Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> OBERSCHLICK v. AUSTRIA (No. 2) - 20834/92 [1997] ECHR 38 (1 July 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/38.html
Cite as: 25 EHRR 357, [1997] ECHR 38, [1998] 25 EHRR 357, (1998) 25 EHRR 357
[New search] [Contents list] [Help]
In the case of Oberschlick v. Austria (no. 2) (1),
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 Rules of Court B (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr F. Matscher,
Mr C. Russo,
Mr A. Spielmann,
Mr R. Pekkanen,
Mr J.M. Morenilla,
Mr M.A. Lopes Rocha,
Mr P. Kuris,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 21 March and 25 June 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 47/1996/666/852. 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.
2. Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).
________________
PROCEDURE
1. The case was referred to the Court by an Austrian national,
Mr Gerhard Oberschlick ("the applicant"), on 18 March 1996, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 20834/92) against the Republic of Austria lodged with the
European Commission of Human Rights ("the Commission") under Article 25
(art. 25) by Mr Oberschlick on 15 September 1992.
Mr Oberschlick's application to the Court referred to Article 48
of the Convention (art. 48) as amended by Protocol No. 9 (P9), which
has been ratified by Austria. The object of his application 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 of
the Convention (art. 10).
2. On 28 June 1996 the Court's Screening Panel decided not to
decline consideration of the case and to submit it to the Court for
consideration (Article 48 para. 2 of the Convention) (art. 48-2).
3. In response to the enquiry made in accordance with Rule 35
para. 3 (d) of Rules of Court B, the applicant stated that he wished
to take part in the proceedings. On 29 August 1996 the President of
the Court gave him leave to present his own case, with the assistance
of a lawyer, during the written proceedings, it being understood that
the latter would have to represent him at the hearing (Rule 31
para. 1). On the same day the President gave them leave to use the
German language (Rule 28 para. 3).
4. 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. 4 (b)). On 7 August 1996, in the presence of the
Registrar, the President drew by lot the names of the other
seven members, namely Mr Thór Vilhjálmsson, Mr R. Macdonald,
Mr C. Russo, Mr A. Spielmann, Mr J.M. Morenilla, Mr M.A. Lopes Rocha
and Mr L. Wildhaber (Article 43 in fine of the Convention and Rule 21
para. 5) (art. 43). Subsequently Mr R. Pekkanen and Mr P. Kuris,
substitute judges, replaced Mr Wildhaber and Mr Macdonald, who were
unable to take part in the further consideration of the case (Rules 22
para. 1 and 24 para. 1).
5. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Austrian Government
("the Government"), the applicant's lawyer and the Delegate of the
Commission on the organisation of the proceedings (Rules 39 para. 1 and
40). Pursuant to the order made in consequence, the Registrar received
the applicant's memorial on 13 January 1997 and the Government's
memorial on 7 February 1997. On 11 March 1997 the Commission produced
the file on the proceedings before it, as requested by the Registrar
on the President's instructions.
6. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
20 March 1997. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr W. Okresek, Head of the International Affairs
Division, Constitutional Department,
Federal Chancellery, Agent,
Mr S. Benner, Department of Criminal Affairs
and Pardons,
Federal Ministry of Justice, Adviser;
(b) for the Commission
Mr L. Loucaides, Delegate;
(c) for the applicant
Mr H. Tretter, Counsel,
Mr G. Oberschlick, Applicant.
The Court heard addresses by Mr Loucaides, Mr Tretter,
Mr Okresek, Mr Benner and Mr Oberschlick.
AS TO THE FACTS
I. Circumstances of the case
7. Mr Oberschlick, a journalist living in Vienna, was at the
material time editor of the periodical Forum.
8. On 7 October 1990 on the occasion of a "peace celebration"
(Friedensfeier) at the foot of the Ulrichsberg, Mr Haider, leader of
the Austrian Freedom Party (Freiheitliche Partei Österreichs - FPÖ) and
Governor (Landeshauptmann) of the Land of Carinthia, gave a speech
glorifying the role of the "generation of soldiers" who had taken part
in the Second World War. In it he said that all soldiers, including
those in the German army, had fought for peace and freedom and that
people should therefore not differentiate between "good" and "bad"
soldiers of that generation but should rather be grateful to all of
them for having founded and built today's affluent, democratic society.
Mr Haider then criticised an Austrian writer who had, in his view,
disparaged all those killed in the Second World War, and continued as
follows:
"Ladies and gentlemen, freedom of opinion is taken for granted
in a democracy, but it reaches its limits where people lay claim
to that spiritual freedom they would never have got if others had
not risked their lives for them so that they may now live in
democracy and freedom."
9. This speech was reproduced in full in Forum and commented on by
the applicant and the aforementioned Austrian writer. Mr Oberschlick's
passage, entitled "P.S.: 'Trottel' statt 'Nazi'" ("P.S.: `Idiot'
instead of `Nazi'"), read as follows:
"I will say of Jörg Haider, firstly, that he is not a Nazi and,
secondly, that he is, however, an idiot. That I justify as
follows:
[L.] [...] wholly convinced me that being called a Nazi is an
advantage to Jörg Haider. That is why I ask my friends to
forgive my abstaining from using that description for that very
good reason.
[...]
As [Haider] denies those of us who in his eyes did not have the
legitimising good fortune [legitimierende Glück] to have risked
our lives in the uniform of honour [Ehrenkleid] of the
Third Reich for the Hitlerian freedom to wage wars of conquest
[Raubkrieg] and impose the final solution, [and as he denies us]
the right 'to lay claim to a purely "spiritual" freedom of
opinion', let alone a "political freedom", and he himself has
never had the good fortune to serve in the uniform of honour of
the SS or the German army [Wehrmacht], thus excluding himself
along with the vast majority of Austrians from any exercise of
freedom, he is, in my eyes, an idiot."
10. On 26 April 1991 Mr Haider brought an action for defamation
(üble Nachrede) and insult (Beleidigung) against the applicant in the
Vienna Regional Criminal Court (Landesgericht für Strafsachen - "the
Regional Court"). He also applied for an order for the immediate
seizure of the relevant issue of the periodical and for an announcement
of the institution of proceedings to be published in Forum.
11. On 30 April 1991 the court allowed the application for an
announcement to be published, but on 21 May 1991 Mr Oberschlick
appealed against that decision.
12. On 23 May 1991 the court found the applicant guilty under
Article 115 of the Criminal Code (see paragraph 19 below) of having
insulted Mr Haider and sentenced him to pay twenty day-fines of
200 Austrian schillings (ATS), with ten days' imprisonment in default.
In the court's view, the word Trottel was an insult (Schimpfwort) and
could only ever be used as a disparagement (Herabsetzung); it therefore
could never be used for any objective criticism (sachliche Kritik).
In the written version of the judgment the court ordered the seizure
of the relevant issue of Forum.
13. On 30 August 1991 the applicant lodged an appeal (Berufung)
against that judgment. In his submission, the court had held that the
expression in question constituted an insult to Mr Haider because it
had disregarded the context in which it had been used. If the court
had taken into account the whole of the article and its line of
argument, it would have realised that the term complained of was
justified since it served as a conclusion to the finding that Mr Haider
had in his speech excluded himself from the enjoyment of freedom of
opinion.
Mr Oberschlick also complained that the seizure of the relevant
issue of Forum had not been ordered when judgment was given.
14. On 16 September 1991 the applicant asked for the record of the
hearing to be rectified and supplemented.
15. On 18 October 1991 the Regional Court rectified part of the
record and refused the further amendments sought by the applicant as
irrelevant. On 10 December he lodged an appeal (Beschwerde) against
that decision.
16. In the meantime, on 5 December 1991, the Regional Court had
rectified its judgment and removed from it the order for the seizure
of Forum.
17. On 18 March 1992 the Vienna Court of Appeal (Oberlandesgericht)
dismissed the applicant's appeal against the order to publish an
announcement about the proceedings instituted by Mr Haider
(see paragraph 11 above). On the same day the Court of Appeal declared
inadmissible the appeal against the decision to rectify the record of
the hearing (see paragraph 15 above).
18. On 25 March 1992 the Court of Appeal upheld the Regional Court's
judgment but reduced the rate of the day-fine to ATS 50
(see paragraph 12 above).
It noted that the word in issue appeared in the title of the
article. Only those who had read not just the lines written by the
applicant but also Mr Haider's speech and the comments accompanying it
in Forum would understand that Mr Oberschlick had called the speaker
an "idiot" as, in his view, he had in his speech excluded himself and
the vast majority of Austrians from the enjoyment of freedom of
opinion. Those who had not would link the term Trottel not with the
conclusion that could be drawn from Mr Haider's words but with his own
person. It thus amounted to an insult that overstepped the limits of
acceptable objective criticism (die Grenze sachlich zulässiger Kritik)
and Mr Oberschlick must have been aware of that. At the most, he could
have described the consequences of Mr Haider's remarks as stupid
(vertrottelt).
Admittedly, politicians who supported opinions that were open to
criticism had to accept that they would be subject to especially
hard-hitting attacks, even personal ones. The right to freedom of
opinion must not, however, lead to insults replacing arguments of
substance in political debate. The fact that a politician resorted to
insults did not justify his detractors doing the same, unless
personally provoked. Taking Article 10 of the Convention (art. 10) as
the basis for a right to insult someone would bring about a general
debasement (generelle Verrohung) of political debate.
I. Relevant domestic law
19. The relevant provisions of the Criminal Code read as follows:
Article 111
"1. Anyone who, in such a way that it may be noticed by a third
person, attributes to another a contemptible characteristic or
sentiment or accuses him of behaviour contrary to honour or
morality and such 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. In the case of the offence defined in
paragraph 1 he shall also not be liable if circumstances are
established which gave him sufficient reason to believe that the
statement was true."
Article 115
"1. Anyone who, in public or in the presence of several others,
insults, mocks, mistreats or threatens to mistreat a
third person, shall be liable to imprisonment not exceeding
three months or a fine ... unless he is liable to a more severe
penalty under another provision.
...
3. Anyone who, solely from indignation at the behaviour of
another person, allows himself to be provoked into insulting,
mistreating or threatening to mistreat that person in a way that
is excusable in the circumstances, shall have a defence if his
indignation is understandable to the average person, regard being
had in particular to the time that has elapsed since the event
that provoked it."
PROCEEDINGS BEFORE THE COMMISSION
20. In his application (no. 20834/92) of 15 September 1992 to the
Commission, Mr Oberschlick alleged that his conviction had been
contrary to Article 10 of the Convention (art. 10) and that the
procedure adopted by the Austrian courts had been in breach of
Article 6 (art. 6).
21. On 6 April 1995 the Commission (First Chamber) declared the
application admissible as to the complaints under Article 10 (art. 10)
and declared the remainder of the application inadmissible. In its
report of 29 November 1995 (Article 31) (art. 31), it expressed the
opinion by fourteen votes to one that there had been a violation of
that provision (art. 10). The full text of the Commission's opinion
is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-IV), but a copy of the Commission's report is obtainable
from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
22. In their memorial the Government asked the Court to
"hold that there had been no violation of the rights Mr Oberschlick was
relying on under Article 10 of the Convention (art. 10)".
23. In his memorial the applicant asked the Court to
"hold that Austria had violated Article 10 of the Convention (art. 10)
[in] convicting him of a criminal offence".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION (art. 10)
24. Mr Oberschlick argued that the decisions in which he was held to
be guilty of insult had infringed his right to freedom of expression
as secured in Article 10 of the Convention (art. 10), 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 (art. 10)
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."
25. His conviction by the Vienna Regional Court on 23 May 1991
(see paragraph 12 above), upheld by the Vienna Court of Appeal on
25 March 1992 (see paragraph 18 above), had indisputably amounted to
an "interference" with the exercise of freedom of expression.
Those appearing before the Court also agreed that the
interference was "prescribed by law" - Article 115 of the Criminal Code
(see paragraph 19 above) - and its purpose was to protect "the
reputation or rights of others", within the meaning of Article 10
para. 2 (art. 10-2).
The oral argument dealt with the question whether the
interference was "necessary in a democratic society" in order to
achieve that end.
26. In the applicant's submission, the word Trottel (idiot) had not
been used by chance; it was the only word that could both draw public
attention to how outrageous the arguments in Mr Haider's speech were
and sum up the criticism of him in the article in issue. Both the
words and the tone had been chosen to show Mr Haider and readers just
how illogical, unreasonable and dangerous his words at the Ulrichsberg
had been in that they were such as to deprive the speaker himself and
most citizens of the right to freedom of opinion. That being so, it
was in the public interest to warn people at large against the ideas
of the person who was at that time Governor of the Land of Carinthia
and was even regarded as a possible candidate for the position of
Federal Chancellor. In sum, the word Trottel had been directed not
against the speaker but against what he had said, as any average reader
had been able to see.
27. The Commission accepted that the word in issue could be
considered insulting but was of the view that in the circumstances of
the case and regard being had in particular to the views expressed by
Mr Haider, the applicant's conviction represented a disproportionate
interference with the exercise of his freedom of expression.
28. The Government pointed out that the conviction in question
related not to Mr Oberschlick's criticism of Mr Haider but merely to
the use of the word Trottel. Far from being able to be regarded as the
expression of an opinion, it was nothing but an insult used to
denigrate and disparage an individual in public. That was not
acceptable in a democratic society, even where the person being
attacked had defended extreme opinions which were intended to provoke.
In order to maintain a minimum level in political debate, certain basic
rules had to be observed. Insults, denigrations and offensive language
could not enjoy general, unlimited protection under the Convention as
they made no positive contribution to the political development of
society. They were more likely to poison the climate by prompting a
desire for retaliation. In its own interests a democratic society
could not tolerate such an escalation.
29. The Court reiterates that, subject to paragraph 2 of Article 10
of the Convention (art. 10-2), freedom of expression is applicable not
only to "information" and "ideas" that are favourably received or
regarded as inoffensive or as a matter of indifference, but also to
those that offend, shock or disturb.
These principles are of particular importance with regard to the
press. While it must not overstep the bounds set, inter alia, for "the
protection of the reputation of others", its task is nevertheless to
impart information and ideas on political issues and on other matters
of general interest.
As to the limits of acceptable criticism, they are wider with
regard to a politician acting in his public capacity than in relation
to a private individual. A politician inevitably and knowingly lays
himself open to close scrutiny of his every word and deed by both
journalists and the public at large, and he must display a greater
degree of tolerance, especially when he himself makes public statements
that are susceptible of criticism. He is certainly entitled to have
his reputation protected, even when he is not acting in his private
capacity, but the requirements of that protection have to be weighed
against the interests of open discussion of political issues, since
exceptions to freedom of expression must be interpreted narrowly
(see, in particular, the Oberschlick v. Austria (no. 1) judgment of
23 May 1991, Series A no. 204, pp. 25-26, paras. 57-59, and the
Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria
judgment of 19 December 1994, Series A no. 302, p. 17, para. 37).
30. The Court notes that Mr Oberschlick was convicted for having
insulted Mr Haider by describing him as a Trottel in the title and in
the main body of the article he published in Forum. The Regional Court
considered that the word itself was insulting and that its mere use was
enough to justify the conviction (see paragraph 12 above). The
Vienna Court of Appeal took the view that the mere fact that the word
in question also appeared in the title of the article made it insulting
since readers who had read neither the article nor Mr Haider's speech
and the comments on it would link the word not with what Mr Haider had
said but with his own person (see paragraph 18 above).
31. The Court disagrees. It wishes to point out in this connection
that the judicial decisions challenged before it must be considered in
the light of the case as a whole, including the applicant's article and
the circumstances in which it was written (see the Oberschlick (no. 1)
judgment cited above, p. 26, para. 60).
The most important of these is Mr Haider's speech, which
Mr Oberschlick was reporting on in his article. In claiming, firstly,
that all the soldiers who had served in the Second World War, whatever
side they had been on, had fought for peace and freedom and had
contributed to founding and building today's democratic society and in
suggesting, secondly, that only those who had risked their lives in
that war were entitled to enjoy freedom of opinion, Mr Haider clearly
intended to be provocative and consequently to arouse strong reactions.
32. As to Mr Oberschlick's article, it was published together with
the speech in question and an article by a writer who was also reacting
to what Mr Haider had said. In his article the applicant briefly
explained, in some twenty lines, why Mr Haider's remarks had prompted
him to describe him as a Trottel rather than as a Nazi - mainly because
in his speech Mr Haider had excluded himself from enjoying any freedom
of opinion.
33. In the Court's view, the applicant's article, and in particular
the word Trottel, may certainly be considered polemical, but they did
not on that account constitute a gratuitous personal attack as the
author provided an objectively understandable explanation for them
derived from Mr Haider's speech, which was itself provocative. As such
they were part of the political discussion provoked by Mr Haider's
speech and amount to an opinion, whose truth is not susceptible of
proof. Such an opinion may, however, be excessive, in particular in
the absence of any factual basis, but in the light of the above
considerations that was not so in this instance (see, as the most
recent authority, the De Haes and Gijsels v. Belgium judgment of
24 February 1997, Reports of Judgments and Decisions 1997-I, p. 236,
para. 47).
34. It is true that calling a politician a Trottel in public may
offend him. In the instant case, however, the word does not seem
disproportionate to the indignation knowingly aroused by Mr Haider.
As to the polemical tone of the article, which the Court should not be
taken to approve, it must be remembered that Article 10 (art. 10)
protects not only the substance of the ideas and information expressed
but also the form in which they are conveyed (see among other
authorities, the Oberschlick (no. 1) judgment cited above, p. 25,
para. 57).
35. In conclusion, the Court considers that the necessity of the
interference with the exercise of the applicant's freedom of expression
has not been shown.
There has therefore been a breach of Article 10 (art. 10).
II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
36. Article 50 of the Convention (art. 50) provides:
"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. Mr Oberschlick sought 23,394.80 Austrian schillings (ATS) in
respect of pecuniary damage, that is to say reimbursement of the fine
and of Mr Haider's costs for court fees and legal representation, which
the applicant was ordered to pay by the Vienna Court of Appeal
(see paragraph 18 above).
38. The Government agreed in the event of a finding that there had
been a violation. The Delegate of the Commission made no observations.
39. As payment by the applicant of the sums in question was a direct
consequence of his wrongful conviction, the Court considers the claim
justified.
B. Costs and expenses
40. Mr Oberschlick sought ATS 194,998.84 in respect of the costs and
expenses relating to his legal representation in the domestic courts
and before the Convention institutions.
41. The Government agreed to pay ATS 132,000 if a violation was
found. The Delegate of the Commission made no observations.
42. Making its assessment on an equitable basis, the Court awards the
applicant ATS 150,000 under this head.
C. Default interest
43. According to the information available to the Court, the
statutory rate of interest applicable in Austria at the date of
adoption of the present judgment is 4% per annum.
FOR THESE REASONS, THE COURT
1. Holds by seven votes to two that there has been a breach of
Article 10 of the Convention (art. 10);
2. Holds unanimously
a. that the respondent State is to pay the applicant, within
three months, 23,394 (twenty-three thousand three hundred and
ninety-four) Austrian schillings and 80 (eighty) groschen in
respect of pecuniary damage and 150,000 (one hundred and
fifty thousand) schillings for costs and expenses;
b. that simple interest at an annual rate of 4% shall be payable
from the expiry of the above-mentioned three months until
settlement.
3. 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 1 July 1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the dissenting
opinion of Mr Matscher, joined by Mr Thór Vilhjálmsson, is annexed to
this judgment.
Initialled: R. R.
Initialled: H. P.
DISSENTING OPINION OF JUDGE MATSCHER,
JOINED BY JUDGE THÓR VILHJÁLMSSON
(Translation)
I cannot concur in either the reasoning of the majority of the
Chamber or the conclusion they have reached. They have ignored the
fundamental distinction between a criticism or value judgment on the
one hand, and an insult on the other; the first two are covered by the
freedom of expression secured in Article 10 of the Convention
(art. 10), whereas an insult is not.
Mr Oberschlick and Forum were at liberty to criticise severely
Mr Haider's remarks in his speech at the traditional ex-servicemen's
reunion at the Ulrichsberg in Carinthia on 7 October 1990. Moreover,
what Mr Haider said on that occasion was in substance what speakers
usually say at such meetings in all the European countries where there
is a military tradition.
Mr Oberschlick did not, however, simply criticise; he went
further, uttering vulgar insults aimed at Mr Haider, calling him a
Trottel (idiot). Despite an ingenious attempt to present things
differently, the average reader must have understood Mr Oberschlick's
words as an insult intended to ridicule Mr Haider.
The context in which an insult is uttered is of no consequence,
except where it is held to be an immediate reaction to a provocation
or affront (this is the idea underlying Article 115 para. 3 of the
Austrian Criminal Code). That was not the case here. What Mr Haider
had said became public knowledge at the latest on the day after the
reunion of 7 October 1990 and Mr Oberschlick did not publish the
article in question until March 1991, in other words five months after
the event.
We may wonder if it was wise for a politician to lodge a
complaint about an insult of this kind. If, however, the person
concerned (whether a politician or an ordinary citizen) feels offended,
he has the right to do so. Accordingly, the Austrian courts had to
find Mr Oberschlick guilty, given that the offence of insult as defined
in Article 115 para. 1 of the Austrian Criminal Code had been made out.
Moreover, the fine imposed on Mr Oberschlick (ATS 1,000) was a small
one, not to say a nominal one.
Looked at from this point of view, the arguments set out in
paragraph 33 of the judgment are not valid, as they apply only to value
judgments, and an insult can never be a value judgment.
Lastly, the purpose of Article 10 of the Convention (art. 10),
in my opinion, is to allow a real exchange of ideas, not to protect
primitive, fourth-rate journalism which, not having the qualities
required to present serious arguments, has recourse to provocation and
gratuitous insults to attract potential readers, without making any
contribution to an exchange of ideas worthy of the name.