CONCURRING OPINION OF JUDGE MARTENS

1. Although I share the conclusion that there was a violation of Article 10 (art. 10) and although I agree in substance with the arguments on which this conclusion is based, my approach to this case has been slightly different from that of the Court. One of the grounds for my approach is that the applicant ’ s conviction for defamation was based not only on his failure to prove the truth of what the Austrian courts assessed as a statement of fact, but also on their finding that he clearly had intended to defame Mr Frühbauer.

2. As in its Lingens and Oberschlick judgments, the Court makes it clear in its present judgment that, where the right to freedom of expression is at stake, there is no room for leaving to the national courts a margin of appreciation as to the assessment of the relevant statements, but that it will effect a full review of such assessments. Rightly so, for such control is indispensable, especially where freedom of public debate on political issues is at stake. Misconception of the notion of freedom of expression easily leads to misconstruction of the relevant statements, particularly by national courts which see themselves as censor morum , even in public debate on political issues.

3. My approach to the present case stems from the fact that it clearly illustrates the danger I have referred to, as well as the need to review fully all the elements in the national court ’ s assessment. Unlike the Austrian judges, I think that, from an objective point of view, there can be no doubt whatsoever that the applicant ’ s press release constituted mainly and primarily a value-judgment on Mr Wagner. That value-judgment was based on both a secondary value-judgment and a statement of fact: the secondary value-judgment was that Mr Frühbauer had been found guilty of a driving offence comparable to that committed by the Mayor and, as a consequence, should also have resigned; the factual statement was that Mr Wagner was well aware of that, but had allowed a political friend to do what he claimed the Mayor was not entitled to do.

4. I do not deny that the secondary value-judgment may seem questionable, especially if one compares the cases of the Mayor and of Mr Frühbauer from a strictly legal point of view. However, first of all, the applicant ’ s press release was clearly devoted to comparing the two cases not from a legal point of view, but merely in terms of political morals. Secondly, questionable opinions too are protected under Article 10 (art. 10); that is a very important principle and it must be upheld.

Nor do I deny that the secondary value-judgment could have been formulated more carefully so as to avoid the possibility that a reader might think that Mr Frühbauer too had been convicted for drunken driving. But, firstly, in the context of the press release, the opinion expressed about Mr Frühbauer really was secondary and, secondly, there is an essential difference between lack of care and intention to defame. Courts which too readily - that is, on the mere strength of their interpretation of the wording of a statement - assume such a criminal intention tend to stifle political debate and thereby violate Article 10 (art. 10).

5. All this makes it clear why the assessments made by the Austrian courts cannot be accepted. They first took the secondary value-judgment out of context, making it into a primary statement, directed against Mr Frühbauer. They then construed the statement as containing several separate reproaches, notably that of drunken driving. Finally, they turned what was - in the light of the wording of the article in Profil - at worst carelessness into malicious intent.

These assessments show that the Austrian courts completely failed to appreciate (a) that the statement in question was, objectively speaking, open to another interpretation; and (b) that, in such a case, the right to respect for freedom of opinion has the consequence that a criminal conviction is justified only when there are compelling grounds - which should not be derived solely from the wording of the impugned statement - for choosing the interpretation that implies criminal intent. Such grounds were lacking here.

[*]  The case is numbered 46/1991/298/369.  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.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: For practical reasons this annex will appear only in the printed version of the judgment (volume A242-B of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.