The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights
and Fundamental Freedoms (hereinafter referred to as "the
Convention"),
Having regard to the judgment of the European Court of Human
Rights in the case of Schwabe against Austria delivered on
28 August 1992 and transmitted the same day to the Committee of
Ministers;
Recalling that the case originated in an application against
Austria lodged with the European Commission of Human Rights on
1 February 1988 under Article 25 (art. 25) of the Convention by
Mr Thomas Uwe Schwabe, an Austrian national, who complained that
his conviction for defamation and for having reproached a person
with a previous criminal offence had been in breach of his right
to freedom of expression;
Recalling that the case was brought before the Court by the
Commission on 8 March 1991;
Whereas in its judgment of 28 August 1992 the Court:
- held by seven votes to two that there had been a violation
of Article 10 (art. 10) of the Convention;
- held unanimously that, as regards the non-pecuniary damage
alleged, the judgment constituted sufficient just satisfaction
for the purposes of Article 50 (art. 50);
- held unanimously that the Republic of Austria was to pay
to the applicant, within three months, 35 242,42 Austrian
schillings for pecuniary damage and 130 402,20 Austrian
schillings for costs and expenses;
- dismissed unanimously the remainder of the claim for just
satisfaction;
Having regard to the rules adopted by the Committee of
Ministers concerning the application of Article 54 (art. 54) of
the Convention;
Having invited the Government of Austria to inform it of the
measures which had been taken in consequence of the judgment of
28 August 1992, having regard to Austria's obligation under
Article 53 (art. 53) of the Convention to abide by it;
Whereas, during the examination of the case by the Committee
of Ministers, the Government of Austria gave the Committee
information about the measures taken in consequence of the
judgment, which information appears in the appendix to this
resolution;
Having satisfied itself that on 14 October 1992 the
Government of Austria has paid the applicant the sums provided
for in the judgment of 26 August 1992,
Declares, after having taken note of the information
supplied by the Government of Austria, that it has exercised its
functions under Article 54 (art. 54) of the Convention in this
case.
Appendix to Resolution DH (94) 23
Information provided by the Government of Austria
during the examination of the Schwabe case by the Committee of
Ministers
A German translation of the judgment of the Court has been
brought to the attention of the judicial authorities concerned.
The case-law of the Austrian courts has also adapted the
interpretation of the crime of defamation (Article 111 of the
Criminal Code) to the requirements of the Convention as
interpreted by the European Court of Human Rights (see the
judgment of the Supreme Court (Oberster Gerichtshof) of
18 May 1993 (11 OS 25/93-6)).
The sums awarded by the Court have been paid to the
applicant on 14 October 1992. Furthermore the applicant's
conviction has been deleted from his criminal record.
Full & Egal Universal Law Academy