CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 octobre 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 }                             Application No. 13704/88                            by K. S.                            against Austria             The European Commission of Human Rights sitting in private on 11 October 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   C.L. ROZAKIS                   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 1 February 1988 by K.S. against Austria and registered on 25 April 1988 under file No. 13704/89;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as they have been submitted by the parties, may be summarised as follows.           The applicant, born in 1959, is an Austrian national and resident at A.   He is an industrial management student. Before the Commission he is represented by Mr. W. Brunner, a lawyer practising in Klagenfurt.           The present application relates to the applicant's conviction in particular for defamation which has the following background.           In December 1984 T, the Mayor of Maria Rain (Carinthia), was convicted of having negligently caused bodily harm (fahrlässige Körperverletzung) in a traffic accident under the influence of alcohol (at least 1.75 per mille) and, in particular, of having abandoned the victim of the accident.           In 1985 this conviction was subject to political discussion in Carinthia.   On 13 August 1985 the Carinthian newspaper "Kleine Zeitung" published an article "If T. doesn't think it over, we do!" The article quoted from an interview with the Head of the Socialist Carinthian Government W upon the question whether or not T. had to resign.   W. had referred to the fact that T. did apparently not intend to resign.   He had stated in particular that he did not want to participate in a hunt.   However, after a phase of reflection, T. ought to realise that his resignation was necessary.   W. continued that this would be primarily a matter for the Austrian People's Party.   However, if T. would not think it over, the Regional Supervisory Authority (Gemeindeaufsicht des Landes) would do so.           On 19 August 1985 the applicant wrote a press report in reply to that Article.   At that time the applicant was chairman of the Young Austrian People's Party (Junge Österreichische Volkspartei) in a Carinthian district and councillor (Gemeinderat) of A..   The report read as follows:   <German>           "Es sei keine Frage, daß der wegen Fahrerflucht verurteilte ÖVP-Bürgermeister von Maria Rain zurückzutreten habe, erklärte der Bezirksobmann der Jungen ÖVP Wolfsberg Gemeinderat K. S. in einer Aussendung.           Landeshauptmann W habe aber nicht die geringste moralische Berechtigung Bürgermeister T. wegen seiner Rücktrittsweigerung anzugreifen.   Landeshauptmann W. ist seit Jahren darüber informiert, daß sein Stellvertreter am 10.   Juli 1966 bei Scheifling in der Steiermark im alkoholisierten Zustand einen Verkehrsunfall verursachte, bei dem 2 Kinder zu Halbwaisen wurden.   Man kann sich hier des Eindruckes nicht erwehren, daß der Landeshauptmann bei einem 'kleinen Dorfbürgermeister', der einer anderen Partei angehört, strengere Maßstäbe anlegt, als bei seinem Parteifreund und Stellvertreter F.   Es täte der Glaubwürdigkeit W.'s gut, wenn er innerhalb der SPÖ für jene politische Moral sorgen würde, die er von anderen verlangt, schloß S."   <Translation>           "It would be no question that, after his conviction for leaving the place of accident without reporting to the police, the Mayor of Maria Rain T., member of the Austrian People's Party, would have to resign, stated the Councillor K. S., Chairman of the Young Austrian People's Party in the Wolfsberg District.           However, the Head of the Carinthian Government W did not have the slightest moral right to attack Mayor T. for his refusal to resign.   W had been informed for years that his Deputy F. had caused an accident after drinking on 10 July 1966 at Scheifling (Styria).   The accident had left two children without their father.   One could not help feeling that the Head of the Carinthian Government applied a stricter standard to a 'small mayor of a village', who was a member of another political party, than to his 'party friend' and Deputy F.   It would do W.'s credibility good, if he would provide within the Austrian Socialist Party for the political morals which he requires of others, concluded S."           The applicant referred in his report to a traffic accident caused by F. in 1966 as a result of which one person had died and several persons had been injured.   In 1967 F. had been convicted by the Leoben Regional Court (Kreisgericht) of having committed an offence against security of life (Vergehen gegen die Sicherheit des Lebens). The Leoben Regional Court had considered as an aggravating circumstance that F had been driving after drinking (Alkoholisierung) and had been close to drunken driving (irrefutable at 0.8 per mille). According to the files of the criminal proceedings against F, the blood alcohol content level had been 0.8 per mille at the time of the blood test and estimated at 0.6 per mille to 0.7 per mille at the time of the accident.           The applicant was informed of F.'s traffic accident and subsequent conviction by an article published in April 1984.   The article referred to the circumstances of the accident and in particular the fact that F. had been called drunk by one of the persons at the accident.   Furthermore it stated that F's blood alcohol content level had been 0.8 per mille but that he had not been convicted of drunken driving.   The applicant verified the contents of this article in a telephone conversation with its author.   His request to have access to the files concerning the proceedings concerned was allegedly dismissed by the Leoben Regional Court.           The applicant sent his report to several Carinthian newspapers.           On 20 August 1985 the report was published in its entirety by the "Neue Volkszeitung" with the heading "Different Standards?" ("Zweierlei Maß?").           On 4 September 1985 the Deputy Head of the Carinthian Government F., as a private prosecutor, requested the Klagenfurt Regional Court (Landesgericht) to institute criminal proceedings against the applicant.   In the subsequent criminal proceedings the applicant was represented by Mr. Brunner.           On 26 September 1986 the Klagenfurt Regional Court convicted the applicant of having reproached a person with a criminal offence, in respect of which the sentence had already been executed, under S. 113 of the Austrian Criminal Code (Strafgesetzbuch) and of defamation under S. 111 paras. 1 and 2 of the Criminal Code, by his press report as published by the "Neue Volkszeitung".   The applicant was sentenced to a fine of AS 3000.-.           S. 111 para. 1 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 the public opinion.   By virtue of para. 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 (S. 111 para. 3).   According to S. 112 the burden of proof is on the defendant party.           S. 113 provides that it is a criminal offence to reproach a person in public with a criminal offence in respect of which the sentence had already been executed, or provisionally been suspended, or in respect of which the determination of the sentence had been provisionally adjourned.           By virtue of S. 114 para. 1 an act as mentioned in S. 111 or S. 113 is justified, if thereby a legal duty is carried out or a right exercised.   Under S. 114 para. 2 a person, who is for special reasons forced to make an allegation within the meaning of S. 111 or S. 113 in the particular form and manner, is not to be punished, unless the allegation made is untrue and the offender, acting with necessary care, ought to have been aware thereof.           The Court found that the applicant, in his report as published by the "Neue Volkszeitung", had reproached F. with his traffic accident of 1966.   Furthermore it found that he had defamed F., first, with the reproach that F. had caused the accident while under the influence of alcohol and lacked political morals (apparently because F. did not resign from his political functions at that time).   Second, he had expressed the opinion that F.'s accident of 1966 had been as serious as another accident mentioned in the report although in that accident the responsible driver - contrary to the private prosecutor's case - had also committed the offences of drunken driving and leaving the place of accident without reporting to the police.           The Court considered in particular that the applicant was not excused under S. 114 para. 2 of the Criminal Code.   The circumstance that a party feels embarrassed about the accident of one of its officials would not confer a right to "dig out" the very old accident of an official of the opposite party.   Furthermore there was no "duty to reply" to the political opponent, as the attack referred to by the applicant was made by the Socialist Head of the Carinthian Government W. and was primarily directed against Mayor T.   The applicant, Chairman of a small district organisation, was not obliged to react to this attack by defaming a third person.           Moreover, the applicant could not plead that the reproach of "driving after drinking" was correct.   The man in the street would conclude from this statement that F. - like Mayor T. to whom he was compared - had a blood alcohol content level of more than 0.8 per mille.   A blood alcohol content level of less than 0.8 per mille was tolerated by the legislator and the public and did not give rise to a reproach.   The Regional Court also considered that the applicant had not mentioned that F had not been convicted of drunken driving. He could not maintain that he intended to refer to a blood alcohol content level of less than 0.8 per mille as the general aim of the press report was to describe the two accidents as being morally completely equal, necessitating the same consequence, namely resignation.   The Regional Court stated that the reproach that a politician lacked political morals would not, as such, constitute defamation; the decisive element was the comparison (gleichwertige Gegenüberstellung) of the two accidents.           Finally the Regional Court, having regard to the evidence from a witness of F.'s accident in 1966 and the expert opinion on the question of F.'s blood alcohol content level, submitted in the criminal proceedings in 1967, found that the applicant had failed to prove the truth of his statements.           On 5 February 1987 the applicant appealed (Berufung wegen Nichtigkeit, Schuld und Strafe) against his conviction to the Graz Court of Appeal (Oberlandesgericht).   In his grounds of appeal (Ausführung der Berufung), he submitted in particular that he had drafted the press report in the context of a political discussion in reply to the Head of the Carinthian Government W. who had criticised a member of the Austrian People's Party and that party.   He had found himself compelled to justify his party and to inform the public about W.'s political morals.   He found that the two accidents raised the same problem, namely the compatibility of official functions with a criminal conviction.   Furthermore he maintained that his statements concerning F.'s driving after drinking was correct and justifiable in a political discussion.           On 29 April 1987 the Graz Court of Appeal dismissed the applicant's appeal as being unfounded.   The Court found in particular that the applicant could not plead that he had felt compelled to reply to the Head of the Carinthian Government.   Neither had he been ordered to reply in the name of the Austrian People's Party nor had he himself been addressed as Chairman of the Young Austrian People's Party or member of the Party's Regional Executive Committee.   This decision was served upon the applicant on 4 September 1987.           On 17 September 1987 the applicant submitted a suggestion to lodge a plea of nullity for safeguarding the law (Anregung zur Erhebung einer Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) to the Vienna Attorney General's Office (Generalprokuratur).   He referred, inter alia, to the right to freedom of expression under Article 10 of the Convention and the Lingens judgment of 8 July 1986 (Eur. Court H.R., Series A no. 103).           On 27 October 1987 the Attorney General's Office informed the applicant that it did not intend to lodge such a plea.   COMPLAINTS           The applicant complains under Article 10 of the Convention of his conviction, which in his view was not necessary in a democratic society for the protection of the reputation and the rights of others.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 1 February 1988 and registered on 25 March 1988.           On 4 July 1988 the Commission decided, pursuant to Rule 42 para. 2(b) of the Rules of Procedure, to give notice of the application to the respondent Government and to invite them to submit before 28 October 1988 their observations in writing on the admissibility and merits of the application.           The Government submitted their observations on 2 November 1988 and the applicant was invited to submit observations in reply before 9 January 1989.   The applicant submitted observations in reply on 5 January 1989.   THE LAW           The applicant complains that his conviction by Austrian Courts for defamation and reproach with a previous criminal offence violates his right to freedom of expression within the meaning of Article 10 (Art. 10) of the Convention.           Article 10 (Art. 10) of the Convention provides in so far as relevant:   "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 prescribed by law and are necessary in a democratic society,   ... for the protection of the reputation or rights of others, ...".           The Government submit that a penalty for having reproached someone with a previous criminal offence is an interference necessary in a democratic society to protect the reputation and rights of the person concerned.   The reintegration of criminal offenders into society and the protection of their right to respect for their private life outweigh a general interest in public information.   These prevailing aims can only be achieved if the reproach with a previous criminal offence constitutes a criminal offence in itself, though with a minor penalty.   Politicians cannot be excluded as their previous convictions in general only concern the private sphere.   Furthermore, the applicant was convicted of defamation on the ground that he had imparted information the truth of which he failed to prove.   His statement that F. had caused an accident "after drinking" gave the impression of drunken driving although F.'s blood alcohol content level had in fact been below 0,8 per mille.   Moreover, he had incorrectly compared both traffic accidents.           The applicant maintains that his press articles were intended to contribute to the political debate about whether a criminal offender is acceptable in a public function.   The concept of reintegration of criminal offenders, underlying S. 113 of the Criminal Code, could not apply to politicians.   The applicant considers that he proved that F had caused an accident after "drinking".   The interpretation of this term by the Klagenfurt Regional Court contravened the principle "in dubio pro reo".   The comparison of both accidents was justified as they raised similar aspects.           The Commission finds that the applicant's complaint under Article 10 (Art. 10) of the Convention raises complex issues of fact and law   which can only be resolved by an examination of the merits. The application cannot, therefore, be declared manifestly ill-founded. No   other grounds for inadmissibility have been established.           For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE         without prejudging the merits of the case     Secretary to the Commission              President of the Commission           (H.C. KRÜGER)                            (C.A. NØRGAARD)