CEDH · CASELAW;REPORTS;ENG — 28 février 1994

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 15974/90                   Michael Prager and Gerhard Oberschlick                                   against                                   Austria                          REPORT OF THE COMMISSION                        (adopted on 28 February 1994)                              TABLE OF CONTENTS                                                                    Page   I.          INTRODUCTION            (paras. 1-14). . . . . . . . . . . . . . . . . . . . . . 1              A.     The application                  (paras. 2-4) . . . . . . . . . . . . . . . . . . . 1              B.     The proceedings                  (paras. 5-9) . . . . . . . . . . . . . . . . . . . 1              C.     The present Report                  (paras. 10-14) . . . . . . . . . . . . . . . . . . 2   II.         ESTABLISHMENT OF THE FACTS            (paras. 15-41) . . . . . . . . . . . . . . . . . . . . . 3              A.     The particular circumstances of the case                  (paras. 15-37) . . . . . . . . . . . . . . . . . . 3              B.     Relevant domestic law                  (paras. 38-41) . . . . . . . . . . . . . . . . . . 9   III.        OPINION OF THE COMMISSION            (paras. 42-74) . . . . . . . . . . . . . . . . . . . . .11              A.     Complaints declared admissible                  (para. 42) . . . . . . . . . . . . . . . . . . . .11              B.     Points at issue                  (para. 43) . . . . . . . . . . . . . . . . . . . .11              C.     Article 10 of the Convention                  (paras. 44-68) . . . . . . . . . . . . . . . . . .11                    CONCLUSION                  (para. 68) . . . . . . . . . . . . . . . . . . . .15              D.     Article 14, in conjunction with Article 10,                  of the Convention                  (paras. 69-72) . . . . . . . . . . . . . . . . . .15                    CONCLUSION                  (para. 72) . . . . . . . . . . . . . . . . . . . .15              E.     Recapitulation                  (paras. 73-74) . . . . . . . . . . . . . . . . . .15   DISSENTING OPINION OF Mr. S. TRECHSEL, JOINED BY MM. C.L. ROZAKIS, M.P. PELLONPÄÄ, G.B. REFFI, J. MUCHA and D. SVÁBY . . . . . . . . .16   DISSENTING OPINION OF Mrs. G.H. THUNE, MM. M.F. MARTINEZ, B. MARXER and M.A. NOWICKI. . . . . . . . . . . . . . . . . . . . .17   APPENDIX I        : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .18   APPENDIX II       : DECISION ON THE ADMISSIBILITY                    OF THE APPLICATION . . . . . . . . . . . . . . .19   I.     INTRODUCTION   1      The following is an outline of the case as submitted to the European Commission of Human Rights and of the procedure before the Commission.   A.     The application   2      The first applicant, born in 1949, and the second applicant, born in 1942, are Austrian nationals resident in Vienna and journalists by profession. The second applicant is editor of the periodical "FORUM - Internationale Zeitschrift für kulturelle Freiheit, politische Gleichheit und solidarische Arbeit", i.e., according to its subtitle, an international magazine for cultural freedom, political equality and solidarity.         Before the Commission they are represented by Mr. G. Lansky, a lawyer practising in Vienna.   3      The application is directed against Austria. The respondent Government are represented by their Agent, Mr. F. Cede, Ambassador, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   4      The applicants complain under Article 10 of the Convention about the first applicant's conviction by the Eisenstadt Regional Court (Landesgericht) of defamation in respect of critical remarks about a particular judge in the context of a report about judges at the Vienna Regional Court, and about related court orders which also affected the second applicant. The second applicant also invokes Article 14 of the Convention.   B.     The proceedings   5      The application was introduced on 21 December 1989 and registered on 11 January 1990.   6      On 6 January 1992 the Commission decided that notice should be given to the respondentGovernment of the application and that they should be invited to submit written observations on the admissibility and merits of the application.   7      The Government's observations were submitted on 24 April 1992. The applicant's observations in reply were submitted on 24 June 1992.   8      On 29 March 1993 the Commission declared admissible the applicants' complaints that the Eisenstadt Regional Court's judgment of 11 October 1988, as confirmed by the Vienna Court of Appeal on 26 June 1989, violated their right to freedom of expression and constituted discrimination. The remainder of the application was declared inadmissible.   9      After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1(b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   10     The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY   11     The text of this Report was adopted on 28 February 1994 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   12     The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)     to establish the facts, and   ii)    to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   13     A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   14     The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   15     On 15 March 1987 the first applicant, in "FORUM" No. 397/398, published a report under the heading "Attention! Severe Judges!" ("Achtung! Scharfe Richter!"), criticising on several pages Austrian judges in criminal cases. After a brief summary of his main idea and a general introduction, the applicant described in particular nine judges at the Vienna Regional Court sitting in criminal matters (Landesgericht für Strafsachen), inter alia Judge J.   16     In the brief summary, the applicant stated:   <German>              "Sie behandeln jeden Angeklagten von vornherein, als wäre       er bereits verurteilt; sie lassen vom Saal heraus aus dem Ausland       Angereiste wegen Fluchtgefahr verhaften; sie fragen Bewußtlose,       ob sie ihre Strafe annehmen; Unschuldsbeteuerungen kosten sie nur       noch ein Achselzucken und den Angeklagten die Höchststrafe, weil       er nicht geständig ist. - Einige von Österreichs Strafrichtern       sind zu allem imstande. Zu einigem sind alle imstande: das Ganze       hat Methode."   <Translation>              "They treat each and every accused as if he were already       convicted; they have people who have come from abroad arrested       in court for danger of absconding; they ask people who have       fainted if they accept their sentence; claims of innocence merely       make them shrug their shoulders and earn the accused the stiffest       penalty because he has failed to confess. Some of Austria's       judges are capable of anything. All of them are capable of quite       something. There is method in all this."   17     In the general introduction, the applicant wrote that the Austrian judges at regional courts (Landes- und Kreisgerichte) exercised absolute power in court and that the most insignificant personal weaknesses and peculiarities could have serious consequences. In such circumstances, the principle of free assessment of evidence (freie Beweiswürdigung), the principle of the judge appointed in accordance with the law (gesetzlicher Richter), the rules on the distribution of cases, and the principle of the independence of the judiciary (richterliche Unabhängigkeit) could be perverted. He criticised that there were judges who acquitted the accused only if there was no other choice, whose judgments were in principle more severe than those of most of their colleagues, who treated defence counsel as if they were the accused, who plagued and humiliated the accused. He also reported about his experiences in making the inquiries for the report. He concluded with short remarks about some particular judges mentioning the "cynical vexations" ("menschenverachtende Schikanen") of Judge J.   18     In the main part of his report relating to individual judges, the applicant stated about Judge J. as follows:   <German>              "Typ: rabiat            ...            [J.]: "Kurz plädieren, Herr Verteidiger. Das Urteil steht       schon fest." - Zum Wiener Rechtsanwalt [K.], vor einigen Jahren.              [J.]: Ein Richter, der Bewährungshelfern nicht gestattet,       in seinem Zimmer Platz zu nehmen. Mit denen redet er nämlich       nicht.              [J.]: Ein Richter, der einmal eine Prostituierte angezeigt       hat, weil er schon gezahlt hatte, sie aber mit ihrem Zuhälter       abrauschte, ohne daß etwas passiert wäre. Sie dachte wohl, der       Freier wäre zu besoffen, um den Unterschied zu merken. Aber der       legte sich auf die Lauer und notierte die Autonummer.              Mit seiner Anzeige handelte [J.] der Dirne sogar eine Ver-       urteilung ein - sich selbst aber ein Disziplinarverfahren, das       sich gewaschen hatte, weil die pikante Story - die immerhin für       die Querköpfigkeit [J.s] spricht - in die Zeitung kam.              Fast wäre er übrigens trotzdem Staatsanwalt geworden. Aber       die Zeitung ließ eine Geschichte platzen, in der wieder einmal       sein Name vorkam - diesmal in Zusammenhang mit einem Kriminal-       prozeß und Verdacht auf Winkelschreiberei. Zwei Herren, Vater und       Sohn L., waren angeklagt, mittels betrügerischer Verträge Leuten       für Eigentumswohnungen in Althäusern Geld herausgerissen zu       haben. Als klar wurde, daß die Verträge von [J.] aufgesetzt       worden waren, nahm die Anklage eine andere Richtung: plötzlich       waren nicht mehr die Verträge betrügerisch, sondern die Ab-       sichten, mit denen sie verwendet worden waren.              [J.] blieb Richter, statt Staatsanwalt zu werden. Den       `Kurier'-Autoren tut's heute leid, Staatsanwalt ist weniger       gefährlich.              Das `profil' belegte im September, warum: [J.] hatte in       seiner Funktion als Untersuchungsrichter einen Rauschgift-       süchtigen über ein Jahr lang in U-Haft belassen, obwohl er von       den Pflichtverteidigern des Inhaftierten immer wieder darauf       hingewiesen worden war, daß er die Rauschgiftmenge falsch       beurteile und der Strafrahmen nur vier bis sechs Monate sei.              Wobei [J.] die letzte Nichtigkeitsbeschwerde vorschrifts-       widrig nicht an den Obersten Gerichtshof weitergeleitet hatte,       sondern ans Oberlandesgericht und den Gerichtspräsidenten, die       nochmals drei Monate prüften, ob enthaftet werden sollte und ob       mögliche Verfehlungen des U-Richters vorlägen.              Zumindest diese drei Monate hätte ein Kopierapparat dem       Untersuchungshäftling erspart: Anfang März von dem neuen Richter       enthaftet, an den die endlich eingeschalteten Oberstrichter den       Akt zurückschickten, wurde der 13 Monate Inhaftierte schließlich       Ende März verurteilt. Zu fünf Monaten.              Allein die Anwaltkosten hätten bis dahin 85.000 Schilling       betragen, wie die beiden Pflichtverteidiger des [J.]-Opfers, [B.]       und [L.], errechnet haben.              Ganz spurlos scheint das alles auch an Richter [J.] nicht            vorbeigegangen zu sein. Der hochgewachsene bärtige Richter            hat eine tiefe, klangvolle Stimme. Aber während des ganzen            Prozesses gegen die `Urlaubsräuberin' Marianne O. hält sich            ein hart-näckiges Zucken im Gesicht des [S.]-Beisitzers.              Dann wird das Geschworenenurteil ausgesetzt und Anwalt [G.]       bekommt ein Disziplinarverfahren angehängt."   <Translation>              "Type: rabid            ...            [J.], addressing the Vienna lawyer [K.] some years ago:       `Keep it short. I've already made up my mind.'              [J.]: A judge who does not allow probation officers to sit       down in his office. He does not talk to such people.              [J.]: A judge who once laid a complaint against a       prostitute because he had already paid her, but she and her pimp       vanished without anything having happened. She might have thought       that her client was too drunk to notice the difference. [J.]       however lay in wait and noted the car number.              [J.]'s complaint resulted in a conviction for the       prostitute - and disciplinary proceedings for himself, which       proved effective because the saucy story, which says much for       [J.]'s pigheadedness, got into the newspapers.              Despite all this he almost became a public prosecutor. But       the press revealed a story in which his name cropped up again,       this time in connection with criminal proceedings and the       suspicion of dishonest practices. Two men, MM. L., father and       son, were accused of having obtained money from people seeking       to buy flats in old property, by means of fraudulent contracts.       When it became clear that the contracts had been drawn up by       [J.], the accusation took another tack: suddenly it was no longer       the contracts which were fraudulent, but the intention with which       they had been used.              [J.] remained a judge instead of becoming a public       prosecutor. The authors working for the `Kurier' [N.B.: an       Austrian newspaper] now regret this because a public prosecutor       is less dangerous.              In September `profil' [N.B.: an Austrian magazine] showed       why. In his capacity as an investigating judge, [J.] had left a       drug addict in detention on remand for over one year, although       the remand prisoner's official defence counsel repeatedly told       him that he was making a mistake regarding the quantity of drugs       involved and that the relevant sentence would be four to six       months' imprisonment.              In breach of the regulations, [J.] did not forward the       latest plea of nullity to the Supreme Court, but to the Court of       Appeal and to the President of the Court of Appeal, which took       a further three months to consider whether the man should be       released from prison and whether there had been any misconduct       on the part of the investigating judge.              A photocopier would have spared the prisoner at least three       months. Released at the end of March by the new judge to whom the       Supreme Court judges, finally brought into play, forwarded the       case file, the prisoner was at last convicted at the end of March       and sentenced to five months' imprisonment. He had been detained       on remand for thirteen months.              The two official defence counsel [B.] and [L.] of the [J.]-       victim calculate that solely the legal fees up to that date       amounted to AS 85,000.              All this does not seem to have left Judge [J.] unscathed.       The tall, bearded judge has a deep, resonant voice. Yet       throughout the trial of Marianne O., the `holiday'-thief, an       obstinate tick was to be seen in the face of Judge [S.]'s       colleague on the Bench.              Then the jury's verdict was suspended and defence counsel       [G.] found himself facing disciplinary proceedings."   19     In his report the applicant referred to inquiries of two criminal sociologists relating to decisions on detention on remand and sentencing in the district of the Vienna Court of Appeal, and to a university study in 1985 on regional sentencing practices in Austria, and named other newspapers as well as third persons, in particular lawyers, as sources of his information.   20     On 23 April 1987 Judge J. requested the Vienna Regional Court to institute criminal proceedings against the first applicant, to which the second applicant, as editor of the periodical in question, was a party. J. considered that certain passages in the report summarised and partly cited above were defamatory within the meaning of S. 111 of the Austrian Penal Code (Strafgesetzbuch). In these proceedings, both applicants were represented by Mr. Lansky.   21     On 5 August 1987 the Austrian Supreme Court (Oberster Gerichts- hof) dismissed the applicants' motion to challenge the Vienna Court of Appeal for bias. On 17 September 1987 the Vienna Court of Appeal, upon the applicants' challenge of the Vienna Regional Court for bias, transferred the case to the Eisenstadt Regional Court.   22     On 17 November 1987 the Eisenstadt Regional Court ordered the second applicant to print in the periodical "FORUM" a notice that [J.] had brought a private prosecution for defamation in respect of particular passages in the above-mentioned report. The applicants' appeal (Beschwerde) remained unsuccessful.   23     On 15 December 1987 the President of the Eisenstadt Regional Court dismissed the applicants' motion to challenge the Presiding Judge for political reasons.   24     On 11 October 1988 the Eisenstadt Regional Court found the first applicant guilty of having defamed Judge J. in that, in his report "Attention! Severe Judges!" as published in the periodical "FORUM" on 15 March 1987, he made the following remarks:         (1)   "They treat each and every accused as if he were       already convicted."         (2)   "Some of Austria's judges are capable of anything."         (3)   "Nothing compared to ... the cynical vexations of       Judge [J.]."         (4)   "Type rabid ... [J.]."         (5)   "Despite all this he almost became a public       prosecutor. But the press revealed a story in which his       name cropped up again, this time in connection with       criminal proceedings and the suspicion of dishonest       practices. Two men, Messrs. L., father and son, were       accused of having obtained money from people seeking to buy       flats in old property, by means of fraudulent contracts.       When it became clear that the contracts had been drawn up       by [J.], the accusation took another tack: suddenly it was       no longer the contracts which were fraudulent, but the       intention with which they had been used.              [J.] remained a judge instead of becoming a public       prosecutor. The authors working for the `Kurier' now regret       this because a public prosecutor is less dangerous."   25     The Regional Court convicted the first applicant of defamation under S. 111 paras. 1 and 2 of the Penal Code and sentenced him to 120 daily rates (Tagessätze) of AS 30, in default of payment to 60 days' imprisonment. The costs of the proceedings were awarded against the first applicant. The Regional Court, referring to S. 33 para. 1 of the Austrian Media Act (Mediengesetz), also ordered the confiscation of the remaining copies of the periodical concerned and the publication of the relevant parts of the judgment. Furthermore, it decided that, in accordance with S. 35 of the Media Act, the second applicant, as editor of the periodical, should be jointly liable for the payment of the fine, the costs of the proceedings, and the costs of publishing the judgment. Moreover, pursuant to S. 6 para. 1 of the Media Act, the Regional Court ordered the second applicant to pay J. compensation of AS 30,000. Finally, the Regional Court, referring to S. 34 para. 1 of the Media Act, ordered the publication of the operative part of this judgment in the periodical "FORUM".   26     The Regional Court, in its detailed reasoning, examined first the objectively defamatory nature of the five passages mentioned above. It found that, in everyday language, the term "rabiat" ("rabid") meant "wild, angry, acting without consideration, brutally and violently". The term "Schikane" ("vexation") denoted a measure taken on the basis of public or official powers which caused unnecessary difficulties for a third person, and only applied to intentional actions. A "menschen- verachtende" ("cynical") person regarded human beings as bad, inferior and unworthy, thus detested others and thereby degraded them. The reproach that accused persons were treated as if they were already convicted meant that such a judge lacked impartiality and fairness and acted contrary to Article 6 para. 2 of the Convention. In the context of the other accusations, the reproach with being "zu allem imstande" ("capable of anything") also meant an intolerable behaviour. The fifth passage contained the suspicion that J. had committed criminal and disciplinary offences.   27     The Court considered that the accusations, taken together, were so strong that an impartial reader was bound to suspect J. of dishonourable behaviour and a contemptible character. The general public required a judge to be impartial, fair, reliable and conscientious in fulfilling his judicial tasks and, whether in pursuit of his profession or otherwise, to act above blame and as an ideal for others. The incriminated passages were contrary to all these legitimate ideas.   28     The Regional Court found that the first applicant had acted with the intent of defaming J.   29     Furthermore, he had failed to prove the truth of his statements mentioned above under items (1), (3) and (5), or to apply the necessary diligence as a journalist (Einhaltung der journalistischen Sorgfalt). The accusations under items (2) and (4) were value-judgments and as such not subject to proof.   30     The Regional Court noted the first applicant's arguments and evidence adduced to prove the truth of his accusations, and his statement that, in having applied the necessary diligence, he could regard these facts as true. The Regional Court summarised the first applicant's submissions as follows: repeatedly disciplinary proceedings had been brought against J.; J. had once kept an accused unreasonably long in detention on remand and further delayed these proceedings; a disciplinary complaint against a lawyer had been unsubstantiated; J. had asked defence counsel to keep his pleadings short because the judgment was already definitive; J. had been involved in the fraud proceedings against Messrs. L., and refused to talk to social workers. The first applicant had requested that various files concerning criminal proceedings against third persons and all disciplinary files concerning J. be consulted, and that two counsel, two judges of the Vienna Court of Appeal and a judge of the Vienna Regional Court be heard as witnesses on disciplinary matters relating to J. Furthermore, he had requested inquiries into J.'s application for a post as public prosecutor, and the reasons why he was not admitted.   31     The Regional Court considered, in detailed reasoning, that the evidence offered by the first applicant to prove the truth of the incriminated passages was not pertinent. The single incidents which the first applicant offered as proof did not show a general lack of impartiality, or intent to delay proceedings concerning detention matters or otherwise to raise unnecessary obstacles. Moreover, J., in disciplinary proceedings in 1982 relating to his role in the criminal proceedings against Messrs. L., had been completely discharged. The files concerning J.'s application for a post as public prosecutor were confidential.   32     With regard to the first applicant's failure to prove that he had applied the necessary diligence as a journalist, the Regional Court noted in particular that he had not heard J. on the reproaches against him, and had not attended any trial conducted by J. He had further copied earlier press reports without checking them and he had reproduced allegations which he only knew by hearsay.   33     Finally, the Regional Court considered that the first applicant's obvious negligence, his strong criminal intent and his continuing journalistic activities as well as considerations of general deterrent required that the sentence be fully executed. The compensation was fixed with regard to the serious harm inflicted upon J.'s professional reputation and the second applicant's financial situation.   34     The Regional Court also noted that the second applicant, though duly summoned, had not appeared at the trial.   35     On 26 June 1989 the Vienna Court of Appeal, upon the applicants' appeal, reduced the compensation to AS 20,000. It dismissed the remainder of the appeal. The Court of Appeal considered in particular that the applicants' defence rights had not been unduly restricted at first instance. The first applicant had failed to show that the evidence offered to prove the truth of his statements was pertinent. His difficulties in this respect resulted from his own broad and general formulation of the incriminated passages. Furthermore, the applicant's case could not be compared to the "Lingens case" (Eur. Court H.R., Lingens judgment of 8 July 1986, Series A no. 103).   36     The judgment was served upon the applicants on 25 July 1989.   37     The Regional Court's order to confiscate the remaining copies of the periodical concerned was finally not executed.   B.     Relevant domestic law   38     SS. 111, 112 and 114 of the Austrian Penal Code (Strafgesetz- buch) concern the offence of defamation. S. 111 provides as follows:   <German>         "(1) Wer einen anderen in einer für Dritte wahrnehmbaren       Weise einer verächtlichen Eigenschaft oder Gesinnung zeiht       oder eines unehrenhaften Verhaltens oder eines gegen die       guten Sitten verstoßenden Verhaltens beschuldigt, das       geeignet ist, ihn in der öffentlichen Meinung verächtlich       zu machen oder herabzusetzen, ist mit Freiheitsstrafe bis       zu sechs Monaten oder mit Geldstrafe bis zu 360 Tagessätzen       zu bestrafen.         (2) Wer die Tat in einem Druckwerk, im Rundfunk oder sonst       auf eine Weise begeht, wodurch die üble Nachrede einer       breiten Öffentlichkeit zugänglich wird, ist mit       Freiheitsstrafe bis zu einem Jahr oder mit Geldstrafe bis       zu 360 Tagessätzen zu bestrafen.         (3) Der Täter ist nicht zu bestrafen, wenn die Behauptung       als wahr erwiesen wird.   Im Fall des Abs. 1 ist der Täter       auch dann nicht zu bestrafen, wenn Umstände erwiesen       werden, aus denen sich für den Täter hinreichende Gründe       ergeben haben, die Behauptung für wahr zu halten."   <Translation>         "1. Anyone who in such a way that it may be perceived by a third       person accuses another of possessing a contemptible character or       attitude or of behaviour contrary to honour or morality and of       such a nature as to make him contemptible or otherwise lower him       in public esteem shall be liable to imprisonment not exceeding       six months or a fine ...         (2) Anyone who commits this offence in a printed document, by       broadcasting or otherwise in such a way as to make the defamation       accessible to a broad section of the public shall be liable to       imprisonment not exceeding one year or a fine ...         (3) The person making the statement shall not be punished if it       is proved to be true. As regards the offence defined in paragraph       1, he shall also not be liable if circumstances are established       which gave him sufficient reason to assume that the statement was       true."   39     Under S. 112, evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the accuracy of his statement or his good faith.   40     By virtue of S. 114 para. 1, conduct of the kind mentioned in S. 111 is justified if it constitutes fulfilment of a legal duty or the exercise of a right. According to S. 114 para. 2, a person who is forced by special circumstances to make an allegation within the meaning of S. 111 in the particular form and manner in which it is made, is not to be punished, unless that allegation is untrue and the offender could have been aware thereof if he had acted with the necessary care.   41     S. 6 of the Austrian Media Act (Mediengesetz) provides for the strict liability of the publisher in cases of defamation; the victim can thus claim compensation from him. Furthermore, in accordance with S. 35 of the Media Act, the publisher may be declared to be liable jointly and severally with the person convicted of a media offence for the fines imposed and for the costs of the proceedings. S. 33 provides for the confiscation of publications by which media offences have been committed, and S. 34 for the publication of the judgment in so far as this appears necessary for the information of the public.   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   42     The Commission has declared admissible:   -      the applicants' complaint that the Eisenstadt Regional Court's       judgment of 11 October 1988, as confirmed by the Vienna Court of       Appeal on 26 June 1989, violated their right to freedom of       expression;   -      the second applicant's complaint that the said judgment, ordering       the confiscation of the remaining copies of the periodical as a       whole, amounted to discrimination.   B.     Points at issue   43     Accordingly, the issues to be determined are:   -      whether there has been a violation of Article 10 (Art. 10) of the       Convention;   -      whether there has been a violation of Article 14, taken in       conjunction with Article 10 (Art. 14+10), of the Convention.   C.     Article 10 (Art. 10) of the Convention   44     Article 10 (Art. 10) of the Convention provides, 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 prevention of       disorder and crime, ... for the protection of the reputation or       rights of others, ... or for maintaining the authority and       impartiality of the judiciary."   45     The Eisenstadt Regional Court, in its judgment of 11 October 1988, as confirmed by the Vienna Court of Appeal on 26 June 1989,   convicted the first applicant of defamation and imposed a fine upon him; it further ordered the second applicant's joint liability regarding the fine as well as procedural and other costs; it awarded damages against the second applicant; it ordered the confiscation of the remaining copies of the periodical concerned; lastly it ordered the publication of the operative part of its judgment.   46     The Commission finds that these decisions constituted an interference with both applicants' right to freedom of expression. This interference is in breach of Article 10 (Art. 10) of the Convention, if it is not "prescribed by law" and "necessary in a democratic society" for one of the aims mentioned in paragraph 2 of Article 10 (Art. 10).   47     As to the conformity with the law, the Commission considers that the first applicant's conviction for defamation was based on S. 111 of the Austrian Penal Code.   48     The first applicant raises doubts as to whether the penal provisions on defamation, in particular S. 111 of the Penal Code, are sufficiently precise as a legal basis for an interference with the freedom of expression.   49     The Commission finds that under the penal law provisions on defamation, as interpreted in the case-law of the Austrian courts, the applicant could foresee, to an extent reasonable in the circumstances of the present case, the consequences of publishing the article and particularly the incriminated passages (cf., mutatis mutandis, Eur. Court H.R., Müller and Others judgment of 24 May 1988, Series A no. 133, p. 20, para. 29).   50     The further court decisions which were related to the first applicant's conviction were based on the relevant provisions of the Media Act.   51     The Commission is satisfied that the interference was "prescribed by law".   52     Moreover, the interference in question had the legitimate aims of protecting the "reputation" of others, i.e. of the Judge J., and of "maintaining the authority ... of the judiciary", within the meaning of paragraph 2 of Article 10 (Art. 10-2).   53     It remains to be determined whether or not the interference was "necessary in a democratic society" for the aforesaid aims.   54     The applicants submit that the first applicant's article was intended to criticise misuse of powers in the administration of criminal justice. In formulating his article, he had not gone beyond the limits of acceptable criticism. According to the applicants, the Austrian court judgments in question did not duly balance the public interest in critical information by the press about the performance of the administration of justice and the working methods of particular criminal judges.   55     The Government contend that the said interference was necessary in a democratic society for the protection of the reputation or rights of others as well as for maintaining the authority and impartiality of the judiciary. In this respect, they refer primarily to the Barfod judgment of the European Court of Human Rights (22 February 1989, Series A no. 149). They consider that the subject of the first applicant's article was neither a matter of political debate, where the limits of criticism are wider, nor did the incriminated passages contribute to a critical discussion on the Austrian administration of criminal justice. The incriminated article could not be qualified as a reasonable reaction to any behaviour of Judge J. Rather, the article contained defamatory accusations against an individual judge which were likely to degrade him in public esteem.   56     In examining the question of the necessity of the interference in question, the Commission has had regard to the major principles on this issue emerging from the relevant case-law (cf. Eur. Court H.R., Schwabe judgment of 28 August 1992, Series A no. 242-B, pp. 32-33, para. 29; Castells judgment of 23 April 1992, Series A no. 236, pp. 22-24, paras. 42-43, 46; Thorgeir Thorgeirson judgment of 25 June 1992, Series A no. 239, p. 27, para. 63; Observer and Guardian judgment of 26 November 1991, Series A no. 216, pp. 29-30, para. 59; Sunday Times (No. 2) judgment of 26 November 1991, Series A no. 217, pp. 28-29, para. 50; Barfod judgment of 22 February 1989, Series A no. 149, p. 12, paras. 28-29) which may be summarised as follows:   57     Freedom of expression constitutes on