DISSENTING OPINION OF JUDGE STEINER JOINED BY JUDGE KOVLER

I do not agree with the majority that there has been a violation of Article 10 of the Convention for the following reasons.

The domestic courts found that the allegations published by the applicant company were untrue and, thus, lacked a sufficient factual basis. Furthermore, they would endanger not only the plaintiff ’ s missio canonica at the university but also cast serious doubt about his reputation as a loyal priest at the Archdiocese Salzburg, in particular because the recipients of “Der 13.” belonged traditionally to the conservative wing of the Catholic Church in Austria . The courts also pointed out that the applicant company had not complied with the ethics of journalism as it had not given the plaintiff an opportunity to comment nor had it distanced itself from the contents of the letter, but had rather identified itself with it by highlighti ng the text through its layout.

In balancing the conflicting interests, namely the applicant company ’ s right to freedom of expression, on the one hand, and the plaintiff ’ s interest in respect for his reputation as a high official within the Catholic Church in Austria , the domestic courts gave preference to the interest s of the latter . They found that eight years after the election of the Salzburg a rchbishop, there was no preponderant public interest in receiving such information.

It is t he Court ’ s constant case-law that national authorities are better placed than an international judge to assess the importance of a religion and its place in the respective State (see Otto-Preminger-Institut v. Austria , judgment of 20 September 1994, Series A no. 295, pp. 20-21, § 56; and Harlanova v. Latvia (dec.), no. 57313/00, 3 April 2003). I am, therefore, not persuaded by the applicant company ’ s argument that high-ranking church officials were comparable to politicians in general and that similar standards under Article 10 had to apply to religious figures. While it is true that religious topics may well be of public interest, such as was the failure of the Church Referendum Movement in the present case, this topic was, however, unrelated to the allegations against Mr Paarhammer which concerned his conduct eight years earlier, namely in the election process of the Salzburg archbishop.

In the majority ’ s view the statements at issue have to be understood as value judgments which had a sufficient factual basis, although they might appear somewhat far fetched (§ 32). I cannot agree. In my mind the allegations were quite severe for a high-ranking church official as they put in question Mr Paarhammer ’ s compliance with his professional dut ies and loyalties. They were positively damaging for Mr. Paarhammer ’ s reputation as he was actually removed from the post he held a short time after (§ 18).

Given the seriousness of the allegations, it seems to me that special diligence on the part of the publisher would have been required (see mutatis mutandis , Prager and Oberschlick , cited above, pp. 18-19, § 37) in order to fulfil the “duties and responsibilities” under Article 10 § 2. This is why I attach significant importance the fact that the applicant had not verif ied the origin of the letter at issue before its publication and do not agree with the majority ’ s critique of the domestic courts ’ decisions in § 32. To hold otherwise would render the duties and responsibilities of journalists, to which the Court attaches particular importance, theoretical and illusionary. The case of Thoma v. Luxembourg , on which the majority relies, relates to circumstances which are quite different from the facts at hand.

Therefore I also endorse the domestic courts ’ findings that the applicant company had not complied with the ethnics of journalism in that it had not distanced itself from, but rather identified itself with the contents through its layout. Therefore I cannot find that there was sufficient factual basis for the statement at issue

Viewed against this background, I find that the applicant company ’ s statements did not constitute a fair comment but rather amounted to a gratuitous personal attack on the professional reputation of a church official (see, mutatis mutandis , Chernysheva v. Russia (dec.), no. 77062/01, 10 June 2004; and e contrario , Unabhängige Initiative Informationsvielfalt v. Austria , no. 28525/95, § 43, ECHR 2002-I). There was, therefore, a pressing social need to prevent the careless use of the allegations at issue.

As regards the nature of the interference, I note that the domestic courts ordered the applicant company to pay EUR 2,180 .19 by way of compensation to the plaintiff, to publish the judgment and to reimburse the plaintiff ’ s costs. Thus the imposed measures were neither disproportionate nor did they place a severe burden on the applicant company.

In my mind , the domestic courts struck a fair balance , by finding that the interest in protecting the plaintiff ’ s reputation as a high-ranking church official outweighed the applicant company ’ s right to freedom of expression i n the circumstances of the case. I am also satisfied that the domestic decisions were based on reasons which were “ relevant and sufficient ” as they took due account of Mr Paarhammer ’ s position as church official, taken in the Austrian framework of the place and importance of religion , in general, and the recipients of the readers of the applicant company ’ s magazine, in particular . Thus, the interference with the applicant company ’ s freedom of expression was proportionate to the aim pursued and the Austrian authorities did not overstep the margin of appreciation accorded to them , within the meaning of Article 10 § 2 of the Convention.

Accordingly, I do not find that there was a violation of Article 10 of the Convention.