CEDH · CASELAW;REPORTS;ENG — 29 novembre 1995

.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                                FIRST CHAMBER                          Application No. 20834/92                             Gerhard Oberschlick                                   against                                   Austria                          REPORT OF THE COMMISSION                        (adopted on 29 November 1995)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 16-32). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 16-29) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (paras. 30-32) . . . . . . . . . . . . . . . . . . . . . 6   III.   OPINION OF THE COMMISSION       (paras. 33-47). . . . . . . . . . . . . . . . . . . . . . . . 7         A.    Complaint declared admissible            (para. 33) . . . . . . . . . . . . . . . . . . . . . . . 7         B.    Point at issue            (para. 34) . . . . . . . . . . . . . . . . . . . . . . . 7         C.    Article 10 of the Convention            (paras. 35-46) . . . . . . . . . . . . . . . . . . . . . 7              CONCLUSION            (para. 47) . . . . . . . . . . . . . . . . . . . . . . . 9   APPENDIX :        DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF THE APPLICATION . . . . . . . . .10   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 applicant is an Austrian citizen, born in 1942 and resident in Vienna.   3.     The application is directed against Austria.   The respondent Government were represented by their Agent, Mr. F. Cede, Ambassador, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   4.     The case concerns the applicant's conviction of having insulted a politician.   The applicant alleges violation of his right to freedom of expression and invokes Article 10 of the Convention.   B.     The proceedings   5.     The application was introduced on 15 September 1992 and registered on 23 October 1992.   6.     On 2 March 1994 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.     The Government's observations were submitted on 16 June 1994 after one extension of the time-limit fixed for this purpose.   The applicant replied on 29 August 1994 after one extension of the time-limit.   8.     On 6 April 1995 the Commission declared admissible the applicant's complaint under Article 10 of the Convention.   It declared inadmissible the remainder of the application.   9.     The text of the Commission's decision on admissibility was sent to the parties on 26 April 1995 and they were invited to submit such further information or observations on the merits as they wished.   No such observations were submitted.   10.    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   11.    The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL   12.    The text of this Report was adopted on 29 November 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.    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.   14.    The Commission's decision on the admissibility of the application is annexed hereto.   15.    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   16.    The applicant, a journalist, was at the relevant time editor of the periodical "Forum" - "Internationale Zeitschrift für kulturelle Freiheit, politische Gleichheit und solidarische Arbeit", i.e. an international magazine for cultural freedom, political equality and solidarity.   17.    On 7 October 1990, on the occasion of a "peace-celebration" at the Ulrichsberg, Mr. Haider, leader of the Austrian Freedom Party (FPÖ) and then Regional Governor (Landeshauptmann) of Carinthia, gave a speech which glorified the role of the "generation of soldiers" in World War II.   According to Mr. Haider, all soldiers, even those in the German army, had fought for peace and freedom.   Thus, nobody should differentiate between "good" and "bad" soldiers of this generation, but should rather be grateful to all of them, as they had founded and built today's democracy and affluent society.   He then criticized an Austrian writer, who had provoked anger for having, in his eyes, disparaged all those killed in World War II.   In this speech he then continued:   <German>         "Meine Damen und Herren, geistige Freiheit ist in einer Demo-       kratie etwas Selbstverständliches, aber sie findet dort ihre       Grenzen, wo Menschen jene geistige Freiheit in Anspruch nehmen,       die sie nie bekommen hätten, hätten nicht andere für sie den Kopf       hingehalten, daß sie heute in Demokratie und Freiheit leben       können."   <Translation>         "Ladies and Gentlemen, freedom of opinion is taken for granted       in a democracy, but it finds its limits where people lay claim       to that freedom who never would have got it, if others had not       risked their heads for them so that they may now live in       democracy and freedom."   18.    This speech was reproduced verbatim in the applicant's periodical and commented on by the applicant, and, inter alia, the aforementioned Austrian writer.   The applicant's commentary, entitled "P.S.: 'Trottel' statt 'Nazi'" ("P.S.: 'Idiot' instead of 'Nazi'"), which was reproduced at the end of the speech, reads as follows:   <German>         "Ich werde Jörg Haider erstens keinen Nazi nennen, sondern       zweitens einen Trottel.   Dies rechtfertige ich wie folgt:       Einleuchtend hat L. ... mich überzeugt, daß es Jörg Haider eher       nütze, wenn man ihn einen Nazi nennt.   So bitte ich meine       Freundinnen um Vergebung, daß ich diese Benennung schon aus so       gutem Grund unterlasse.       ...       Da er uns anderen, die das in seinen Augen legitimierende Glück       nicht hatten, im Ehrenkleid des Dritten Reiches für Hitlers       Freiheit zu Raubkrieg und Endlösung den Kopf hinzuhalten,       jegliches Recht abspricht, auch nur eine bloß 'geistige',       geschweige gar eine politische 'Freiheit in Anspruch zu nehmen',       und da er selber nie das Glück gehabt hatte, im Ehrenkleid der       SS oder Wehrmacht dienen zu dürfen, also sich selbst zugleich mit       der überwiegenden Mehrheit der Österreicher von allem       Freiheitsgebrauche ausschließt, ist er in meinen Augen ein       Trottel."   <Translation>:         "I shall call Jörg Haider firstly, not a Nazi, but, secondly, an       idiot.   That I justify as follows:       L. ... convinced me plausibly that it would rather benefit Jörg       Haider if one called him a Nazi.   Thus, I must ask my friends to       forgive my abstaining from using this designation for that very       reason.       ...       As he denies us, who did not have the legitimizing good fortune       to have risked our heads in the Third Reichs' honourable gown for       Hitler's freedom to rapacious war and Final Solution, any right       'to lay claim to freedom', be it only freedom of opinion or even       political freedom, and as he himself never had the good fortune       to have been able to serve in the honourable gown of the SS or       the Wehrmacht, thus at the same time excluding himself along with       the vast majority of Austrians from this exercise of freedom, in       my eyes, he is an idiot."   19.    On 26 April 1991 Mr. Haider brought a private prosecution for defamation (üble Nachrede) and insult (Beleidigung) under Sections 111 and 115 of the Penal Code against the applicant with the Vienna Regional Criminal Court (Landesgericht).   He also applied for an order for the immediate seizure of the relevant issue of Forum and for the publication of information about the institution of proceedings in the applicant's periodical.   20.    On 30 April 1991 the Vienna Regional Criminal Court ordered the applicant to publish in his magazine the requested information about the institution of criminal proceedings against him.   On 21 May 1991 the applicant lodged an appeal against that decision.   21.    On 23 May 1991 the Vienna Regional Criminal Court found the applicant guilty under Section 115 of the Penal Code of having insulted Mr. Haider and sentenced him to 20 daily rates of 200 AS.   The Regional Court held that the word "Trottel" ("idiot") was always an insult and had a disparaging character, and that it therefore could never be used for any objective criticism.   22.    The written judgment, served upon the applicant's counsel on 16 August 1991, further ordered the seizure of the relevant copy of "Forum" according to Section 33 of the Media Act.   23.    On 30 August 1991 the applicant appealed against the Vienna Regional Criminal Court's judgment.   He challenged in particular the proposition that the term idiot was as such an insult which could be used but for disparaging purposes.   He also criticized the fact that the Vienna Regional Criminal Court had not had regard to the context in which the statement had been made.   He emphasized that his comment was appropriate in view of the threat which Mr. Haider's ideas constituted for the freedom of opinion, having regard to the fact that he had made the speech in his capacity as the Regional Governor of Carinthia.   The applicant further requested the transcript of the court hearing to be completed and rectified, as it did not contain all relevant items of the trial.   He finally complained that the order of the seizure had not been delivered at the oral hearing.   24.    On 18 October 1991 the Vienna Regional Criminal Court rectified parts of the transcript of the court hearing and rejected the further amendments requested by the applicant as irrelevant.   On 10 December 1991 the applicant filed an appeal against that decision.   25.    On 5 December 1991 the Vienna Regional Criminal Court rectified its judgment and deleted the order concerning the seizure of the relevant copies of "Forum".   26.    On 18 March 1992 the Vienna Court of Appeal dismissed the applicant's appeal of 21 May 1991 against the order to publish an information about the institution of criminal proceedings.   It also rejected the appeal lodged on 10 December 1991 as no appeal lay against a decision on the rectification of the transcript of a court hearing.   27.    On 25 March 1992 the Court of Appeal confirmed the judgment of the Regional Criminal Court, but reduced the amount of the fine to 20 daily rates of 50 AS.   28.    In its reasoning, the Court referred to the perception of the impugned commentary by the average reader of "Forum".   It accepted that if he had first read the speech of Mr. Haider and the article of the criticized writer, the average reader would have been able to follow the applicant's analysis, namely that Mr. Haider excluded the vast majority of Austrians including himself from all exercise of freedom of thought, and the applicant reproaching Mr. Haider with the term of "Trottel" ("idiot").   However, this reproach could not be comprehensible to those readers of the periodical who had not read Mr. Haider's speech, but were only attracted by the title "P.S.:'Trottel' statt 'Nazi'" ("P.S.: 'Idiot' instead of 'Nazi'") of the applicant's column.   According to the Vienna Court of Appeal, it would only have been acceptable to describe the content of Mr. Haider's speech as "idiotic" ("vertrottelt").   It was true that the applicant's opinion had been toned down by the subsequent statement of the reasons why Mr. Haider was considered a "Trottel" ("idiot").   However, the title of the column expressed the applicant's opinion too literally, and thus did not remain within its intended context.   Moreover, the fact that Mr. Haider himself frequently resorted to insults and swearwords in political discussions was irrelevant.   Thus, the emphatic use of the term "Trottel" ("idiot") no longer constituted harsh, but acceptable, criticism of Mr. Haider's opinion or conduct, but was merely a disparaging personal attack which overstepped the limits of acceptable criticism.   29.    The Court of Appeal also held that the applicant's comment could not be justified by Article 10 of the Convention, as allowing such statements would lower the level of political culture in Austria.   Nor could the insult be justified by Section 115 para. 3 of the Penal Code, as the applicant had not been personally insulted or provoked beforehand by Mr. Haider.   B.     Relevant Domestic Law   30.    Section 111 of the Austrian Penal Code deals with the offence of defamation ("üble Nachrede") and, as far as relevant, reads 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."         "(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."   31.    Section 115 of the Penal Code deals with the offence of insult ("Beleidigung) and reads as follows:         "(1) Anyone who, in public or in the presence of several others,       insults, mocks, mistreats or threatens with ill-treatment a third       person, shall be liable to imprisonment not exceeding three       months or a fine not exceeding 180 daily rates, unless he might       be punishable with a more severe penalty under a different       provision."         "(3) Any person who, outraged at the behaviour of a third person,       lets himself get carried away into insulting, mistreating or       threatening the third person with ill-treatment in a way which       is defensible in the circumstances, has a defence, if his outrage       is generally understandable, especially having regard to the time       having passed since then."   32.    According to the relevant provisions of the Media Act, the person who has been defamed may request the forfeiture and seizure of the publication by which the media offence has been committed (Section 33 and 36).   Under Section 37 of the Media Act it may also be requested that an information about the institution of criminal proceedings be published.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   33.    The Commission has declared admissible the applicant's complaint that his conviction of insult by the Austrian courts violated his right to freedom of expression.   B.     Point at issue   34.    The only point at issue is whether there has been an unjustified interference with the applicant's right to freedom of expression as guaranteed by Article 10 (Art. 10) of the Convention.   C.     Article 10 (Art. 10) of the Convention   35.    The applicant complains under Article 10 (Art. 10) of the Convention that his conviction for insult pursuant to Section 115 of the Austrian Penal Code violated his freedom of expression.   36.    Article 10 (Art. 10), so far as relevant, 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 ..."         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, ... ."   37.    The applicant submits that his conviction was a disproportionate measure not justified under paragraph 2 of Article 10 (Art. 10) of the Convention.   The Government's argument that the use of a vulgar or swear word always constitutes an insult punishable under Section 115 of the Austrian Penal Code is untenable as regard must be had to the context in which a certain expression is used.   In the circumstances of the present case the use of a strong word was the only appropriate description of Mr. Haider's conduct and in his article he had also explained why.   Moreover, resort to this strong expression was necessary to stimulate a public discussion of the highly problematic public speech Mr. Haider had given.   His conviction was therefore a disproportionate measure violating Article 10 (Art. 10) of the Convention.   38.    The Government admit that the applicant's conviction interfered with his right to freedom of expression under Article 10 para. 1 (Art. 10-1) of the Convention, but contend that this interference was justified under paragraph 2 of Article 10 (Art. 10-2).   It was prescribed by law, namely Section 115 of the Penal Code, and necessary for the protection of the reputation of others and for maintaining an orderly climate of discussion in a democracy.   The measure at issue was also in proportion to the aim pursued.   In the article at issue the applicant called Mr. Haider a "Trottel" ("idiot"), which in Austrian usage is a gross, vilifying insult.   Such an insult can under no circumstances express objective criticism of the opinion or conduct of the person against whom it is directed but only constitutes a personal attack treating in an unfair manner the attacked person with contempt. There was also nothing like an insult on justified grounds as the applicant seems to believe.   Rather, an insult is only excusable as an immediate reaction to a personal attack which, however, was not the applicant's case.   Having also regard to the lenient sentence imposed on the applicant, the Austrian courts did not overstep the margin of appreciation afforded to Contracting States under paragraph 2 of Article 10 (Art. 10-2) of the Convention.   39.    The Commission considers that there was interference by public authority with the applicant's right to freedom of expression.   Such interference is in breach with Article 10 (Art. 10) of the Convention, if it was not justified under paragraph 2 of Article 10 (Art. 10-2), namely prescribed by law and necessary in a democratic society for one of the aims mentioned in this paragraph.   40.    The Commission notes that the applicant's conviction was prescribed by law, namely by Section 115 of the Austrian Penal Code, and was aimed to protect the reputation and the rights of others, a legitimate aim under Article 10 para. 2 (Art. 10-2) of the Convention. It remains to be examined whether the applicant's conviction was "necessary in a democratic society".   41.    The Commission recalls that the adjective "necessary" within the meaning of Article 10 (Art. 10) implies the existence of a "pressing social need".   The Contracting States enjoy a certain margin of appreciation in determining whether such a need exists, but this goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court.   Freedom of expression is one of the basic conditions for a democratic society's progress, and is also applicable to "ideas" that offend, shock or disturb.   Furthermore, the press, in a democratic society, has the task to impart information and ideas on matters of public interest, and plays thereby a role of "public watchdog" (Eur. Court H.R., Sunday Times (no. 2) judgment of 26 November 1991, Series A no. 217, p. 29, para. 50).   As far as ideas and attitudes of political leaders are concerned, the limits of acceptable criticism are wider than as regards a private individual. However, the press must not overstep the bounds set, inter alia for "the protection of the reputation of others" (Eur. Court H.R., Lingens judgment of 8 July 1986, Series A no. 103, p. 26, para. 41 and 42; Oberschlick judgment of 23 May 1991, Series A no.204, p.25-26, paras. 58-59).   42.    In the present case the applicant was convicted by the Vienna Regional Criminal Court of having publicly insulted Mr. Haider by calling him a "Trottel" ("idiot") in an article published in "Forum" of 19 January 1991.   This conviction was upheld by the Vienna Court of Appeal which found that in this article the applicant had criticised Mr. Haider's speech and pointed to logical consequences of the speech which could indeed be described as "idiotic".   However, in the Court's view the emphatic use of the term "Trottel" ("idiot"), in particular in the headline, no longer constituted harsh, but acceptable, criticism of Mr. Haider's opinion or conduct, but was merely a disparaging personal attack which overstepped the limits of acceptable criticism.   43.    The Commission finds that in general the use of language which is in itself insulting needs not to be accepted by the person to whom it is addressed and that a conviction by a court of insult may thus be in conformity with Article 10 (Art. 10) of the Convention. However, in exceptional circumstances a statement which could be considered as insulting may be justified or at least excusable.   An example for such exceptional circumstances in which an insulting remark should not lead to punishment is given in Section 115 para. 3 of the Austrian Penal Code.   44.    The Commission therefore finds that the article written by the applicant and his conviction for having insulted the leader of the Austrian Freedom Party (FPÖ) has to be seen against the background of the public speech by Mr. Haider, from which it followed that freedom of expression and opinion should only be granted to those who had fought in World War II including in the German army 'for freedom and peace'.   Thus, the impugned statement did not refer exclusively to Mr. Haider as a person, but more to his ideas about restricting freedom of opinion.   As the Vienna Court of Appeal also pointed out, the qualification of Mr. Haider's opinion by the applicant, though harsh, did not lack any factual basis.   The applicant's criticism of Mr. Haider's statements indeed sought to draw the public's attention in a provocative manner to a statement made by a politician which was likely to shock many people.   A politician who expresses himself in such terms exposes himself to a strong   reaction on the part of journalists and the public (see Eur. Court H.R., Oberschlick judgment, loc. cit., p. 27, para. 61). The difference drawn in this respect by the Court of Appeal between an admissible critique by describing Mr. Haider's speech as "idiotic" and a punishable insult by calling Mr. Haider an "idiot" appears rather artificial.   45.    The Commission furthermore does not find convincing the Court of Appeal's argument that only an attentive reader, who would also read Mr. Haider's speech, printed immediately before the applicant's article, could follow the applicant's reasoning and thus would not take the expression "idiot" as a mere personal insult, while a superficial reader would do so.   Moreover, such a mere risk does not appear sufficient to justify the interference with the applicant's right of freedom of expression.   46.    The Commission therefore finds that the applicant's conviction does not appear proportionate and falls outside the margin of appreciation left to the national authorities.         CONCLUSION   47.    The Commission concludes, by 14 votes to 1, that in the present case there has been a violation of Article 10 (Art. 10) of the Convention.   Secretary to the First Chamber          President of the First Chamber        (M.F. BUQUICCHIO)                          (C.L. ROZAKIS)