CEDH · CASELAW;CLIN;ENG — 23 mai 1991

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Austria (no. 1) - 11662/85 Judgment 23.5.1991 Article 10 Journalist's conviction for defamation of a politician: violation [This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.] I.   PRELIMINARY OBJECTION Government plea that application lodged out of time: – as regards main complaints under Article 6 §   1 and Article 10 of the Convention, application was posted within the six-month time-limit; – as regards complaint concerning rectification of the trial record, period runs, for procedural decisions of kind involved, only from same date as is relevant with regard to the final decision on the merits. Conclusion : Preliminary objection rejected (unanimously). II.   ARTICLE 6 § 1 OF THE CONVENTION A.   Proceedings before the Vienna Regional Court No reason to examine complaint concerning refusal to rectify trial record, which not pursued before the Court. Regional Court's finding that it was bound by previous Court of Appeal decision, although contrary to domestic law, did not of itself violate the Convention: its conclusion that applicant guilty was fully-reasoned and upheld on appeal. B.   Proceedings before the Vienna Court of Appeal Court of Appeal composed of same judges as had sat in a first set of proceedings in the same case – applicant's complaints that it was not "impartial" and not "established by law" coincide in substance – domestic rule forbidding participation of those judges in the second set of proceedings manifests legislature's concern to remove all reasonable doubts as to impartiality – applicant's appeal accordingly heard by a tribunal whose impartiality national law recognised to be open to doubt. Waiver of the right to an impartial tribunal not established – neither applicant nor his counsel were aware at the time that all three appeal judges had also participated in the first set of proceedings. Conclusion : violation as regards the Court of Appeal, but not as regards the Regional Court (unanimously). III.   ARTICLE 10 OF THE CONVENTION Not disputed that interference with applicant's freedom of expression was "prescribed by law" and had legitimate aim of protecting the reputation or rights of others. A.   General principles as to "necessity" of the interference Freedom of expression constitutes an essential foundation of a democratic society and a condition for its progress and for each individual's self-fulfilment – Article 10 protects not only the substance of ideas and information but also their form. Task of the press is to impart information and ideas on political issues and other matters of general interest. Freedom of the press affords the public one of the best means of discovering and forming an opinion on ideas and attitudes of political leaders. Limits of acceptable criticism are wider with regard to a politician than in relation to a private individual – former must display greater tolerance, especially when making public statements susceptible of criticism – requirements of protection of his reputation have to be weighed against interests of open discussion of political issues. Necessity of the interference to be assessed by considering the impugned judicial decisions in the light of the case as a whole, including the publication in issue and its context. B.   Application of these principles Applicant's publication (reproducing in a review a criminal information laid against a politician) contributed to a public debate on a political question of general importance, namely the different treatment of nationals and foreigners in the social field; it sought to draw the public's attention in a provocative manner to proposals, made by a politician during an election campaign, which were likely to shock many people. The relevant court decisions required the applicant to prove the truth of his allegations – the truth of the facts relied on was undisputed but the allegations were value-judgments – requirement of proving truth of value-judgments was impossible of fulfilment and itself infringed freedom of opinion – applicant had not exceeded the limits of freedom of expression by choosing the particular form of publication. Conclusion : violation (sixteen votes to three) IV.   ARTICLE 50 OF THE CONVENTION A.   Rehabilitation of the applicant, setting aside of the judgment and annulment of seizure of relevant issue of the review: Court not empowered to direct the Austrian State to take such measures. B.   Pecuniary damage: – applicant entitled to recover fine imposed and costs awarded against him in domestic proceedings, having regard to their direct link with the violation; – no award of compensation for seizure of the relevant issue and cost of publishing information about the defamation proceedings, as damage sustained by the owners of the review. C.   Non-pecuniary damage: findings of violation constitute sufficient just satisfaction. D.   Costs and expenses before the national courts and the Convention institutions – amounts sought appear reasonable: reimbursement ordered. Conclusion : Respondent State to pay specified sums to the applicant for pecuniary damage and for costs and expenses (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes