CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 septembre 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 21940/93                       by D. F.                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 2 September 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 14 May 1993 by D. F. against Austria and registered on 27 May 1993 under file No. 21940/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     THE FACTS         The applicant is an Austrian citizen, living in Rankweil (Austria) and born in 1952. Before the Commission he is represented by Mr. A. Adam, a lawyer practising in Neulengbach.         The facts, as they have been submitted by the applicant, may be summarised as follows.   A.     Particular circumstances of the case         On 21 February 1992 Dr. S., the senior gynaecologist of the Feldkirch Regional Hospital (Landeskrankenhaus), published a letter to the editor in the "Vorarlberger Nachrichten" newspaper about the possible medical applications of RU 486, a drug interrupting pregnancy. Dr. S. summarised briefly the characteristics of RU 486. Inter alia, he considered that RU 486 could have some useful effects, and might also be used as a medicine for treatment of some cancers.         In March 1992 the applicant thereupon sent circular letters to 700 physicians practising in Vorarlberg and to all households in this region. The letter, entitled "RU 486 - cry for help from Vorarlberg - Scandal in the Feldkirch Regional Hospital", dealt with Dr. S.'s views on RU 486.         On 24 April 1992 the Feldkirch Regional Court (Landesgericht), upon Dr. S.'s request for prosecution (Privatanklage) and after having held a hearing, convicted the applicant of defamation (Üble Nachrede) under S. 111 of the Criminal Code (Strafgesetzbuch). The applicant was fined 4,800 AS. In these and the following proceedings the applicant was assisted by Mr. A. Adam.         The Court noted that the applicant, referring to the letter published by Dr. S., had called him in his circular letters inter alia a "Supporter of homicides" (Tötungsbefürworter) and a fighter for the "Deathpill". He furthermore had urged Dr. S. "to stop the homicides at his hospital". The Court considered that Dr. S., by publishing his letter to the editor, only had intended to provide information about the possible medical applications of RU 486. Moreover, Dr. S. clearly had stated in his letter that he would strongly object to RU 486's introduction in Austria, if it were just an "abortion-pill".         The Court held that these disparaging statements accused Dr. S. of having a contemptible character and of having offended common decency. Thus, he was considerably lowered in the circular letter's reader's esteem.         With regard to the applicant's requests to have witnesses examined on the features of RU 486, the Court considered that the designation of Dr. S. as a "Supporter of homicides" was independent of RU 486's characteristics. It thus held that the evidence suggested by the applicant was of no relevance to the question of the applicant's guilt.         On 6 August 1992 the Innsbruck Court of Appeal (Oberlandes- gericht) confirmed the findings of the Regional Court and dismissed the applicant's appeal (Berufung) and his plea of nullity (Nichtigkeits- beschwerde).         The Court considered in particular that the applicant's statements were not covered by the right to freedom of expression. Furthermore, the refusal to have evidence and witnesses examined did not restrict the rights of the defence, as these requests were unable to prove Dr. S.'s alleged contemptible character.         The decision was served on the applicant on 16 November 1992.   B.     Relevant domestic law         S. 111 of the Austrian Criminal Code (Strafgesetzbuch), which deals with the offence of defamation, provides as follows:         "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 not be liable if circumstances are established which       gave him sufficient reason to assume that the statement was       true."     COMPLAINTS         The applicant complains under Article 10 of the Convention about a violation of his right to freedom of expression. He further complains under Article 6 of the Convention that the Courts rejected evidence proposed by him and refused to hear the witnesses on his behalf.   THE LAW   1.     The applicant complains under Article 10 (Art. 10) of the Convention that his conviction for defamation amounted to a violation of his right to freedom of expression.         Article 10 (Art. 10) of the Convention, as far as relevant, provides 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 ...         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 Commission finds that the applicant's conviction of defamation by the Feldkirch Regional Court, as confirmed upon appeal, constituted an interference with the exercise of his freedom of expression. Such interference is in breach of Article 10 (Art. 10), unless it is prescribed by law and necessary in a democratic society for one of the aims mentioned in paragraph 2 of this provision.         The Commission finds that applicant's conviction was based on S. 111 of the Austrian Criminal Code, and thus prescribed by Austrian law. The Commission also considers that the measure was aimed at protecting "the reputation or rights of others", namely of Dr. S., the physician criticised by the applicant, which is a legitimate aim under Article 10 para. 2 (Art. 10-2).         It remains thus to be determined whether the interference was "necessary in a democratic society". In this respect, the Commission recalls that the adjective "necessary" within the meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a "pressing social need". The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision (Eur. Court H.R., Observer and Guardian judgment of 26 November 1991, Series A No. 216, pp. 29-30, para. 59).         The Commission notes that the applicant was convicted of defamation because he had, in a circular letter distributed to several physicians and all households in the Region of Vorarlberg, inter alia called Dr. S. "Supporter of homicides". With his circular letter, the applicant had reacted to Dr. S.'s letter to the editor published in the Vorarlberger Nachrichten, where Dr. S. had provided information about the possible medical applications of RU 486.         The Courts found that the applicant's statements in this circular letter were of a disparaging nature and lowered Dr. S. in its reader's esteem.         The Commission finds that the subject of both publications related to a matter of general interest. However, the Commission, having regard to the wording of the applicant's statements on Dr. S. and further to the procedure chosen to disseminate these statements in a circular letter in the Vorarlberg region, finds that the applicant's interest in criticising the drug RU 486 and its applications, including Dr. S.'s comments in this respect, does not outweigh this third person's right to have his reputation protected against being disparaged in public.         In these circumstances, the interference complained of can be reasonably regarded as "necessary in a democratic society" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.         Accordingly, there is no appearance of a violation of the applicant's right under Article 10 (Art. 10) of the Convention.         This part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant further complains under Article 6 (Art. 6) of the Convention that the Courts rejected the proposed evidence and refused to hear the witnesses on his behalf.         The Commission recalls that Article 6 (Art. 6) of the Convention does not give an absolute right to the examination of every witness or evidence proposed by the defence (Eur. Court H.R., Engel and others judgment of 6 June 1976, Series A no. 22, p. 38, para. 91; Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89). In particular a court is justified in refusing to summon witnesses when it considers that their statements could not be of any relevance to the case (No. 10486/83, Dec. 9.10.86, D.R. 49, p. 86).         In the present case, the applicant proposed to take evidence and to examine witnesses on the question of the features of RU 486, requests which, as the Innsbruck Court of Appeal confirmed, could not clarify the issue of the applicant's guilt.         Thus, the Commission finds no indication that the Feldkirch Regional Court, by rejecting the applicant's proposals, failed to consider relevant evidence or acted in an arbitrary and unfair manner.         It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)