CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 mai 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 11662/85                       by Gerhard OBERSCHLICK                       against Austria             The European Commission of Human Rights sitting in private on 10 May 1989, the following members being present:                 MM. J.A. FROWEIN, Acting President                   S. TRECHSEL                   G. SPERDUTI                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 16 June 1985 by Gerhard Oberschlick against Austria and registered on 29 July 1985 under file No. 11662/85;           Having regard to the respondent Government's observations of 23 February 1988 and the applicant's reply of 21 April 1988;           Having deliberated on 6 and 10 May 1989;           Decides as follows:   THE FACTS           The facts agreed between the parties may be summarised as follows.           The applicant is an Austrian citizen, born in 1942 and resident in Vienna.   Before the Commission he is represented by Mr.   R.K. Fiebinger, a lawyer practising in Vienna.           The applicant, who is a journalist, complains of defamation proceedings taken against him in 1983 by Mr.   G.M., at that time Secretary-General of the Austrian Liberal Party (FPÖ).           In a television programme Mr.   G.M. had suggested that the family allowances for Austrian women be raised by 50% in order to prevent abortions based on financial reasons.   At the same time it was proposed that the family allowances paid by the Austrian State to immigrant mothers be cut by 50%.           As a reaction to these statements the applicant and several other persons laid a criminal information (Strafanzeige) on 20 April 1983 against Mr.   G.M. for suspicion of           - incitement to hatred (Verhetzung, Section 283 of the           Penal Code (Strafgesetzbuch)),           - instigation and approval of criminal offences (Aufforderung           zu mit Strafe bedrohten Handlungen und Gutheissung mit           Strafe bedrohter Handlungen, Section 282 of the Penal Code),           and           - activities contrary to Sections 3 and 3 (d) of the National           Socialism Prohibition Act (Verbotsgesetz).           In the reasons it was argued that Mr.   G.M.'s public statement was tantamount to instigating hatred or contempt against foreign workers in Austria, and also inviting Parliament and the Government to engage in activities banned by the National Socialism Prohibition Act.   His proposals corresponded to National Socialist ideology as laid down in the Party Programme of 1920.   This showed that he had acted in line with National Socialist thinking.           On the same day, 20 April 1983, the full text of the criminal information was published in the periodical "FORUM" under the headline "Criminal information against G.M.".   On the cover page of the relevant issue of "FORUM" a hint was made to this publication by a line in bold print:   "Criminal information against Liberal Party Secretary" ("Strafanzeige gegen FPÖ-Generalsekretär").           On 22 April 1983, Mr.   G.M. brought a private prosecution against the applicant and the other signatories of the criminal information for defamation (üble Nachrede, Section 111 of the Penal Code).   Subsection (1) of this provision makes it a criminal offence to state before others that a person has contemptible features or attitudes, or to accuse him of dishonest behaviour or of behaviour contrary to good morals which is liable to scorn, or to degrade him in public opinion.   By virtue of subsection (2) the offence is aggravated if it is committed in print or broadcast or otherwise in such a manner that the defamation becomes accessible to a broad public.   A person will not be punished if it is shown that the   allegation made is true, but in the cases coming only under subsection (1) it is sufficient to prove that the circumstances were such as to give the person making the allegation sufficient grounds to believe that the statement was true (subsection (3)).   According to Section 112 the burden of proof is on the defendant party.           Mr.   G.M. also requested the immediate seizure of the relevant issue of "FORUM" under Sections 33 and 36 of the Media Act, and the adjudication of compensation to be paid to him by the owners of "FORUM", according to Section 6 of the Media Act.           The case was considered the same day, 22 April 1983, by the Review Chamber (Ratskammer) of the Regional Criminal Court (Landesgericht für Strafsachen) of Vienna.   It found that the publication did not constitute the criminal offence under Section 111 of the Penal Code.   The case did not concern the wrong attribution of a certain (dishonest) behaviour, but only value judgments (Bewertung) on a behaviour which as such had been correctly described.   Accordingly the proceedings were discontinued under Section 485 para. 1 (4) of the Code of Criminal Procedure (Strafprozessordnung).           On 31 May 1983 the Vienna Court of Appeal (Oberlandesgericht) quashed the above decision on the appeal (Beschwerde) of Mr.   G.M.   It held that for the average reader the publication must have created the impression that a contemptible attitude (verächtliche Gesinnung) was ascribed to the latter.   The authors had disregarded the standard of fair journalism by going beyond a comparative and critical analysis of Mr.   G.M.'s statement and insinuating motives to him which he had not himself expressed, in particular by alleging that he had been guided by National Socialist attitudes.   Accordingly the case was referred back to the Regional Court.           On 1 June 1983 the public prosecutor's office in Vienna decided that there were not sufficient reasons to prosecute Mr.   G.M. on the basis of criminal information laid against him by the applicant and others (Zurücklegung der Strafanzeige).           At a hearing on 20 July 1983 the Regional Court decided to sever the defamation proceedings against the applicant's co-accused because, although they had signed the criminal information against Mr.   G.M., they had not been associated with its publication in "FORUM". These proceedings were referred to the Vienna District Court for Criminal Affairs (Strafbezirksgericht) which subsequently discontinued them on 9 April 1984.           The trial of the defamation case against the applicant was held by the Regional Court on 11 May 1984.   The Court took evidence by consulting various documents, hearing Mr.   G.M. as a witness and hearing the applicant.   The applicant offered evidence that he had written the truth (Wahrheitsbeweis) and claimed that in this respect it was sufficient that the criminal information had actually been laid against Mr.   G.M. in the terms published in "FORUM".   He further claimed that by reporting the criminal suspicion he had acted in the exercise of a legal duty, and that therefore he was exculpated according to Section 114 of the Penal Code.   The fact that the legal qualification of Mr.   G.M.'s statement might have been erroneous could not be held against him because he was not a lawyer.           However, in its judgment of the same day, the Regional Court convicted him of the offence of defamation under Section 111 (1) and (2) of the Penal Code, imposing a fine of AS 4000.-, to be replaced in case of default by 25 days' imprisonment.   Simultaneously, several measures were pronounced against the owners of "FORUM": the seizure of the relevant issue of this periodical (Section 33 of the Media Act), the publication of the judgment (Section 34 of the Media Act), the joint liability of the owners of "FORUM" for the payment of the fine (Section 35 (1) of the Media Act), and the adjudication of compensation to Mr.   G.M. in the amount of AS 5000.- (Section 6 of the Media Act).           The Regional Court held that it was bound by the decision of the Court of Appeal of 31 May 1983 according to which the objective conditions of the offence of defamation were fulfilled despite the fact that the publication had the form of a criminal information.   The applicant's defence   did not convince the Court.   In the Court's view it was not sufficient that Mr.   G.M. had made the criticised statement and that a criminal information had been laid regarding this statement in the terms published in "FORUM".   Mr.   G.M.'s statements showed a hostile attitude to foreigners, but did not amount to a National Socialist attitude nor to a criminal offence.   Therefore the applicant had failed to establish the truth of his allegations in this respect.           The fact that the publication was only a reprint of the criminal information laid against Mr.   G.M. did not exculpate the applicant.   While everyone was free to report facts to the police which he considered to constitute a criminal offence, it went far beyond the mere reporting of a criminal suspicion to publish the criminal information in question in a periodical and thus to make it accessible to the general public.   In this respect the applicant could not invoke a legal duty or even a legal right.           The applicant appealed against his conviction and sentence. He also applied for a correction of the trial court's record which, according to him, failed to mention certain statements of Mr.   G.M. which were of importance for judging the latter's attitudes and thus for the assessment of the evidence showing the truth of the applicant's allegations.   Allegedly, Mr.   G.M. had at the trial inter alia confirmed his attitude that he was opposed to excessive immigration of foreigners ("Überfremdung") and that for technical reasons he approved the "stop foreigners" campaign ("Ausländer Halt") which, as the applicant observes, was staged by a right wing political party and was subsequently prohibited.   Mr.   G.M. had also admitted having considered measures of social policy directed against the children of foreign workers in Austrian schools.   These statements, however, did not appear in the trial record.           On 4 October 1984 the Regional Court rejected the application for correction of the record as being inadmissible.   It stated that after five months the judge had no recollection of the detailed formulations used, and that nothing in the notes of the transcriber supported the applicant's request.           On 16 December 1984 the applicant's appeal (Berufung) against his conviction and sentence was rejected by the Vienna Court of Appeal.   The Court observed that the ruling refusing a correction of the trial record was final and that there was no appearance that requests made during the trial had not been determined.   Moreover, the allegedly important statements of Mr.   G.M. were irrelevant for the Court's decision.           The Regional Court had not been legally bound to follow the Court of Appeal's earlier decision concerning the qualification of the offence.   However, the Court of Appeal saw no reason to depart from that decision.   The case did not concern the (possibly wrong) legal qualification of Mr.   G.M.'s statements by the applicant, but allegations putting a stain on Mr.   G.M.'s character which objectively could not be based on these statements.           The Regional Court had rightly found that the applicant had failed to show that his allegations were true.   The fact that a short report on the criminal information against Mr.   G.M. would not have been punishable did not justify the conclusion that a full reprint of the criminal information was not punishable either.   The presentation of the publication in the form of a criminal information must have created the impression for the average reader that a particularly serious reproach was made against Mr.   G.M.'s character. Neither the right to report a criminal suspicion (Section 86 (1) of the Code of Criminal Procedure) nor the exception stipulated in Section 114 (2) of the Penal Code justified the full publication of the criminal information because it was not proportionate ("mangels Anlassadäquanz"):   National Socialist attitudes had been insinuated to Mr.   G.M. without a sufficient basis in the facts.           The written judgment was served on the applicant on 7 January 1985.     COMPLAINTS   1.       The applicant alleges a violation of his right to freedom of expression as guaranteed by Article 10 of the Convention.   He does not claim that the legal provisions of the Austrian Penal Code concerning the offence of defamation are in breach of this provision, but contends that the application of these provisions in his case cannot be justified under Article 10 para. 2, in particular that his conviction was not "necessary in a democratic society" for "the protection of the reputation or rights of others".   He claims that the publication in question constituted a value judgment concerning the behaviour of a leading politician and that under the Commission's case-law (in particular No. 9815/82, Lingens v.   Austria, Comm.   Report 11.10.84, and No. 8803/79, Lingens and Leitgeb v.   Austria, Dec. 11.12.81, D.R. 26 p. 171) such value judgments must in principle be admitted in publications of the press in a democratic society, because they are by their nature not accessible to proof of truth.   2.       In addition, the applicant alleges violations of his procedural rights under Articles 6 and 13 of the Convention.           He claims that it was contrary to Article 6 read in conjunction with Article 13 that certain judges of the Court of Appeal had earlier participated in the decision of the Review Chamber of the Regional Court to discontinue the proceedings, or in the decision on the appeal against the Review Chamber's decision.   This was contrary to Section 489 para. 3 of the Austrian Code of Criminal Procedure and the impartiality of the Court and the fairness of the proceedings were thereby impaired.           The applicant further complains that in the second round of proceedings he was deprived of an effective remedy against the Regional Court's decision by the Court of Appeal because this Court had already pronounced itself on the merits in the first round.   The applicant claims that, pending the entry into force of Protocol No. 7 to the Convention, a right to effective criminal appeal proceedings can be derived from Article 13 of the Convention.           The applicant finally complains that it was incompatible with Article 13 of the Convention and contrary to the principles of fair trial that his request for a correction of the record of the trial of 11 May 1984 was rejected.   He states that this record was of fundamental importance for the proof of truth.     PROCEEDINGS           The application was introduced by a letter which the applicant addressed to the Commission on 16 June 1985.   This letter was received on 25 June 1985 and following the submission of the application form the case was registered on 29 July 1985, 25 June 1985 being indicated as the date of introduction.           On 9 November 1987 the Commission decided to give notice of the application to the respondent Government, in accordance with Rule 42, para. 2 (b) of its Rules of Procedure, and to invite them to submit before 5 February 1988 their observations in writing on the admissibility and merits of the application.   At the request of the Government this time-limit was subsequently extended until 15 March 1988.           The Government submitted their observations on 23 February 1988 and the applicant replied thereto on 21 April 1988.     THE LAW   1.       The Government claim that the applicant has not complied with the rule under Article 26 (Art. 26) of the Convention according to which the Commission may only deal with a matter "within a period of six months from the date on which the final decision was taken".   They observe that, according to the information provided by the Commission when communicating the case to the Government, the application was introduced on 25 June 1985 whereas the final domestic decision was pronounced by the Vienna Court of Appeal on 16 December 1984, i.e. more than six months before this date.   The fact that the written judgment was served upon the applicant on 7 January 1985 is irrelevant in the Government's opinion which in this respect relies on the Commission's decision on the admissibility of Application No. 5759/72 (Dec. 20.5.75, D.R. 6 p. 15).   The applicant has replied to this that he actually introduced the application on 16 June 1985.   Indeed his first letter, setting out the substance of the case, is dated 16 June 1985. In these circumstances the application must, in accordance with the usual practice of the Commission, be regarded as having been introduced on 16 June 1985, i.e. the last day of the six months' time- limit provided for in Article 26 (Art. 26), if that time-limit should have to be counted as from the date when the final judgment was pronounced orally. Accordingly the application cannot be rejected as having been filed out of time.   2.       The applicant complains that his conviction for defamation of a politician and the related seizure of his publication constituted an unjustified interference with his right to freedom of expression as guaranteed by Article 10 (Art. 10) of the Convention.   This provision reads as follows:      "(1) Everyone has the right to freedom of expression.   This right         shall include freedom to hold opinions and to receive and impart         information and ideas without interference by public authority         and regardless of frontiers. ...       (2) The exercise of these freedoms, since it carries with it         duties and responsibilities, may be subject to such         formalities, conditions, restrictions or penalties as are pre-         scribed by law and are necessary in a democratic society, in         the interests of national security, territorial integrity or         public safety, for the prevention of disorder or crime, for         the protection of health and morals, for the reputation or         rights of others, for preventing the disclosure of information         received in confidence, or for maintaining the authority and         impartiality of the judiciary."             The applicant's freedom of expression under Article 10 para. 1 (Art. 10-1) of the Convention has been interfered with by his conviction and sentence for the publication in the periodical "FORUM".           The applicant claims that this interference was not covered by Article 10 para. 2 (Art. 10-2), in particular that it was not necessary in a democratic society for the protection of the reputation of others to interfere with a publication which was merely a reprint of a criminal information which had actually been laid and which expressed critical value judgments on the behaviour of a politician in the form of a legal qualification of this behaviour.           The Government submit, in particular, that with appropriate legal advice the applicant should have realised that the suspicion of the criminal offences alleged by him was wholly unfounded.   The applicant was entitled, but not obliged, to lay a criminal information, and in this context he was not required to qualify the reported facts from a legal point of view.   If he did so and overstepped the limits of what was necessary he was responsible for his action.   In any event he had not been convicted for the fact of having laid a criminal information which was legally untenable, but only because he had published it.   This was not merely the expression of an opinion in the form of a value judgment which was not susceptible of being proven as true.   The arguability of the legal qualification of given facts can be verified by reference to the applicable laws and the relevant case-law.   In this context allowance must be made for a certain degree of legal uncertainty, justifying the adoption of different opinions. However, in the present case the legal opinion expressed by the applicant was totally unreasonable ("geradezu denkunmöglich"), since hardly any of the elements of the criminal offences alleged by him were met.   In these circumstances it was possible to assess the question of the correctness of the legal opinion expressed by him. The applicant used an objectively and subjectively wrong legal opinion concerning a politician's behaviour in order to insinuate a despicable attitude to the latter.   While politicians were required to sustain a   higher degree of criticism than other people, there were nevertheless limits to such criticism.   The unproven allegation of National Socialist attitudes constituted a massive attack on a person's reputation also if he was a politician.   The applicant's conviction of defamation was therefore justified, in particular as the sanctions imposed were not disproportionate.           The Commission has considered these arguments, but finds that the applicant's complaint cannot, at this stage, be rejected as being manifestly ill-founded.   It raises complex issues of law and fact concerning the application of Article 10 (Art. 10) of the Convention which require a determination on the merits.   3.       The applicant has further submitted a number of procedural complaints. He has invoked Articles 13 and 6 (Art. 13, 6) in this respect, but the Commission considers that only the latter provision is applicable.   In fact the applicant was charged with a criminal offence, and therefore was entitled to the procedural guarantees enshrined in Article 6 paras. 1 to 3 (Art. 6-1, 6-2, 6-3).   As these provisions are more specific than those contained in Article 13 (Art. 13) of the Convention, there is no room to apply the latter Article.           Article 6 para. 1 (Art. 6-1), first sentence, of the Convention provides:           "In the determination of his civil rights and         obligations or of any criminal charge against him,         everyone is entitled to a fair and public hearing         within a reasonable time by an independent and         impartial tribunal established by law."             The applicant claims that the Court of Appeal which dealt with the case in the second round of the proceedings lacked impartiality, because it included judges who had participated in the first round of the proceedings, and who would have been excluded by virtue of Section 489 para. 3 of the Austrian Code of Criminal Procedure. The applicant also claims that he has not had a fair hearing because the Court of Appeal had the same composition as in the first round of proceedings and therefore had preconceived ideas when examining the applicant's appeal in the second round.           In this respect the Commission first notes from the information provided by the Government that no member of the Court of Appeal had previously been involved in the Regional Court's proceedings.           However, the Court of Appeal had the same President in both rounds of the proceedings.   Under Section 489 para. 3 of the Code of Criminal Procedure the President should not have participated on the second occasion.           The Government submit that the applicant has not exhausted the domestic remedies in this respect as he failed to raise the issue of the composition of the court immediately at the trial.   The applicant, on the other hand, states that neither he nor his defence counsel knew the presiding judge and that the defence only learnt from the decision when it was served that he had been the same person who had also presided over the Court of Appeal in the first round of proceedings. In these particular circumstances the applicant must be absolved from using the remedy indicated by the Government, and therefore this part of the application cannot be rejected for failure to exhaust domestic remedies.           As regards the substance of the applicant's above complaint, the Commission finds that it cannot at this stage be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   In particular the fact that a legally excluded judge took part in the Court of Appeal's proceedings raises an issue as to whether the Court was "impartial" and "established by law" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   This issue requires a determination on the merits.   4.       The applicant finally complains of the Regional Court's refusal to rectify the record of the trial as requested by him.   He claims that the record did not correctly reflect the position stated by the private prosecutor, who had been heard as a witness, and that this was of particular relevance for the proof of the truth of the applicant's allegations.           The Government submit that in this respect the applicant has failed to comply with the six-months rule as laid down in Article 26 (Art. 26) of the Convention because the final decision here was the decision of the trial judge of 4 October 1984.   However, the Commission notes that the question of the trial record was in fact considered in the Court of Appeal's decision of 16 December 1984.   In these circumstances the applicant's above complaint cannot be rejected as having been filed out of time.           The Commission notes that the question of the trial record could be of relevance for the proceedings of the Court of Appeal and, in particular, the fairness thereof.   It considers that this issue cannot be severed from the applicant's other complaints under Article 6 (Art. 6) and therefore must also be determined as to the merits.             For these reasons, the Commission             DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.     Secretary to the Commission             Acting President of the Commission          (H.C. KRÜGER)                                (J.A. FROWEIN)