striking a fair balance between the right to freedom of expression and the need to protect the reputation of others is, obviously, only feasible when what has been expressed has been properly construed and assessed within its context. Consequently, in order to fulfil its task as the ultimate guarantor of the right to freedom of expression, the European Court of Human Rights cannot confine itself to reviewing the national courts ’ balancing exercise, but must necessarily also - and firstly - examine their interpretation and assessment of the statements in question. Only this double check enables the Court to satisfy itself that the right to freedom of expression ha s not been unduly curtailed [15] .

5.   I resume my analysis of the impugned article. After the aforementioned "theoretical" introduction (see paragraph 3 above) it relates and comments on Mr Prager ’ s experiences during his three and a half months ’ personal fact finding at the Regional Court (the subtitle of his article is: " Lokalaugenschein ", i.e. report of a visit of the locus in quo). The evident purpose of this (second) "chapter" is to illustrate the assertions made in the introduction and to convey his indignation to his readers.

This (second) "chapter" again starts with something like an introduction (general information; what he has heard beforehand from more than a dozen barristers and court reporters; some general impressions of the atmosphere at the court and of his first contacts with some of the judges; some derisive speculations on the proper degree of auto-censorship for a young reporter writing on the judiciary).

There follow nine more or less extensive "portraits" of judges. Each portrait is preceded by a specific heading, which not only summarises the kind of cases the judge (or judges) in question try, but also assigns each judge a "type". These nine portraits, including the labelling of the judges under the heading "type", are evidently intended to epitomise Mr Prager ’ s criticism of the way criminal justice is dispensed by the Vienna Regional Court and to enhance its persuasiveness by giving that criticism names and faces.

6.   It is, of course, a question of taste, but in my opinion some of the portraits of the other judges are more virulent than that of Judge J. Apparently, the Eisenstadt Regional Court judge thought so too. She even said in her judgment that all the judges who were criticised and who were identified by name could have brought an action for defamation. That may be true, but the fact is that they did not. That does not prove, of course, that their portraits were drawn correctly. Nevertheless, it is a factor that has to a certain extent to be taken into account when assessing the context of the impugned passages devoted to Judge J. For at least it has not been proved that the other portrayals were devoid of reality, nor, consequently, that the overall picture of the atmosphere at the court was wholly wrong.

7.   Not only did the other judges not go to court, but before us the Government did not even argue, let alone prove, that Mr Prager ’ s general proposition - namely that in Vienna, criminal justice at first instance is not only very severe, but unduly harsh - had no factual basis.

Consequently, Mr Prager ’ s portrayal of Judge J. must be assessed against the background of Judge J. being a member of a criminal court which by its decisions and by its behaviour towards accused and their lawyers - in sum by its esprit de corps - at least justified public scrutiny by the press. Mr Prager ’ s article must be regarded as concerning matters of considerable public interest. It was therefore fittingly published in a magazine (Forum) which was described to us as "a publication dedicated to promoting democratic principles, the rule of law and the interests of indigents" (memorial of the applicants) and "a typical magazine for intellectuals" (" ein typisches Blatt der intellektuellen Szene ") (oral argument). Neither description was disputed by the Government.

Let me say at once that one will look in vain for such an assessment in the judgments of the Austrian courts: nowhere do they make it clear that they weighed up Judge J. ’ s right to protection of reputation against Mr Prager ’ s (and Forum ’ s) right under Article 10 (art. 10) to write as critically as he thought fit on a subject of considerable public interest!

8.   The above analysis of Mr Prager ’ s article (see paragraphs 3 and 5 above), the fact that it was published in a serious magazine for intellectual readers (see paragraph 7 above) - that is for readers who can judge for themselves - and the circumstance that it concerned a matter of considerable public concern - in the author ’ s view a scandalous way of dispensing criminal justice -, all this must be taken into account not only when finally deciding the necessity issue, but already when interpreting the text of the five specific and isolated passages in the article to which Judge J. restricted his private prosecution (see paragraph 4 above: "in the light of the case as a whole").

9.   Against this background there is much to be said for the proposition that all these passages - except the fifth - should be classified as value-judgments.

It is obvious - and was acknowledged by the Eisenstadt judge - that the fourth passage, that is the result of attributing a "type" to the judge concerned, is a value-judgment. This is especially true, since Mr Prager more than once attributed the same type to several judges. Thus he considered Judge J. to be a species of the type: "rabid", like one of his colleagues, Judge A.

As far as the first two passages are concerned, I note that they do not belong to the body of the article itself, but form part of a kind of a summary, which together with the title ("Danger! Harsh judges!") and the subtitle ("Report of a visit of the locus in quo") is placed in a frame [16] . This is evidently meant - and indeed serves - as an eye-catcher. At any event, as part of this summary, the sentences in question clearly express the gist of Mr Prager ’ s censure of the criminal court as such and find their main justification in that (collective) censure.

Under these circumstances it seems at least questionable whether it is acceptable to scrutinise these obviously generalising sentences exactly as if they formed part of (the body of) an article devoted to Judge J. only. But that is precisely what the Austrian courts did, without even bothering to give reasons for their approach [17] .

Similar considerations apply as far as the third "passage" is concerned. This passage is a remark made within the context of the introductory part of the second "chapter" (see paragraph 5 above). It is not easy to grasp the exact meaning of the section of which it forms a part. In my opinion the most plausible reading is that this section somehow continues the above-mentioned derisive speculations on the proper degree of auto-censorship (see paragraph 5). According to this interpretation, the remark means that Judge J. ’ s behaviour is too intolerable not to be denounced. That behaviour is then characterised as " menschenverachtende Schikane " which is ra ther difficult to translate [18] , but is at any rate rather denigrating. A note in the text, however, makes it clear that the characterisation is intended as a summary of the detailed portrait which follows. As such it is, undoubtedly, a value-judgment. Moreover, if one considers it in the context of the article as a whole, it seems rather doubtful (to put it mildly) whether it is correct to assume - as the judge in the Eisenstadt Regional Court did - that " Schikane " means that Judge J. uses his function in order to harm the accused intentionally. It is true that, according to dictionaries, the word " Schikane " may have that connotation, but I think that in the context of the portrayal of the criminal court and the article as a whole it must rather be understood - and, at least, can reasonably be understood - as describing a very severe application of criminal law, regardless of the resulting human suffering. Here, as when construing the other passages, the Eisenstadt judge chose from two possible interpretations the one which was unfavourable to the accused and led to conviction, without even bothering to make it clear that she had considered the other interpretation or to state her reasons for rejecting it.

I stress this feature of her judgment since on this point I wholeheartedly agree with the German Constitutional Court . According to the established case-law of that court, a judge who convicts a speaker or author whose utterance is objectively open to different interpretations, without giving convincing reasons for choosing the very interpretation which leads to conviction, violates the right to freedom of expression.

10. The Austrian courts [19] opted for an essentially different approach. They strictly limited their examination to the five specific and isolated passages targeted by Jud ge J. ’ s private prosecution [20] . It goes without saying that this fundamental difference of approach makes itself felt throughout. The Eisenstadt judge for instance refused even to consider the (undisputed) fact that Judge J. had once warned a defence lawyer to "keep it short" since he "had already reached his decision". Of course, that fact does not prove a "general bias", nor that Judge J. treated every accused at the outset as if he had already been convicted, but it could at least show that Judge J. also displayed the esprit de corps which Mr Prager had observed during his fact finding and, consequently, that there was some basis for his being included in the portrait gallery.

11. This example appears to fit a pattern. One finds it repeated when one studies how the Eisenstadt judge reacted to Mr Prager ’ s offer to adduce proof of the factual basis for his value-judgments. The judge first adopts - without giving proper reasons - the interpretation of the value-judgments in question which is most unfavourable to the defendant and then goes on to say that his offer is to be refused on the ground that it is clear straight away that it will be impossible to convince the court that Judge J. acted as he did with maliciou s intent to cause suffering [21] .

The portrait of Judge J. [22] devotes rather a lot of attention to an affair where Judge J. obstinately - and unnecessarily - prolonged detention on remand and, moreover, did not forward a plea of nullity against his detention decision to the proper authorities. Judge J. did not chose to include this passage in his private prosecution, but it became relevant when Mr Prager contended that this very episode was at the root of his value-judgment " menschenverachtende Schikane " (see paragraph 9 above) and therefore wanted to prove it. His offer was refused by the Eisenstadt judge on the ground that she felt it to be completely unbelievable that Judge J. would have consciously and maliciously wanted to prolong the detention.

12. I allow myself one more example of the same mechanism, this time with regard to the fifth passage selected by Judge J. This passage undoubtedly contains a statement of fact(s). One must, of course, first ascertain which facts. That would seem rather clear. Mr Prager states that - apparently some time ago - Judge J. was almost appointed a public prosecutor, but suggests that he had not obtained the post in question because his name had again [23] been mentioned in the press, inter alia in connection with the suspicion of involve ment in dishonest practices [24] . It was not denied that there had been such articles in the press nor that these articles had voiced this particular suspicion concerning Judge J. Nevertheless, the Eisenstadt judge - again without considering whether any other interpretation was possible - read into the passage the statement that such suspicions still existed at the time of publication of the impugned article. However, she goes on to say, there was a decision of the Vienna Court of Appeal some years back in which Judge J. was cleared of all suspicion in this respect. She might have explained how Mr Prager could have known about that decision. But that is not the point I am trying to make. What is important is that here again we see the same pattern observed in paragraphs 10 and 11 above: first a non-reasoned interpretation which is (to put it mildly) not the most obvious but certainly the most unfavourable and then, on that basis, a refusal of Mr Prager ’ s offer to prove the exceptio veritatis .

13. It might perhaps be queried whether or to what extent placing the burden of proof in cases like this on the journalist is compatibl e with Article 10 (art. 10) [25] , but since this question has not been argued, I leave it open. What should be stressed, however, is that the judgment of the Court of Appeal makes it clear that Austrian law is unduly exacting in respect of an offer of proof of the exceptio veritatis . The accused has to indicate exactly which facts he wants to prove. Moreover, he must not only explain precisely why these facts justify what he has said or written, and how these facts may be proved by the evidence offered, but he must in addition convince the court, beforehand, that there is a likelihood that these facts will be proved.

14. Not only (with one exception) was Mr Prager not allowed to adduce the evidence he had offered in respect of the facts on which his value-judgments were based, he was also held not to have acted with due journalistic care.

That reproach is not unfounded to the extent that it is common ground that Mr Prager did not give Judge J. an opportunity to comment on the draft of the article. That indeed was a serious f ailure to exercise due care [26] , whether or not - and that is a matter for speculation - Judge J. would have used the opportunity to make relevant comments.

However, serious as this lack of care may be, it does not - in itself - justify the stricture of "glaring carelessness" which the Eisenstadt judge levelled at Mr Prager . It is true that she grounds this stricture on two additional arguments, but these are both flawed since they are based on the one-sided approach which has been analysed in the preceding paragraphs. The Eisenstadt judge disregarded the article as a whole and, moreover, treated the two isolated sentences from the summary referred to in paragraph 9 above as if they formed part of (the body of) an article devoted to Judge J. only.

The article as a whole makes it sufficiently clear that it is based on personal observations over a considerable period as well as on the questioning of such witnesses as could reasonably be regarded as having professional experience of this particular court and its members, such as criminal lawyers, court reporters and probation officers. The Eisenstadt judge suggests that such questioning only yields hearsay evidence which is suspect, but in my opinion the methods used by Mr Prager cannot per se be held to fall short of the standard of proper journalistic care.

The argument that Mr Prager had, by his own account, not visited a trial presided over by Judge J. is unconvincing since - unless one misconstrues the summary as statements of fact about Judge J. - Mr Prager ’ s article nowhere criticises Judge J. ’ s way of presiding. Perhaps there is one exception, the anecdote about the admonition to keep it short (see paragraph 10 above), but I do not think that a journalist would be lacking in due care if he published that story on the hearsay evidence of the very lawyer thus addressed from the bench, particularly as it fitted perfectly the esprit de corps which he had himself observed and had been told about by numerous other witnesses.

15. This brings me to a further crucial criticism. The Eisenstadt judge found that it was "evident" that Mr Prager had acted with the (malicious) intent to defame Judge J. She even went so far as to describe Mr Prager ’ s malicious intent as "intensive". Her only reasons are, however, that Mr Prager is better educated than the average and, moreover, an experienced reporter. Consequently, she goes on to say, Mr Prager must have realised that the five passages concerning Judge J. were very negative and would affect him accordingly.

Now, in my opinion this is a test that cannot be accepted. I will not deny that there are instances where the mere wording of an observation concerning a named person is sufficient to warrant the conclusion that it must have been made with malicious intent to defame. But it is incompatible with the right to freedom of expression to draw such an inference from the mere wording of five isolated passages of a long article in a serious magazine on a subject of general public interest. Quite apart from the one-sided interpretation of these five passages on which the impugned conclusion is based, it simply cannot be accepted that the mere wording of a critical comment on a subject of general public interest suffices for that comment to be classified as being made with malicious intent to defame. That would mean that the courts would totally disregard the author ’ s purpose of initiating a public discussion; that would mean that, de facto, only the interests of the plaintiff would be taken into consideration and would curb freedom of expression to an intolerable degree. I recall that "Article 10 (art. 10) protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed" [27] . For these reasons I think that at least where a critical comment on a subject of general interest is involved, even very exaggerated terms and caustic descriptions do not per se justify the conclusion that there was malicious intent to defame.

The decisive test should be whether the impugned wording, however impudent, curt or uncouth, may still be found to derive from an honest opinion on the subject - however excessive or contemptible that wording may seem - or whether the only possible conclusion is that the intention was only or mainly to insult a person.

Here again I find that the Austrian courts applied standards which are not in conformity with the principles embodied in Article 10 (art. 10) and here again I (at least) question whether, if they had applied the correct test, they would not have come to a different conclusion. As I have already indicated, I am persuaded that Mr Prager was honestly shocked by his experiences within the Vienna Regional Court . Not only shocked, but brimming over with sincere indignation, not to say wrath. He fully realised that he had expressed that wrath in unusually strong terms, but in his ire he felt that the only thing that mattered was to drive home his message, regardless of the feelings of the nine judges whom he had targeted. In his view th ey did not deserve leniency [28] . That attitude may be morally and perhaps even legally reprehensible; in my opinion it does not amount to malicious intent.

16. I would sum up as follows:

(a) The Austrian courts only took into account five specific and isolated passages, ignoring their context. The Government have argued that they could not proceed otherwise since under Austrian criminal law they were bound by the terms of the private prosecution. I do not find that argument convincing: since Article 10 (art. 10) of the Convention requires that the context should be taken into account and since in Austria the Convention has the s ame rank as constitutional law [29] , the Austrian courts should have disregarded those provisions of criminal procedure which made it impossible to consider the journalist ’ s article as a whole

(b) The Austrian courts interpreted these five passages very one-sidedly and at any event did not give reasons for choosing not to adopt other possible and more favourable interpretations.

(c) This one-sided interpretation and the unduly severe Austrian rules on the possibility of adducing proof of the exceptio veritatis resulted in Mr Prager being to all practical purposes preclud ed from adducing such proof [30] .

(d) The above defects also affected the Eisenstadt court ’ s decision on the due journalistic care issue; moreover, the test applied in deciding that issue is partly unacceptable.

(e) The test applied in determining whether or not Mr Prager had the required malicious intent is unacceptable.

(f) The combined effect of all these defects is that, de facto, national courts failed completely to carry out the necessary balancing exercise between the requirements of the protection of reputation and those of free speech.

17. The conviction and sentence of Mr Prager constitute a serious interference with the right to freedom of expression of the press. The Eisenstadt judge said explicitly that she intended to teach Mr Prager and his brother journalists a lesson.

Such an - intentional - interference on the basis of an article on a subject of considerable public interest in a serious periodical must be very convincingly justified in order to be acceptable for the Court of Human Rights. For the reasons set out above and summarised in paragraph 16 I find that the Austrian judgments do not satisfy this test.

Accordingly, I find that the conviction and sentence of the applicants constitute a violat ion of Article 10 (art. 10) [31] .

[1] The case is numbered 13/1994/460/541.  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 A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 313 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[4] Judgment of 25 March 1985, Series A no. 90, p. 25, para . 55.

[5] See, as the most recent authority, the Jersild v. Denmark judgment (Grand Chamber) of 23 September 1994, Series A no. 298, p. 26, para . 37.  See for earlier judgments inter alia: the Autronic AG v. Switzerland judgment of 22 May 1990, Series A no. 178, pp. 26-27, para . 61, and the Informationsverein Lentia and Others v. Austria judgment of 24 November 1993, Series A no. 276, p. 15, para . 35.

[6] See especially paragraph 38: "... the impugned interference does not appear to be disproportionate to the legitimate aim pursued.  It may therefore be held to have been 'necessary in a democratic society'."

[7] It is a pity that a complete translation of the article is not available; the reader of the Court's judgment must be content with the Court's synopsis (paragraphs 8-11 of the judgment) which, although not incorrect, would seem in places to be somewhat coloured by the Court's overall assessment of the article and in any event cannot give a good idea of the original text of thirteen pages.

[8] It is to be noted that before the Court the Government did not even try to refute these findings.

[9] According to the applicant the fact finding took him six months; for at least three and a half months he visited the court on a daily basis.

[10] See, as expressing the same idea, paragraph 34 of the Court's judgment.

[11] I agree that public confidence in the judiciary is important (see paragraph 34 of the judgment), but rather doubt whether that confidence is to be maintained by resorting to criminal proceedings to condemn criticism which the very same judiciary may happen to consider as "destructive".

[12] See paragraph 18 of the judgment.

[13] See for a translation of the passages on which the private prosecution was based: paragraph 14 of the judgment.

[14] The Court has said so several times, but the quotation comes, like the preceding one, from its above-mentioned Grand Chamber judgment in the case of Jersild , pp. 23-24, para . 31.

[15] The first sub-paragraph of paragraph 36 of the judgment suggests that to decide whether an impugned statement should be classified a statement of fact or a value-judgment is in principle for the national courts which should be left a margin of appreciation.  In my opinion this suggestion is both incompatible with the rule that the Court has to satisfy itself that the national authorities did apply standards which were in conformity with the principles embodied in Article 10 (art. 10) and have based themselves on an acceptable assessment of the relevant facts (see in the text above); moreover it is a regrettable departure from such judgments as Lingens (Series A no. 103), Oberschlick (Series A no. 204) and Schwabe (Series A no. 242-B).

[16] See for the text of this summary: paragraph 9 of the judgment.

[17] I note in passing that as regards the second extract, the Austrian courts did not even take account of the whole passage: I refer to the full text in paragraph 9 of the Court's judgment. The full text reads:

"Some Austrian criminal court judges are capable of anything; all of them are capable of a lot: there is a pattern to all this."

Without going into the meaning of this text as a whole, the Austrian courts assumed that "some Austrian criminal court judges are capable of anything" could be construed as defamatory of Judge J.

[18] The translation proposed by the applicant has: "contemptuous chicanery"; the Court has opted for "arrogant bullying".

[19] In the present case the most important judgment is that of the Eisenstadt Regional Court judge.  There was no appeal de novo; the Court of Appeal only examined the applicants' grounds of appeal; its review of the arguments of the Eisenstadt judge was rather summary; however, it approved them and dismissed the appeal.

[20] I do not overlook the fact that the Eisenstadt judge, having interpreted the five contested passages as I have indicated, summed up her judgment on the question whether these five passages were - objectively - defamatory as follows:

"Consequently, there can be no doubt that the five passages incriminated by the private prosecution, taken alone as well as considered within the context of the article, are defamatory within the meaning of Article 111 of the Criminal Code."

Having studied her judgment very carefully and after noting that this is the first and last time that the "context of the article" is mentioned, I cannot but regard the words that I have put into italics as paying pious lip-service to a principle that she had completely ignored de facto.

[21] For the requirements of an offer to prove the exceptio veritatis , see paragraph 13 below.

[22] See paragraph 11 of the judgment.

[23] "Again" for, as Mr Prager also relates, it had already cropped up in connection with a rather unsavoury incident with a prostitute.

[24] In order to avoid the impression that Mr Prager here suggested the possibility of Judge J. having been suspected of terrible things, I note that in the original text the unauthorised conduct in question is specified: " Winkelschreiberei ", which - as was explained to us - means that Judge J. was suspected of having given legal advice for a consideration, which a judge is not allowed to do.

[25] Under the case-law of the German Bundesgerichtshof , where the press has addressed questions of public interest and has shown that it has observed due journalistic care it is for the plaintiff to prove falsehood: see, for example, J. Soehring , "Die neue Rechtsprechung zum Presserecht ", NJW 1994, pp. 16 et seq.

[26] The argument of the Austrian Government that, as a consequence of this omission by Mr Prager , his article cannot be considered as a contribution to a critical discussion on a subject of considerable public interest is clearly a non sequitur.

[27] This quotation too comes from the Jersild judgment (pp. 23-24, para . 31); see footnote 2 above.  When the Government argued that Mr Prager could have couched his message in less aggressive terms, they apparently overlooked this doctrine of the Court which makes it, at least, necessary to reconsider the customary approach of national courts asking themselves whether the author could not have expressed his opinion in "more moderate" terms and finding against him if they feel that this question should be answered in the affirmative.

[28] This is not a one-sided interpretation on my part.  There is at least one remark in the article which explicitly corroborates my thesis.  Mr Prager comments on the sentence in a case where a fatally-ill artist is found guilty of fiscal fraud.  Apparently, he finds the sentence extremely severe.  He imputes that sternness to a desire to avoid even an appearance that some people might be treated more leniently than others. That wish is, apparently, also despicable for he goes on to put the rhetorical question "whether judges, whether a judiciary, who act with such a degree of 'correct' lack of comprehension, are themselves entitled to understanding".

[29] See, inter alia, M. Nowak in "The Implementation in National Law of the European Convention on Human Rights", Proceedings of the Fourth Copenhagen Conference on Human Rights, 28 and 29 October 1988, p. 33.

[30] Consequently, I am rather surprised by the Court's suggestion (paragraph 37) that the applicant's conviction was justified inasmuch as "in the absence of a sufficient factual basis" his accusations appeared "unnecessarily prejudicial"!

[31] To avoid misunderstanding I note that this conclusion does not necessarily imply that Mr Prager's article meets the requirements of that provision; it only means that the Austrian judgments did not meet those requirements.  In other words: I do not say that any and every legal action based on the impugned article would have been bound to fail in so far as any finding in favour of the plaintiff would have violated Article 10 (art. 10); I am merely saying - and I am not required to say more - that the findings under review here have violated that Article (art. 10).