DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

It does not seem to be disputed that the only issue in this case is whether or not the interference complained of by the applicant was "necessary in a democratic society".

The facts of the case may be summarised as follows.

In a public interview in August 1985, Mr Wagner, the Head of the Carinthian Regional Government, expressed the opinion that Mr Tomaschitz, the Mayor of a town in the region, ought to resign from office. The reason he gave was that Mr Tomaschitz had recently been convicted for negligently causing bodily harm when driving under the influence of alcohol and for abandoning the victim.

The applicant, a politician and a member of the opposition in the region, issued a press statement in which he said that he agreed with Mr Wagner as to the resignation. However, he added that Mr Wagner "did not have the slightest moral right" to attack Mr Tomaschitz as he had known for years that in July 1966 his own deputy, Mr Frühbauer, had, after consuming alcohol, caused an accident which "had left two children fatherless".

The disagreement was not about whether Mr Tomaschitz should resign. The main point was the applicant ’ s criticism of Mr Wagner ’ s political morals. The persons involved were surely entitled to express their opinions, based on value-judgments, on both points. That is not in issue in the present case. The question is rather whether Mr Frühbauer had, under the rules on freedom of expression contained in our Convention, to tolerate being drawn into this debate in the manner described. Whilst I do not wish to minimise the problem at hand, I have to agree with Judge Matscher that it is a trivial one. The facts of the case show that what was involved was a political skirmish which did not call for the special legal protection that might be appropriate for political debate on another level.

In my opinion, it is necessary in a democratic society to protect the reputation of others, as stated in Article 10 para. 2 (art. 10-2). This rule can be further elaborated on the basis of Article 8 (art. 8). I find two features of this case to be relevant in this respect.

Firstly, in order to criticise Mr Wagner the applicant made use, in 1985, of an article which had recently appeared in an Austrian magazine and which related to a conditional sentence imposed in 1966. I am not in agreement with the majority of the Court when it states, in paragraph 32 of the judgment, that "a politician ’ s previous criminal convictions of the kind at issue here ... may be relevant factors in assessing his fitness to exercise political functions". Without claiming expertise in criminology, it seems clear to me that twenty-year-old conditional sentences, even for acts such as those involved here, do not evidence the moral character of the persons concerned.

Secondly, I agree with the view of the Austrian courts as to the nature of the allegations contained in the press release issued by the applicant.

These two points are, in my opinion, of such a nature that the Austrian courts could convict the applicant without infringing the Convention. I therefore find no violation in this case.

DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

I begin by noting that this case is a trivial one which does not deserve a lengthy statement of my views on the scope of Article 10 (art. 10), views which differ in this case from those of the majority of the Court, who found that there had been a violation of that provision.

In the context of a political quarrel at a local (or regional) level between Mr Schwabe, the Chairman of a district section of the Young Austrian People ’ s Party ( Junge ÖVP) and Mr Wagner, the Head of the Provincial Government ( Landeshauptmann ) and Chairman of the Socialist Party (SPÖ) in Carinthia , the former resurrected a case which was almost twenty years old and concerned Mr Frühbauer, who was Mr Wagner ’ s deputy and a political friend, but in no way directly involved in the quarrel. Mr Frühbauer considered that he had been defamed and brought proceedings against Mr Schwabe. He accused him of having committed defamation (Article 111 of the Criminal Code) by stating the facts incorrectly and giving the public a manifestly erroneous opinion on them; he also accused him of having infringed Article 113 of the Criminal Code, which imposes criminal liability on anyone who accuses another person of having committed an offence in respect of which the sentence has been served (and the conviction long since spent). As a consequence, the relevant court convicted Mr Schwabe and imposed a small fine.

While I recognise the importance of freedom of expression and of the press, in particular in political debate, I consider that this freedom also has limits and carries with it responsibilities expressly referred to in Article 10 para. 2 (art. 10-2) of the Convention (an aspect of the question which appears not to have been accorded great weight in the Court ’ s reasoning). In my opinion, these limits are exceeded if someone, even in the course of political debate, quite unnecessarily and stating the facts incorrectly, defames a politician who is not in fact personally involved in that debate, and thus damages his reputation, the offence being all the more serious where the defamation is committed by means of the media.

As the minority of the Commission rightly observed in their separate opinion, "it must be acknowledged that what is involved in the present case is something very different from a major political debate, which would have justified unfettered freedom of thought".

The majority of the Court considered that the interference with the applicant ’ s freedom of expression was not "necessary": for my part, I consider that what he did - and in particular the way in which he did it - was not necessary either.