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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> SCHWABE v. AUSTRIA - 13704/88 [1992] ECHR 56 (28 August 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/56.html
Cite as: [1992] ECHR 56
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In the case of Schwabe v. Austria*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention")** and the
relevant provisions of the Rules of Court, as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr J. De Meyer,
Mr S.K. Martens,
Mr R. Pekkanen,
Mr J.M. Morenilla,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 28 February and 24 June 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 46/1991/298/369. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation and on
the list of the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on
1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 8 March 1991, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 13704/88) against the Republic of Austria lodged
with the Commission under Article 25 (art. 25) by an Austrian
citizen, Mr Karl Thomas Uwe Schwabe, on 1 February 1988.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Austria
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as
to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 10 (art. 10) of
the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30). The President gave them
leave to use the German language during the proceedings (Rule 27
para. 3).
3. The Chamber to be constituted included ex officio
Mr F. Matscher, the elected judge of Austrian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 22 March 1991
Mr Matscher, having been duly delegated by the President, drew by
lot, in the presence of the Registrar, the names of the other seven
members, namely Mr J. Cremona, Mr Thór Vilhjálmsson,
Mr F. Gölcüklü, Mr J. De Meyer, Mr N. Valticos, Mr R. Pekkanen and
Mr J.M. Morenilla (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43). Subsequently, Mr S.K. Martens,
substitute judge, replaced Mr Valticos who was unable to take part
in the further consideration of the case (Rules 22 para. 1 and 24
para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Austrian Government ("the Government"), the Delegate of the
Commission and the applicant on the organisation of the procedure
(Rules 37 para. 1 and 38). Pursuant to the resulting orders and
instructions, the Registrar received the memorial of the applicant
and the memorial of the Government on 23 and 31 July 1991,
respectively. On 11 September the Secretary to the Commission
informed the Registrar that the Delegate would submit his
observations at the hearing and on 28 January 1992 he submitted
various documents at the Registrar's request.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
24 February 1992. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr H. Türk, Ambassador,
Legal Adviser,
Ministry of foreign Affairs, Agent,
Mr S. Rosenmayr, Federal Chancellery,
Mr S. Benner, Federal Ministry of Justice, Advisers;
(b) for the Commission
Mr M.P. Pellonpää, Delegate;
(c) for the applicant
Mr W. Brunner, Rechtsanwalt, Counsel.
The Court heard their addresses, as well as their replies to
its questions.
AS TO THE FACTS
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
6. Mr Schwabe is an Austrian citizen residing at St Andrä. At
the relevant time, he was Chairman of the Young Austrian People's
Party (Junge Österreichische Volkspartei, ÖVP) for the District of
Wolfsberg in Carinthia and councillor (Gemeinderat) of St Andrä.
A. The applicant's press release and its background
7. In December 1984 Mr Tomaschitz, Mayor of Maria Rain in
Carinthia and a member of the ÖVP, was convicted of negligently
causing bodily harm (fahrlässige Körperverletzung) and of
abandoning the victim (Imstichlassen eines Verletzten) of a traffic
accident whilst under the influence of alcohol (at least 1.75 per
mille). He was sentenced to four months' imprisonment.
8. The question whether the Mayor should resign because of his
conviction later became the subject of discussion in political
circles and the press in Carinthia.
On 13 August 1985 the Carinthian newspaper Kleine Zeitung
published an article headed "If Tomaschitz doesn't think it over,
we will". That article quoted from an interview with the Head of
the Provincial Government, Mr Wagner, who was the Chairman of the
Carinthia branch of the Austrian Socialist Party (Sozialistische
Partei Österreichs - SPÖ), about the question whether the Mayor
should resign or not. Mr Wagner stated that, although an accident
of the kind in question could happen to anybody, it was not
acceptable that a person who had acted in such a way should remain
in public office. He continued: "I do not intend to take part in
a witch hunt, but after a period of reflection Tomaschitz ought to
realise that he must resign". According to Mr Wagner, however,
that was primarily a matter for the ÖVP. He nevertheless concluded
by saying that if Mr Tomaschitz would not think it over, the
Regional Supervisory Authority (Gemeindeaufsicht des Landes) would.
9. On 19 August 1985 Mr Schwabe issued a press release by way of
reply to that article and sent it to several Carinthian newspapers.
On 20 August the Kleine Zeitung published a summary, headed
"Looking after morality in the SPÖ". A complete version of the
release appeared on the same day in the Neue Volkszeitung (an ÖVP
newspaper), under a headline "Different standards?" (Zweierlei
Maß?). It read:
"Councillor Karl Schwabe, Chairman of the Young ÖVP for the
Wolfsberg District, stated in a broadcast that, after being
convicted for leaving the scene of an accident without
reporting it, Josef Tomaschitz, the Mayor of Maria Rain and a
member of the ÖVP, would unquestionably have to resign.
However, he added that Mr Wagner, the Head of the Carinthian
Government, did not have the slightest moral right to attack
Mayor Tomaschitz for his refusal to resign. Mr Wagner had
known for years that his Deputy, Erwin Frühbauer, had caused
an accident on 10 July 1966 at Scheifling (Styria) while under
the influence of alcohol (im alkoholisierten Zustand). The
accident had left two children fatherless. One could not help
feeling that the Head of the Carinthian Government applied
stricter standards to a 'small mayor of a village', who was a
member of another political party, than to his 'party friend'
and Deputy, Frühbauer. Schwabe concluded that Wagner's
credibility would be enhanced if he were to provide, within
the SPÖ, for the political morals which he requires of
others."
10. The applicant had based his press release on an article that
had appeared in the Viennese magazine Profil on 9 March 1984. It
referred to the circumstances of Mr Frühbauer's car accident in
1966, in which a man had died and other persons had been injured,
and contained the following passage:
"...
Erwin Frühbauer was found to have a blood alcohol content of
0.8 per mille. That was the limit.
Less than a year later, on 31 May 1967, Frühbauer, whose
immunity as a Member of Parliament had been lifted, was
sentenced by the Leoben Regional Court to a prison term of six
months, suspended for three years, for negligent homicide.
There was no conviction for intoxication (Alkoholisierung).
Jurists are still guessing at the reasons because, according
to Article 5 para. 1 of the 1960 Road Traffic Code, impairment
by intoxication is presumed 'at 0.8 per mille or more'.
Be that as it may. I do not want (and the criminal law does
not allow me) to reproach Frühbauer with his conviction at
that time. After all, no one is immune from being similarly
involved in a traffic accident.
My accusation is a political one. When Frühbauer was
appointed Transport Minister by Kreisky in 1970, he kept quiet
about his conviction, or at least about the fact that at that
time he still had a criminal record (noch vorbestraft war).
In fact on 31 May 1967, the date of the judgment, the
three-year period of suspension of his sentence began to run.
Six weeks before the end of that period, on 21 April 1970,
Mr Frühbauer was appointed Transport Minister but he continued
to have a criminal record for a long time afterwards, because
of the period which was then applicable with regard to the
cancellation of such records. He was thus, to my knowledge,
the only Minister of the Second Republic to have a criminal
record ..."
The applicant had verified the contents of the Profil article
in a telephone conversation with its author. Furthermore, he had
taken into account the judgment of 31 May 1967 of the Leoben
Regional Court (Kreisgericht). In determining sentence, that court
had regarded as an aggravating circumstance the fact that the
accused had been driving after consuming alcohol in an amount that
brought him close to the level at which a driver was presumed to be
intoxicated (Alkoholisierung, 0.8 per mille).
B. Criminal proceedings against Mr Schwabe
1. Before the Klagenfurt Regional Court
11. On 4 September 1985 Mr Frühbauer requested the Klagenfurt
Regional Court (Landesgericht, "the Regional Court") to initiate a
preliminary investigation against Mr Schwabe. After completion of
the investigation, Mr Frühbauer brought a private prosecution under
Article 111 paras. 1 and 2 and Article 113 of the Criminal Code
(see paragraphs 18 and 19 below).
12. On 26 September 1986 the applicant was convicted of defamation
(Article 111 paras. 1 and 2 of the Criminal Code) and of having
reproached a person with an offence for which he had already served
his sentence (Article 113). The penalty imposed was a fine of
3,000 schillings or, in default of payment, thirty days'
imprisonment. The Regional Court also ordered the seizure of the
relevant issue of the Neue Volkszeitung and the publication of its
judgment and awarded to Mr Frühbauer compensation of 10,000
schillings, to be paid by the owners of the newspaper. In
addition, the latter were declared to be jointly and severally
liable for the payment of the fine and the complainant's costs.
After reciting the relevant facts, the Regional Court
concluded that, contrary to Article 113, Mr Schwabe had reproached
Mr Frühbauer with a conviction, relating to a traffic accident,
that dated back about twenty years. Furthermore, his statement
that the complainant was under the influence of alcohol and his
comparison of the accident in question with Mr Tomaschitz's, in
addition to his criticism of the complainant for lacking political
morals, amounted to defamation.
13. According to the Regional Court, Article 113 was primarily
aimed at securing the reintegration of criminal offenders, but it
was applicable irrespective of whether or not reproaching them with
a previous conviction jeopardised that reintegration.
Mr Schwabe had not been obliged under Article 114 para. 2 of
the Criminal Code (see paragraph 18 below) to make the impugned
statement. The fact that a political party felt embarrassed about
a car accident of one of its officials was not an excuse for
"digging out" a very old accident of an official of the opposite
party. Moreover, the applicant had not been under a duty to reply
to a political opponent, since Mr Wagner's criticisms were
addressed to Mayor Tomaschitz and not to him. In particular,
Mr Schwabe, the Chairman of a small district organisation, did not
need to react by defaming a third person.
14. In the Regional Court's view, moreover, it was not open to the
applicant to plead that his allegation that Mr Frühbauer had been
driving under the influence of alcohol was correct. The man in the
street would conclude from such a statement that the latter - like
Mr Tomaschitz - had had a blood alcohol content of more than 0.80
per mille at the time of the accident. In fact, a lower level was
tolerated by the legislature and the public, and the applicant had
not mentioned that the complainant had not been convicted of
drunken driving (in alkoholbeeinträchtigtem Zustand).
Neither could Mr Schwabe maintain that he had intended to
refer to a blood alcohol content lower than 0.8 per mille. The aim
of his press release had been to put both accidents in moral terms
on an equal footing, which would entail the same consequence,
namely the resignation of the two officials concerned. That,
together with the title of the article, "Different standards?",
could have led the reader to believe that the complainant's blood
alcohol content had also attained the forbidden level at the time
of his accident.
The defendant also could not claim that his press release had
been directed not against Mr Frühbauer, but against Mr Wagner. It
was true that the criticism relating to a lack of political morals
had been primarily aimed not at the latter, who was responsible in
principle for the political morals of the SPÖ, but at the former,
who had not resigned after his accident. However, that particular
allegation could not in itself constitute defamation, since a
politician had to be tolerant in this respect; what was decisive in
the present case was the comparison of the two accidents from a
moral point of view.
In respect of this defamation too, the applicant could not
rely on Article 114 para. 2 of the Criminal Code, because, as he
had or should have been aware, the impugned statement had been
incorrect. Furthermore, in the present case proof of good faith
(Article 111 para. 3; see paragraph 18 below) was not relevant,
since the offence had taken place through a publication; neither
was proof of proper journalistic care (section 29 of the Media Act,
Mediengesetz; see paragraph 21 below), since the defendant was not
a journalist. As to proof of truth, the Regional Court considered
evidence given by a witness of Mr Frühbauer's accident in 1966, as
well as the expert opinions submitted in the relevant criminal
proceedings in 1967, and concluded that Mr Schwabe had failed to
prove the truth of his allegations.
2. Before the Graz Court of Appeal
15. On 5 February 1987 the applicant lodged an appeal (Berufung)
against his conviction with the Graz Court of Appeal
(Oberlandesgericht). He submitted in particular that he had
written his press release in the context of a political discussion
and in reply to criticisms by the Head of the Carinthian Government
expressed in respect of a member of the ÖVP and of that party, and
that the release had not been directed against Mr Frühbauer. He
had, accordingly, felt himself obliged to defend his own party and
to inform the public about the Head of the Provincial Government's
political morals and apparent motives. He had then remembered the
1984 Profil article (see paragraph 10 above) and found that the two
accidents raised the same problem, namely whether it was proper for
a person with a criminal conviction to exercise official functions.
He had thought that this question was worth discussing and wanted
to draw the attention of the public to a possible information
lacuna. Finally, he had considered his statement about the
complainant having driven under the influence of alcohol to be
correct, since it was based on the formulation used by the Leoben
Regional Court in its judgment of 31 May 1967 (see paragraph 10
above); and it was also justified in the context of a political
discussion.
16. On 29 April 1987 the Court of Appeal dismissed Mr Schwabe's
appeal.
The court observed that the applicant's statement had clearly
amounted to a reproach concerning a criminal conviction for which
the sentence had already been served, within the meaning of
Article 113 of the Criminal Code. In its view, he had not been
compelled to reply to Mr Wagner. Neither had he been given any
mandate to reply in the name of the ÖVP, nor had he himself been
addressed directly as Chairman of the Young ÖVP or as a member of
the party's executive committee. Someone who by his conduct has
given good reason for criticising him must accept attacks on his
honour to a greater extent than someone who has not. Furthermore,
Mr Frühbauer himself had made no statement which called for
reaction on the part of Mr Schwabe.
The court also upheld the Regional Court's judgment in all
other respects.
17. The judgment was served on the applicant on 4 September 1987.
He thereupon requested the Attorney-General (Generalprokurator) to
file a plea of nullity for the preservation of the law
(Nichtigkeitsbeschwerde zur Wahrung des Gesetzes), with reference,
inter alia, to the right to freedom of expression under Article 10
(art. 10) of the Convention and to the Lingens v. Austria judgment
of 8 July 1986 (Series A no. 103-B).
Mr Schwabe was informed on 27 October 1987 that the Attorney-
General did not intend to take any action.
II. RELEVANT DOMESTIC LAW
A. The relevant provisions of the Criminal Code
18. Article 111 of the Criminal Code provides:
"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."
Under Article 112, "evidence of the truth and of good faith
shall not be admissible unless the person making the statement
pleads the correctness of the statement or his good faith ...".
Under Article 114 para. 1 "conduct of the kind mentioned in
Article 111 ... is justified if it constitutes the fulfilment of a
legal duty or the exercise of a right". Under paragraph 2 of the
same provision "a person who is forced for special reasons to make
an allegation within the meaning of Article 111 ... in the
particular form and manner in which it was 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".
19. Article 113 of the Criminal Code reads as follows:
"Anyone who in such a way that it may be perceived by a third
person reproaches another with having committed a criminal
offence in respect of which the sentence has already been
served, or has been waived or reduced (even if only
conditionally) or in respect of which the sentence has been
provisionally deferred shall be liable to imprisonment not
exceeding three months or a fine ..."
B. The relevant provisions of the Media Act
20. Section 6 of the Media Act provides for the strict liability
of the publisher in cases of defamation; the victim can thus claim
compensation from him. Furthermore, 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 (section 35).
The person defamed may request the forfeiture of the
publication by which a media offence has been committed
(section 33), as well as the publication of the judgment in so far
as this appears necessary for the information of the public
(section 34).
21. Section 29 of the Media Act provides as follows:
"1. A media owner (publisher) or media employee shall not be
punishable for an offence relating to material appearing in
the media, in respect of which proof of truth is admissible,
not only if proof of truth has been brought but also if there
was a predominant public interest in publication and even with
proper journalistic care being applied he had sufficient
grounds for considering the statement to be true. However, in
respect of such an offence relating to a person's private
life, a media owner (publisher) or media employee shall not be
punishable only if the statement is true and directly
connected with public affairs.
2. Such proof is to be received only if the accused relies
thereon. In cases within the first sentence of paragraph 1,
the court must receive proof of truth, if tendered by the
accused and admissible, even if it assumes that the exercise
of proper journalistic care has been proved.
3. If an accused is acquitted only because the conditions
specified in the first sentence of paragraph 1 are met, the
court must, in analogous application of section 34, order
publication of the finding that proof of truth has not been
tendered or has not succeeded, and order that the accused is
to bear the costs of the criminal proceedings including the
costs of such publication.
4. Article 111 para. 3 and Article 112 of the Criminal Code
shall not apply."
PROCEEDINGS BEFORE THE COMMISSION
22. Mr Schwabe applied to the Commission on 1 February 1988 citing
Article 10 (art. 10) of the Convention.
On 11 October 1989 the Commission declared the application
(no. 13704/88) admissible. In its report of 8 January 1991
(Article 31) (art. 31), it expressed the opinion that there had
been a violation of Article 10 (art. 10) (ten votes to six). The
full text of its opinion and of the dissenting opinion contained in
the report is reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: For practical reasons this annex
will appear only in the printed version of the judgment
(volume A242-B of Series A of the Publications of the Court), but
a copy of the Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS MADE TO THE COURT
23. At the hearing on 24 February 1992, the Agent of the
Government requested the Court "to hold in its judgment that the
applicant's right to freedom of opinion under Article 10 (art. 10)
of the Convention has not been violated by his being sentenced to
pay a fine of 3,000 schillings".
For his part, the applicant asked the Court to find that
"Article 10 (art. 10) of the Convention has been violated, and that
the Austrian Republic should therefore pay [the applicant] just
satisfaction of 225,644.62 schillings".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
24. Mr Schwabe alleged that his conviction by the Klagenfurt
Regional Court for defamation and for having reproached a person
with a previous criminal offence had breached Article 10 (art. 10)
of the Convention, which provides:
"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. This Article
shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
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,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime, for
the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the
authority and impartiality of the judiciary."
This allegation was contested by the Government, but was
accepted by the Commission.
25. The sanction complained of clearly constituted an
"interference" with the applicant's exercise of his freedom of
expression, as guaranteed by paragraph 1 of Article 10 (art. 10-1).
This has not been disputed.
Nor was it contested that the interference was "prescribed by
law", namely Articles 111 and 113 of the Criminal Code (see
paragraphs 18 and 19 above), and had a legitimate aim, namely the
protection of "the reputation or rights of others", within the
meaning of Article 10 para. 2 (art. 10-2).
Argument before the Court centred on the question whether the
interference could be regarded as "necessary in a democratic
society".
26. According to the applicant, it should be possible in a
democratic society to refer to previous offences committed by
politicians, even when sentences have been served, suspended or
waived. The aim of Article 113 of the Criminal Code was to secure
the social reintegration of criminal offenders, and Mr Frühbauer
had held public office in Austria for more than twenty-five years
both before and after the press release in question. Furthermore,
it had not been his intention to defame the latter, but rather to
point out that Mr Wagner, the Head of the Carinthian Government,
had no moral entitlement to call for the resignation of Mayor
Tomaschitz after his conviction as a result of a traffic accident.
This was thus a value-judgment.
27. The Government submitted, however, that the requirements of
the protection of an individual's reputation, as provided for in
Articles 111 and 113 of the Criminal Code, should prevail in the
present case. The applicant had given an incomplete account of the
facts and made misleading statements by establishing a connection
between two car accidents which were not comparable. Accordingly,
the Klagenfurt Regional Court had found that he had failed to prove
the truth of his allegations. Furthermore, the subject of the
debate was the Mayor's car accident, and there was no reason why
Mr Schwabe should have referred to another accident which had
occurred many years previously.
28. The Commission, while citing the previous Austrian cases
already decided by the Court (see the Lingens v. Austria judgment
of 8 July 1986, Series A no. 103-B, and the Oberschlick v. Austria
judgment of 23 May 1991, Series A no. 204), observed that in a
democratic society politicians should accept criticism even if it
is based on an "annoying" comparison of two incidents which might
appear far-fetched.
29. The Court will examine this question in the light of the
principles which emerge from its previous case-law (see the
Handyside v. the United Kingdom judgment of 7 December 1976,
Series A no. 24, pp. 22-24, paras. 48-50, the Sunday Times (no. 1)
v. the United Kingdom judgment of 26 April 1979, Series A no. 30,
pp. 35-37, para. 59, and pp. 40-41, para. 65, the above-mentioned
Lingens judgment, Series A no. 103-B, pp. 25-26, paras. 38-42, the
above-mentioned Oberschlick judgment, Series A no. 204, pp. 25-26,
paras. 57-59, the Observer and Guardian v. the United Kingdom
judgment of 26 November 1991, Series A no. 216, pp. 29-30 para. 59,
the Sunday Times (no. 2) v. the United Kingdom judgment of
26 November 1991, Series A no. 217, pp. 28-29, para. 50, and the
Castells v. Spain judgment of 23 April 1992, Series A no. 236,
pp. 22-24, paras. 42-43 and 46).
Where what is at stake is the limits of acceptable criticism
in the context of public debate on a political question of general
interest, the Court, in the exercise of its supervisory function,
has to satisfy itself that the national authorities did apply
standards which were in conformity with those principles and,
moreover, that in doing so they based themselves on an acceptable
assessment of the relevant facts (see the above-mentioned
Oberschlick judgment, Series A no. 204, p. 26, para. 60).
For this purpose the Court will consider the impugned judicial
decisions in the light of the case as a whole, including the
applicant's publication and the context in which it was written.
30. Mr Schwabe was convicted of defamation for having stated in
his press release of 19 August 1985 that the Deputy Head of the
Carinthian Government had caused a traffic accident in 1966 under
the influence of alcohol. The Klagenfurt Regional Court considered
it decisive that the applicant had compared this accident with the
Mayor's, without mentioning that, unlike Mr Tomaschitz,
Mr Frühbauer had not been convicted of drunken driving. This
omission, according to the Regional Court, could have led the
reader to believe that the accidents were comparable, as far as the
drivers' blood alcohol content was concerned. In this respect, it
held that the applicant had failed to prove the truth of his
allegations (see paragraph 14 above).
31. The Court notes that Mr Schwabe's press release was a reaction
to the interview given by the Head of the Carinthian Government, a
member of the Austrian Socialist Party, suggesting that the Mayor
of Maria Rain, who was a member of the People's Party (the
applicant's party), should resign because of his conviction (see
paragraph 8 above).
It is apparent from the release, when read as a whole, that
the applicant's main concern was to show that Mr Wagner applied
different and stricter standards of political morality to a "small
mayor of a village", belonging to another political party, than to
his "party friend" and deputy (see paragraph 9 above). The
applicant's press release did not try to compare the two traffic
accidents from a legal point of view. It only sought to make a
statement concerning political morality. The reference to the 1966
accident was incidental to this main issue, which was a matter of
public interest.
Even if at the outset, as the Government maintained, neither
the applicant nor Mr Frühbauer was directly involved in the
political discussion, which concerned primarily the Mayor and the
Head of the Provincial Government, the question subsequently
became, following the latter's intervention, a matter of general
debate on political morals between the two rival parties (ÖVP and
SPÖ; see paragraph 8 above).
32. A politician's previous criminal convictions of the kind at
issue here, together with his public conduct in other respects, may
be relevant factors in assessing his fitness to exercise political
functions.
33. The applicant had based his statements concerning the 1966
traffic accident on an article published in the magazine Profil on
9 March 1984, and had verified the facts with the author of that
article (see paragraph 10 above). The applicant's press release
was shorter than that article, and thus gave only an incomplete
account of the circumstances of the accident (see paragraph 9
above). However, it must be noted that the applicant used
substantially the same words as had appeared in the judgment of
31 May 1967 of the Leoben Regional Court. That court considered as
an aggravating circumstance the fact that the politician had
consumed alcohol before the accident (see paragraph 10 above).
34. The applicant's conviction for defamation stemmed, according
to the Austrian courts, from the fact that he failed to prove the
truth of his statement. They interpreted the words "while under
the influence of alcohol", appearing in the press release, as
meaning an alcohol content of 0.8 per mille or more, on the basis
of the comparison made with Mr Tomaschitz's accident (see
paragraph 14 above).
The Court does not, however, consider it established that the
applicant's statement about Mr Frühbauer's alcohol consumption was
misleading. It moreover points out that the two accidents were not
the subject of direct comparison but were mentioned only in
relation to the different attitude of Mr Wagner towards them. It
is significant that the applicant described both accidents in
completely different terms (see paragraph 9 above). He
nevertheless concluded that they had enough features in common to
warrant the resignation of both the politicians concerned.
The impugned comparison thus essentially amounted to a
value-judgment, for which no proof of truth is possible (see, inter
alia, the above-mentioned Oberschlick judgment, Series A no. 204,
p. 27, para. 63). The Court notes in this connection that the
facts on which the applicant based his value-judgment were
substantially correct and his good faith does not give rise to
serious doubts. He cannot be considered to have exceeded the
limits of freedom of expression.
35. It follows from the foregoing that the interference complained
of by Mr Schwabe was not "necessary in a democratic society ... for
the protection of the reputation ... of others".
There has, accordingly, been a violation of Article 10
(art. 10) of the Convention.
II. APPLICATION OF ARTICLE 50 (art. 50)
36. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Pecuniary damage
37. The applicant first claimed the sums corresponding to the fine
imposed (3,000 Austrian schillings), Mr Frühbauer's costs
(32,242.42 schillings) and the compensation awarded to the latter
by the Regional Court (10,000 schillings) in its judgment of
26 September 1986.
38. The first two items are closely related to the violation of
Article 10 (art. 10) found by the Court, and the applicant is, as
the Government agreed, entitled to recover the sum of 35,242.42
schillings under these heads.
On the other hand, the amount of 10,000 schillings awarded to
Mr Frühbauer was to be paid by the owners of the Neue Volkszeitung
(see paragraph 12 above), and the applicant has not shown why he is
entitled to compensation under this head.
B. Non-pecuniary damage
39. The applicant also claimed 50,000 schillings as compensation
for the damage caused to his reputation by his conviction.
The Court considers, however, like the Delegate of the
Commission, that in the circumstances of the case the finding of a
violation contained in this judgment constitutes sufficient just
satisfaction for any prejudice of this kind.
C. Costs and expenses
40. Finally, Mr Schwabe requested the reimbursement of 50,402.20
schillings for his costs and expenses in Austria. Whilst not
objecting to an award in this respect, the Government stated that
they were unable to comment on this claim in the absence of a
detailed statement of costs from the applicant's lawyer.
In the Court's view, however, the amount claimed appears
reasonable and must therefore be awarded in full.
41. As to the costs and expenses before the Convention
institutions, the applicant sought 70,000 schillings in respect of
fees and disbursements and 10,000 schillings for travel expenses
for attending the Court's hearing.
The Government did not object to this claim.
The Court finds the sums sought to be reasonable and,
accordingly, allows them in their entirety.
42. Mr Schwabe is thus entitled to 130,402.20 schillings for his
costs and expenses.
FOR THESE REASONS, THE COURT
1. Holds by seven votes to two that there has been a violation of
Article 10 (art. 10) of the Convention;
2. Holds unanimously that, as regards the non-pecuniary damage
alleged, the present judgment constitutes sufficient just
satisfaction for the purposes of Article 50 (art. 50);
3. Holds unanimously that the Republic of Austria is to pay to
the applicant, within three months, 35,242.42 Austrian schillings
(thirty-five thousand two hundred and forty-two schillings and
forty-two groschen) for pecuniary damage and 130,402.20 Austrian
schillings (one hundred and thirty thousand four hundred and two
schillings and twenty groschen) for costs and expenses;
4. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 28 August
1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the following
separate opinions are annexed to this judgment:
(a) dissenting opinion of Mr Thór Vilhjálmsson;
(b) dissenting opinion of Mr Matscher;
(c) concurring opinion of Mr Martens.
Initialled: R.R.
Initialled: M.-A.E.
DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON
It does not seem to be disputed that the only issue in this case is
whether or not the interference complained of by the applicant was
"necessary in a democratic society".
The facts of the case may be summarised as follows.
In a public interview in August 1985, Mr Wagner, the Head of the
Carinthian Regional Government, expressed the opinion that Mr Tomaschitz,
the Mayor of a town in the region, ought to resign from office. The
reason he gave was that Mr Tomaschitz had recently been convicted for
negligently causing bodily harm when driving under the influence of
alcohol and for abandoning the victim.
The applicant, a politician and a member of the opposition in the
region, issued a press statement in which he said that he agreed with Mr
Wagner as to the resignation. However, he added that Mr Wagner "did not
have the slightest moral right" to attack Mr Tomaschitz as he had known
for years that in July 1966 his own deputy, Mr Frühbauer, had, after
consuming alcohol, caused an accident which "had left two children
fatherless".
The disagreement was not about whether Mr Tomaschitz should resign.
The main point was the applicant's criticism of Mr Wagner's political
morals. The persons involved were surely entitled to express their
opinions, based on value-judgments, on both points. That is not in issue
in the present case. The question is rather whether Mr Frühbauer had,
under the rules on freedom of expression contained in our Convention, to
tolerate being drawn into this debate in the manner described. Whilst
I do not wish to minimise the problem at hand, I have to agree with Judge
Matscher that it is a trivial one. The facts of the case show that what
was involved was a political skirmish which did not call for the special
legal protection that might be appropriate for political debate on
another level.
In my opinion, it is necessary in a democratic society to protect
the reputation of others, as stated in Article 10 para. 2 (art. 10-2).
This rule can be further elaborated on the basis of Article 8 (art. 8).
I find two features of this case to be relevant in this respect.
Firstly, in order to criticise Mr Wagner the applicant made use, in
1985, of an article which had recently appeared in an Austrian magazine
and which related to a conditional sentence imposed in 1966. I am not
in agreement with the majority of the Court when it states, in
paragraph 32 of the judgment, that "a politician's previous criminal
convictions of the kind at issue here ... may be relevant factors in
assessing his fitness to exercise political functions". Without claiming
expertise in criminology, it seems clear to me that twenty-year-old
conditional sentences, even for acts such as those involved here, do not
evidence the moral character of the persons concerned.
Secondly, I agree with the view of the Austrian courts as to the
nature of the allegations contained in the press release issued by the
applicant.
These two points are, in my opinion, of such a nature that the
Austrian courts could convict the applicant without infringing the
Convention. I therefore find no violation in this case.
DISSENTING OPINION OF JUDGE MATSCHER
(Translation)
I begin by noting that this case is a trivial one which does not
deserve a lengthy statement of my views on the scope of Article 10
(art. 10), views which differ in this case from those of the majority
of the Court, who found that there had been a violation of that
provision.
In the context of a political quarrel at a local (or regional)
level between Mr Schwabe, the Chairman of a district section of the
Young Austrian People's Party (Junge ÖVP) and Mr Wagner, the Head of
the Provincial Government (Landeshauptmann) and Chairman of the
Socialist Party (SPÖ) in Carinthia, the former resurrected a case
which was almost twenty years old and concerned Mr Frühbauer, who was
Mr Wagner's deputy and a political friend, but in no way directly
involved in the quarrel. Mr Frühbauer considered that he had been
defamed and brought proceedings against Mr Schwabe. He accused him of
having committed defamation (Article 111 of the Criminal Code) by
stating the facts incorrectly and giving the public a manifestly
erroneous opinion on them; he also accused him of having infringed
Article 113 of the Criminal Code, which imposes criminal liability on
anyone who accuses another person of having committed an offence in
respect of which the sentence has been served (and the conviction long
since spent). As a consequence, the relevant court convicted
Mr Schwabe and imposed a small fine.
While I recognise the importance of freedom of expression and of
the press, in particular in political debate, I consider that this
freedom also has limits and carries with it responsibilities expressly
referred to in Article 10 para. 2 (art. 10-2) of the Convention (an
aspect of the question which appears not to have been accorded great
weight in the Court's reasoning). In my opinion, these limits are
exceeded if someone, even in the course of political debate, quite
unnecessarily and stating the facts incorrectly, defames a politician
who is not in fact personally involved in that debate, and thus
damages his reputation, the offence being all the more serious where
the defamation is committed by means of the media.
As the minority of the Commission rightly observed in their
separate opinion, "it must be acknowledged that what is involved in
the present case is something very different from a major political
debate, which would have justified unfettered freedom of thought".
The majority of the Court considered that the interference with
the applicant's freedom of expression was not "necessary": for my
part, I consider that what he did - and in particular the way in which
he did it - was not necessary either.
CONCURRING OPINION OF JUDGE MARTENS
1. Although I share the conclusion that there was a violation of
Article 10 (art. 10) and although I agree in substance with the
arguments on which this conclusion is based, my approach to this case
has been slightly different from that of the Court. One of the
grounds for my approach is that the applicant's conviction for
defamation was based not only on his failure to prove the truth of
what the Austrian courts assessed as a statement of fact, but also on
their finding that he clearly had intended to defame Mr Frühbauer.
2. As in its Lingens and Oberschlick judgments, the Court makes it
clear in its present judgment that, where the right to freedom of
expression is at stake, there is no room for leaving to the national
courts a margin of appreciation as to the assessment of the relevant
statements, but that it will effect a full review of such assessments.
Rightly so, for such control is indispensable, especially where
freedom of public debate on political issues is at stake.
Misconception of the notion of freedom of expression easily leads to
misconstruction of the relevant statements, particularly by national
courts which see themselves as censor morum, even in public debate on
political issues.
3. My approach to the present case stems from the fact that it
clearly illustrates the danger I have referred to, as well as the need
to review fully all the elements in the national court's assessment.
Unlike the Austrian judges, I think that, from an objective point of
view, there can be no doubt whatsoever that the applicant's press
release constituted mainly and primarily a value-judgment on
Mr Wagner. That value-judgment was based on both a secondary
value-judgment and a statement of fact: the secondary value-judgment
was that Mr Frühbauer had been found guilty of a driving offence
comparable to that committed by the Mayor and, as a consequence,
should also have resigned; the factual statement was that Mr Wagner
was well aware of that, but had allowed a political friend to do what
he claimed the Mayor was not entitled to do.
4. I do not deny that the secondary value-judgment may seem
questionable, especially if one compares the cases of the Mayor and of
Mr Frühbauer from a strictly legal point of view. However, first of
all, the applicant's press release was clearly devoted to comparing
the two cases not from a legal point of view, but merely in terms of
political morals. Secondly, questionable opinions too are protected
under Article 10 (art. 10); that is a very important principle and it
must be upheld.
Nor do I deny that the secondary value-judgment could have been
formulated more carefully so as to avoid the possibility that a reader
might think that Mr Frühbauer too had been convicted for drunken
driving. But, firstly, in the context of the press release, the
opinion expressed about Mr Frühbauer really was secondary and,
secondly, there is an essential difference between lack of care and
intention to defame. Courts which too readily - that is, on the mere
strength of their interpretation of the wording of a statement -
assume such a criminal intention tend to stifle political debate and
thereby violate Article 10 (art. 10).
5. All this makes it clear why the assessments made by the Austrian
courts cannot be accepted. They first took the secondary
value-judgment out of context, making it into a primary statement,
directed against Mr Frühbauer. They then construed the statement as
containing several separate reproaches, notably that of drunken
driving. Finally, they turned what was - in the light of the wording
of the article in Profil - at worst carelessness into malicious
intent.
These assessments show that the Austrian courts completely failed
to appreciate (a) that the statement in question was, objectively
speaking, open to another interpretation; and (b) that, in such a
case, the right to respect for freedom of opinion has the consequence
that a criminal conviction is justified only when there are compelling
grounds - which should not be derived solely from the wording of the
impugned statement - for choosing the interpretation that implies
criminal intent. Such grounds were lacking here.