AS TO THE ADMISSIBILITY OF
Application No. 12387/86
by Fraktion Sozialistischer Gewerkschafter
im ÖGB Vorarlberg and 128 of its
individual members (Kurt KÖPRUNER,
Karl FALSCHLUNGER and Others)
against Austria
The European Commission of Human Rights sitting in private
on 13 April 1989, the following members being present:
MM. S. TRECHSEL, Acting President
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 June 1986
by Fraktion Sozialistischer Gewerkschafter im ÖGB Vorarlberg and 128
of its individual members (Kurt KÖPRUNER, Karl FALSCHLUNGER and
Others, cf. the list in the Appendix) against Austria and registered
on 9 September 1986 under file No. 12387/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the applicants may be
summarised as follows:
The applicants are 128 individual members of the group of
socialist trade-unionists in the Vorarlberg branch of the Austrian
Trade Union Federation (Fraktion sozialistischer Gewerkschafter im
Österreichischen Gewerkschaftsbund Vorarlberg) who, in 1984, presented
themselves as candidates for the elections to the Workmen's Chamber
(Arbeiterkammer) of Vorarlberg. They include the present Chairman
(Obmann) of this group, Mr. Kurt Köpruner, and its former Chairman who
was still in office at the relevant time, Mr. Karl Falschlunger. All
individual applicants are Austrian citizens residing at various places
of Vorarlberg. The group of socialist trade-unionists as such,
represented through its Chairman, Mr. Köpruner, wishes to figure as
a further applicant. All applicants are represented by Rechtsanwalt
Dr. W.L. Weh of Bregenz.
In the course of the electoral campaign, the group of
socialist trade-unionists published and distributed to the general
public a series of pamphlets under the title "Wussten Sie, dass ..."
("Did you know that ..."). One of the pamphlets (No. 19 published in
February 1984 with a circulation of 12,000 copies) dealt in a critical
way with the medical profession in Vorarlberg. It was claimed, in
particular, that the medical profession had a disproportionate income
in comparison to other sectors of the population and could lead a
life of luxury. Criticism was expressed in this context concerning
the system of private patients who, it was claimed, unjustifiably
received better treatment than other patients covered by the social
security system. Reference was also made to a book in which the
authors allegedly had proven "how well-known members of the medical
profession abuse[d] innocent patients for experimental purposes,
how side-effects of drugs [were] kept secret, how physicians and
pharmacists [were] being bribed for purposes of increased sales and
how the prices of medicines [were] fixed in an arbitrary manner".
In the centre of this pamphlet was a column entitled "Was Sie
über Primarärzte wissen müssen" ("What you should know about head
physicians of hospitals"). Under the heading "Was sie mögen" ("What
they like") twelve items were listed, including:
- chronically ill private patients;
- nice gifts of the pharmaceutical industry;
- anonymous bank accounts in Switzerland.
Under the heading "Was sie nicht mögen" ("What they do
not like") thirteen items figured, including:
- normal patients.
These and a number of further passages of the pamphlet were
made the subject of proceedings under the Media Act (Mediengesetz)
by twelve (out of a total of some 45) head physicians of various
Vorarlberg hospitals, who were supported by the Vorarlberg Chamber of
Medical Practitioners (Ärztekammer). They applied for the forfeiture
(Einziehung) of the pamphlet in autonomous proceedings (selbständiges
Verfahren) under Section 33, publication of the judgment under Section 34,
and publication of a notice on the introduction of the proceedings under
Section 37 of the Media Act.
Section 33 para. 2 of the Act reads as follows:
(German)
"Auf Antrag des Anklägers ist auf Einziehung in einem
selbständigen Verfahren zu erkennen, wenn in einem Medium
der objektive Tatbestand einer strafbaren Handlung
hergestellt worden ist und die Verfolgung einer bestimmten
Person nicht durchführbar oder ihre Verurteilung wegen des
Vorhandenseins von Gründen, die eine Bestrafung ausschliessen,
nicht möglich ist. Wäre der Täter bei erbrachtem Wahrheits-
beweis nicht strafbar, so steht dieser Beweis ... auch dem
Medieninhaber (Verleger) als Beteiligtem ... offen."
(Translation)
"Upon the application of the prosecutor the Court shall
pronounce the forfeiture in autonomous proceedings if the
objective conditions of a criminal offence have been
fulfilled in a press publication and if either prosecution
of a particular person or, by virtue of reasons which
exclude the imposition of a penalty, his conviction is not
possible. If no punishment can be imposed in case of the
offender having proved the truth, the defence of truth shall
also be available to the owner (publisher) of the press
product in question being the interested party ...".
It was claimed that the incriminated passages fulfilled the
objective conditions of the criminal offence of defamation in the
press (üble Nachrede in einem Druckwerk) within the meaning of
Section 111 para. 2 of the Penal Code (Strafgesetzbuch) and that the
group of socialist trade-unionists as a whole was responsible for this
under the imprint of the publication. However, as the group was not a
legal person, the application was directed against its individual
members.
The proceedings were conducted before the competent criminal
court, i.e. a single judge of the Regional Court (Landesgericht) of
Feldkirch.
On 17 April 1984 the Court issued an injunction against the
group of socialist trade-unionists ordering it to publish a notice that
the proceedings had been brought.
On 26 November 1984 the Court held a trial (Hauptverhandlung)
of the case as a consequence of which it severed the proceedings
against six individual applicants who might have been involved in the
preparation and dissemination of the publication. They included, in
particular, Mr. Falschlunger who had declared that he was responsible
for the publication. As regards the remaining individual applicants,
the Court found it established that they had not participated in the
preparation or dissemination. It considered that under the general
principles of criminal law they could not be held criminally
responsible and therefore had to be acquitted. Accordingly the Court
rejected the application insofar as it concerned these applicants.
The head physicians' appeal against this decision was allowed
by the Innsbruck Court of Appeal (Oberlandesgericht) on 20 March 1985.
It held that, since the group of socialist trade-unionists mentioned
in the imprint was not a legal person, and as no individual person
responsible for the publication had been indicated, it was legally
justified to hold all persons constituting the group responsible. In
autonomous proceedings under Section 33 of the Media Act the
plaintiffs could not be required to identify those persons who had
actually contributed to the publication as this would be contrary to
the ratio legis of the provisions concerning the imprint. It was
the purpose of Section 33 to provide a remedy if no case could be
brought against an individual person. The general principles of
criminal responsibility were not applicable in such a case, and
therefore proceedings could be brought against all applicants as the
publication was attributable to them under the Media Act. The Court
of Appeal accordingly referred the case back to the Regional Court
with a view to determining whether or not the contents of the
publication fulfilled the objective conditions of a criminal offence.
The Regional Court held a new trial on 24 May 1985. It
allowed the application against all 128 individual applicants, finding
that the above-cited passages of their publication objectively
constituted the offence of defamation under Section 111 paras. 1 and 2
of the Penal Code. Furthermore, it ordered the forfeiture of that
publication under Section 33 of the Media Act as well as the
publication of the judgment in a local newspaper under Section 34 of
the Act.
In the reasons the judgment also referred to the context of
the above passages. This included the reproach made to physicians that
they accorded better treatment to patients with a supplementary
private insurance and the reference to a book. Seen in this context,
the Court considered that the central column could be interpreted by
"socially integrated and value orientated average readers" as a
personal attack on and defamation of head physicians in Vorarlberg,
exposing them to a suspicion of corruption and other criminal
offences. The statement that they liked chronically ill private
patients, but disliked normal patients involved a reproach of
unethical behaviour; the statement that they liked nice gifts of the
pharmaceutical industry involved a reproach that they were open to
bribery; and the statement that they liked anonymous bank accounts in
Switzerland involved a reproach of tax evasion. Finally, the authors
of the publication had identified themselves with the statements in
the book which they had cited.
The Court did not find it proven that these attitudes
(Gesinnungen) insinuated to the head physicians were true. The
incriminated statements could not be defended by the applicants
as being general statements devoid of any meaning (inhaltsleere
Allerweltsaussagen); this would be incompatible with the functions of
a publication made in the course of an electoral campaign and which
for the average reader could only serve the purpose of attacking
political opponents. Also, the applicants' offer to prove the truth
of their statements had to be rejected because the proposed evidence
was either of an exploratory nature (Erkundungsbeweis) or not
specific. The applicants had not indicated any specific facts
capable of demonstrating the existence of the alleged attitudes of the
head physicians concerned. These had been singled out with sufficient
precision to allow their identification, and they were entitled to
complain of defamation even if they had not been attacked individually
but as a group. In autonomous proceedings an intention to defame was
not required under Section 33 of the Media Act. It was sufficient
that the incriminating statements were objectively defamatory and that
the defendants had not proven the truth. The applicants' acts could
not be justified under the constitutional provisions concerning
freedom of expression, including Article 10 of the Convention, as they
did not constitute "objective criticism proportionate both as regards
its cause and the terms employed" ("anlass- und ausdrucksadäquate
sachliche Kritik").
The applicants' appeal (Berufung) in which they alleged the
nullity of the above judgment was rejected by the Court of Appeal on
19 December 1985. The Court of Appeal held that the Regional Court,
when rejecting their offer to prove the truth of their statements, had
not infringed the applicants' rights of defence. The defence of truth
was often used to aggravate the interference with the reputation of
the injured person, and therefore it was necessary to prevent abuses
of this defence, in particular, by a strict control of the alleged
facts and the subject matter of the proof offered. While in the case
of allegations of despicable or immoral behaviour the scope of
evidence of truth could not be restricted within narrow limits,
only evidence of concrete facts likely to prove such behaviour should
be admitted. In the present case the applicants had failed to specify
the facts which they wished to prove and to show their relevance to
the defamation issue. In assessing that issue, the Regional Court had
considered all relevant elements of the publication. By concentrating
on certain passages it had not distorted its objective meaning. It
had correctly held that the plaintiffs, being members of a relatively
small group of persons attacked by the publication, could complain of
defamation. The fact that, apart from head physicians, other members
of the medical profession had also been criticised in the publication
had not been established by the Regional Court and therefore could not
be raised by the applicants on appeal. The applicants could not
invoke the possibility of different interpretations of the
incriminating passages which did not constitute a reproach against the
plaintiffs. The meaning of the incriminating passages as intended by
the authors and perceived by the public was based on findings of the
trial court by which the Court of Appeal was bound. It could only
intervene if it had doubts concerning these findings, but not
concerning their assessment by the trial court in the exercise of its
free evaluation of evidence. The applicants' interpretation of the
incriminating passages departed from the facts as established by the
trial court and therefore could not support the allegation that the
law had been wrongly applied. Moreover, the trial court's
interpretation of the incriminating passages had been correct and
these passages objectively constituted the offence of defamation
within the meaning of Section 111 paras. 1 and 2 of the Penal Code.
COMPLAINTS
1. The applicants complain that the restriction of their
publication violated Article 10 of the Convention and Articles 1
and 3 of Protocol No. 1 to the Convention.
Under Article 10 they submit that the restriction of their
freedom of expression was not necessary in a democratic society as
there was no pressing social need. Furthermore, the Austrian courts
did not apply the right criteria when judging the case. In particular,
they failed to consider the incriminating passages in the context of
the publication, which was part of an important electoral campaign
conducted in a heated political atmosphere. The issues discussed - the
high incomes of the medical profession from private patients and the
better treatment accorded to the latter - had been in dispute between
the group of socialist trade-unionists and the Chamber of Medical
Practitioners for a long time. Informed readers must have understood
the satirical undertone in the exaggerated form of presentation. The
aim of the publication was not to attack individual persons, but to
pass a critical value judgment on a question of social policy. The
applicants challenge the Court of Appeal's statement that the
interpretation of the incriminating statements is the task of the
trial court, whose findings are binding. This approach is at variance
with a pluralistic democratic society. They also criticise that the
Regional Court's judgment did not permit them to rely on a book which
was on public sale and which had not been the subject of any
restrictions.
Under Article 1 of Protocol No. 1 the applicants claim that
the forfeiture of their publication constituted an unjustified
interference with their property rights.
Under Article 3 of Protocol No. 1 they claim that it
interfered with their campaign concerning the elections to the
Workmen's Chamber which, in their view, fall within the scope of this
provision. They stress that a restriction of this kind may limit the
freedom of expression in future electoral campaigns.
2. All individual applicants, except Mr. Falschlunger, also
complain of the court proceedings. Mr. Falschlunger accepts his
responsibility for the publication at issue and that on this basis
criminal proceedings for defamation could be instituted against him.
The other applicants invoke Articles 6, 7 and 11 of the
Convention, claiming that they had not been personally involved in the
preparation and dissemination of the publication and therefore could
not be held responsible for it. The plaintiffs knew that Mr.
Falschlunger was responsible and therefore could have brought a
private prosecution against him. However, by admitting autonomous
proceedings against all applicants, the latter were de facto treated
as accused. This impression was given to the general public by the
manner in which the proceedings were conducted. The case was dealt
with by the criminal courts under the Code of Criminal Procedure and
the provisions of the Penal Code concerning defamation. A trial
(Hauptverhandlung) was held, and in the record thereof reference was
made to a "criminal case" against the applicants and to the reading of
the "indictment". The impression was thus created that all 128
individual applicants had been found guilty and had been convicted of
a criminal offence. However, under Articles 6 and 7 of the Convention
nobody may be punished for a criminal offence without his personal
guilt having been established. This fundamental principle has been
disregarded in the present case.
The applicants further invoke Article 11 of the Convention
and claim that the fact of holding them individually responsible
only because they belonged to the group of persons indicated in the
imprint of the publication interferes with trade union freedom or
freedom to create political associations. This practice must deter
the individuals concerned from becoming members of the trade unions or
associations in question. This interference with trade union freedom
cannot be justified under Article 11 para. 2 because the person
responsible for the publication was known and the rights of others
thus could be protected by proceeding against that person.
THE LAW
1. The applicants, i.e. the group of socialist trade-unionists in
the Vorarlberg branch of the Austrian Trade Union Federation and 128
of its individual members who had presented themselves as candidates
in the 1984 elections to the Vorarlberg Workmen's Chamber, complain of
the restriction of a publication issued in the course of their
electoral campaign. They allege that this restriction unjustifiedly
interfered with their rights under Article 10 (Art. 10) of the Convention and
Articles 1 and 3 of Protocol No. 1 (p1-1, P1-3) to the Convention.
The individual applicants, except Mr. Falschlunger, also
complain of the relevant court proceedings, claiming that they
involved violations of Articles 6, 7 and 11 (Art. 6, 7, 11) of the Convention.
2. The Commission must first examine the applicants' status for
the purposes of Article 25 (Art. 25) of the Convention. Under this provision,
the Commission may receive petitions "from any person, non-
governmental organisation or group of individuals claiming to be the
victim of a violation by one of the High Contracting Parties of the
rights set forth in [the] Convention".
The Commission notes that the proceedings complained of were
"autonomous proceedings" (selbständiges Verfahren) under Section 33
of the Media Act which originally were brought both against the group
of socialist trade-unionists as mentioned in the imprint of the
publication at issue, and against the 128 individual members of this
group who were candidates for the election to the Workmen's Chamber.
However, as a result of the proceedings only the latter were regarded
as defendants for the purposes of Section 33 of the Media Act, while
the group of socialist trade-unionists as such was not treated as a
defendant because it was not a legal person. It now claims to have
been a victim of a violation of its Convention rights along with its
above 128 individual members.
The Commission notes that this group was not recognised as a
legal person by the Austrian courts. It may therefore be doubtful
whether it can validly be represented by its Chairman, Mr. Köpruner.
In any event, the group as such was not held responsible for the
publication, it was not represented in the domestic proceedings, and
the sanctions imposed as a result of the proceedings were not
pronounced against it. In these circumstances the Commission does not
consider the group of socialist trade-unionists as a separate victim
for the purposes of Article 25 (Art. 25) of the Convention, in addition to the
128 individuals belonging to this group who were directly affected by
the proceedings.
The Commission notes that the imprint of the restricted
publication referred to the group of socialist trade-unionists, and
that the representatives of the group in the Workmen's Chamber, and
prior to their election, its candidates, are commonly referred to
under this name. This apparently was the reason why the individual
applicants, who had not been otherwise identified, were treated as
defendants in the domestic proceedings. For the purpose of Article 25
(Art. 25) of the Convention they constitute a "group of individuals" under the
aggregate name "Fraktion sozialistischer Gewerkschafter im ÖGB
Vorarlberg" (cf. mutatis mutandis, No. 6538/74, Times Newspapers Ltd.,
The Sunday Times, and Harold Evans v. the United Kingdom, Dec.
21.3.75, D.R. 2 p. 90 at p. 95).
3. All members of the group, except Mr. Falschlunger, complain
under Article 6 (Art. 6) of the Convention that the proceedings were directed
against them individually, although they had not been involved in the
preparation and dissemination of the publication, and that this
created the impression that they were convicted of a criminal offence,
although their guilt had not been established.
Article 6 (Art. 6) provides inter alia that "in the determination of
his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair ... hearing ..." (para. 1), that
"everyone charged with a criminal offence" shall "be presumed innocent
until proved guilty according to law" (para. 2), and that he shall
have certain "minimum rights" of defence (para. 3).
The Commission does not find it necessary to determine to
which extent Article 6 (Art. 6) was applicable to the proceedings complained of
as the applicants' complaints in this respect must in any event be
rejected.
The Commission does not regard it as contrary to the
Convention that the Austrian courts established the joint liability of
the applicants for the publication issued on their behalf, although
not all of them had actually contributed to its preparation and
dissemination. The laws of many Convention States provide for cases
of objective liability, including objective liability for the content
of publications. Moreover, it is not unusual that in cases where such
objective liability arises for a group of persons who are not
organised as a legal person, the individuals concerned are held to be
jointly responsible. This formal criterion does not mean that each
and every individual comprised in the group is considered as having
committed a reproachable act, but only that he or she must sustain the
legal consequences of such an act which has been committed in their
common sphere of responsibility. The Commission notes that in the
present case the applicants could fully plead their case before the
competent Austrian courts, and that in this context they could also
submit all arguments speaking against the assumption of their joint
liability for the publication. The fact that the courts rejected
their arguments in this respect is not a circumstance which would
allow the conclusion that the hearing was unfair.
The Austrian courts considered that certain statements
contained in the applicants' publication were objectively defamatory
and constituted a criminal offence under Section 111 of the Penal
Code. The manner in which the courts reached this conclusion cannot
be regarded as unfair. The Commission here notes that the meaning of
the statements concerned was treated as a fact to be established by
the trial court in the free evaluation of the evidence and that this
court's finding could not be reviewed on appeal. The trial court
referred to a hypothetical well-informed average reader. The
different interpretation proposed by the applicants was considered by
the courts, but not accepted. The Commission does not find any element
of unfairness in this approach.
Nor is there any indication that the presumption of innocence
and the applicants' rights of defence were disregarded. It remained
the task of the plaintiffs to prove the objectively defamatory nature
of the statements in question although in autonomous forfeiture
proceedings under the Media Act it was not necessary for them to
establish the applicants' intent to defame. The plaintiff head
physicians could show that in the applicants' publication highly
reproachable attitudes were imputed to them which involved, or at
least came close to involving, unethical or criminal behaviour. In
these circumstances the courts could reasonably conclude that the
objective conditions of the criminal offence of defamation were
fulfilled.
The applicants were not left without any defence, however. The
objectively defamatory nature of the publication having been
established, they still could avail themselves of the defence of truth
as provided for in Section 112 of the Penal Code. In its decision of
19 December 1985 the Court of Appeal indicated that the scope of
evidence of truth admissible in this respect could not be restricted
within narrow limits. However, the evidence offered by the applicants
was apparently not based on any concrete facts which were found to be
susceptible of showing that the reproaches made to the head physicians
were true. The Commission considers that in these circumstances the
trial court did not act unfairly when refusing to accept this
evidence.
It follows that the applicants' complaints under Article 6 (Art. 6) of
the Convention are manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicants, except Mr. Falschlunger, also complain of a violation
of Article 7 (Art. 7) of the Convention. Paragraph 1 of this Article provides,
inter alia, that "no one shall be held guilty of a criminal offence on account
of any act or omission which did not constitute a criminal offence under
national or international law at the time when it was committed".
The Commission recalls that the proceedings complained of were
autonomous proceedings under the Media Act aiming at the forfeiture of the
applicants' publication. In these proceedings the applicants were neither
formally "accused" nor "held guilty" of a criminal offence. Their liability
was not engaged by virtue of a criminal responsibility for the offence of
defamation, but by virtue of their status as publishers. In these
circumstances Article 7 (Art. 7) is not applicable to the proceedings
complained of. This part of the application is therefore incompatible with the
provisions of the Convention, ratione materiae, and must be rejected under
Article 27 para. 2 (Art. 27-2) of the Convention.
5. The applicants, except Mr. Falschlunger, further claim that the fact
of holding them jointly responsible for the publication involved a violation of
Article 11 (Art. 11) of the Convention which guarantees inter alia everyone's
right to freedom of association, including the right to form and join trade
unions for the protection of his interests. However, the Commission considers
that the proceedings complained of did not in any way interfere with this
right. The applicants remained free to become members of any lawful
association, including trade unions or branches thereof. The fact that by
joining such organisations they could incur a joint liability for publications
of these organisations in certain cases was a normal consequence of their
membership. In the present case this joint liability arose as a consequence of
the formulation of the imprint of the publication in question and the fact that
the group of socialist trade-unionists mentioned therein was not a legal person
susceptible of incurring a liability of its own. In these circumstances it was
justified that the individuals constituting the group were jointly held liable.
The Commission concludes that this part of the application is manifestly
ill-founded.
6. All applicants complain that the restriction of their
publication violated Article 10 (Art. 10) of the Convention. This provision
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 and regardless of frontiers. ...
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."
The applicants' publication was found to be defamatory and
ordered to be forfeited. There has accordingly been an interference
with the applicants' right to freedom of expression within the meaning of
Article 10 para. 1 (Art. 10-1) which requires to be justified under the second
paragraph of this provision.
The interference was based on the provisions of the Media Act in
conjunction with Section 111 of the Penal Code. It was therefore "prescribed
by law". Furthermore, it served the purpose of "protecting the reputation of
others", i.e. of the head physicians of Vorarlberg hospitals who considered
themselves defamed by the publication. The only question to be examined is
therefore whether or not the interference was "necessary in a democratic
society" for this purpose, i.e. whether there was a "pressing social need" for
it, whether the means employed were proportionate to the aim pursued and
whether the reasons adduced by the Austrian courts to justify it were "relevant
and sufficient" (cf. Eur. Court H.R., Lingens judgment of 8 July 1986, Series
A no. 103, pp. 25-26, paras. 39-40).
Freedom of expression, as secured in paragraph 1 of Article 10, (Art.
10-1) constitutes one of the essential freedoms of a democratic society and one
of the basic conditions for its progress and for each individual's
self-fulfilment. Subject to paragraph 2, it is applicable not only to
"information" or "ideas" that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that offend,
shock or disturb. Such are the demands of that pluralism, tolerance and
broadmindedness without which there is no "democratic society" ( Eur. Court
H.R., Handyside judgment of 7 December 1976, Series A no. 24, p. 23 para. 49).
These principles are of particular importance as far as electoral
campaigns are concerned. In elections to any kind of representative bodies,
such as in the present case the Workmen's Chamber, it is important that those
presenting themselves as candidates can speak freely about the political,
economic and social problems which they consider relevant. This is not limited
to the specific functions of the representative body in question. In a
democratic society the electorate and the public in general have an interest to
know the whole range of attitudes of their future political representatives,
even if their tasks concern only a particular section of the population and
particular spheres of social activity. Therefore it was legitimate for the
applicants to express critical views in the course of their electoral campaign
on matters of medical care and possible shortcomings in connection therewith.
In this context it was also legitimate for the applicants to attack their
political opponents, even those represented by another professional
organisation such as in the present case the Chamber of Medical Practitioners.
However, even in an electoral campaign it is justified to require the
candidates not to overstep the bounderies set, inter alia, for the "protection
of the reputation of others". While in a political debate the limits of
acceptable criticism are wider than in a discussion between private individuals
(cf. Eur. Court H.R., Lingens judgment, loc. cit., para. 42), it must be
noted that in the present case very harsh criticism was levelled against the
members of another professional group who were not political opponents of the
applicants in the electoral campaign at issue. The courts found that these
statements fulfilled the objective conditions of the criminal offence of
defamation as defined in Section 111 of the Penal Code, and that the applicants
had failed to offer evidence showing the truth of their allegations.
The applicants claim that the courts, basing themselves on only one of
several possible interpretations of the text, overlooked the satirical overtone
of the publication and the fact that the incriminating allegations made therein
against head physicians were recognisable exaggerations. The Commission finds
that, even allowing for satirical exaggerations and an aggressive tone
justified in a heated political debate, the statements made in the applicants'
publication concerning head physicians of Vorarlberg hospitals could reasonably
be regarded as defamatory. They could in fact be understood as insinuating
that those persons held highly reproachable attitudes involving or at least
coming close to unethical and criminal behaviour.
The applicants claim that their allegations were no more than critical
value judgments on certain questions of social policy. The Commission accepts
that the basic message which the publication sought to convey was criticism of
the high income of the medical profession and of allegedly unjustified
advantages accorded to private patients. However, the particular passages in
the publication which were found to be defamatory were made in the form of
factual assertions concerning the attitudes of physicians. Whereas the truth
of value judgments is not susceptible of proof (cf. Eur. Court H.R. Lingens
judgment, loc. cit., p. 28 para. 46) the existence of facts such as those
alleged in the applicants' publication can be demonstrated. As already
mentioned, the applicants failed to discharge the proof of truth as they did
not offer evidence showing that their allegations concerning the attitudes of
head physicians in Vorarlberg were correct.
The applicants finally complain that the trial court referred to
quotations from a book critical of the medical profession which was on public
sale and had not been the subject of any restriction. The Commission notes,
however, that in the operative part of the Regional Court's decision of 24 May
1985 the passages referring to this book were not mentioned. No restriction
was thus imposed regarding these quotations. In the reasoning the quotations
were used as an additional argument justifying the restriction in respect of
the incriminating passages concerning the head physicians.
The Commission concludes that, taking all circumstances into account,
the restriction complained of could reasonably be regarded as "necessary in a
democratic society" "for the protection of the reputation of others". It was
thus covered by Article 10 para. 2 (Art. 10-2) of the Convention. The
applicants' complaint of an unjustified interference with their right to
freedom of expression is therefore manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
7. The applicants further complain that the declaration of forfeiture
regarding their publication amounted to an unjustified interference with their
property rights as guaranteed by Article 1 of Protocol No. 1 (P1-1) to the
Convention. This Article provides:
"Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall
be deprived of his possessions except in the public
interest and subject to the conditions provided for
by law and by the general principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or
other contributions or penalties."
The Commission considers that in the given circumstances the
forfeiture could be deemed "necessary to control the use of property
in accordance with the public interest", as authorised by the second
paragraph of this provision (cf. Eur. Court H.R., Handyside judgment,
loc. cit., pp. 29-30, paras. 62-63). In this respect, the same
arguments apply as under Article 10 (Art. 10) of the Convention. This part of
the application is accordingly also manifestly ill-founded.
8. The applicants finally complain that the restriction of their
publication violated Article 3 of Protocol No. 1 (P1-3) by which the High
Contracting Parties have undertaken to hold free elections at
reasonable intervals by secret ballot, under conditions which will
ensure the free expression of the opinion of the people in the choice
of the legislature. However, the Commission notes that the
applicants' publication was made in the course of an electoral
campaign for elections to the Workmen's Chamber, a body of
professional representation which has no legislative functions. For
this reason Article 3 of Protocol No. 1 (P1-3) does not apply to the case,
and the applicants' complaint in this respect is therefore
incompatible with the provisions of the Convention, ratione materiae,
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
APPENDIX
List of individual applicants' names
Kurt Köpruner
Karl Falschlunger
Fritz Rudiger
Alwin Riedmann
Heinz Starchl
Josef Hassler
Wilfried Mayer
Willibald Elissier
Reinold Mähr
Willi Rohrer
Kurt Martello
Edgar Entlicher
Karl Wutschitz
Herbert Dür
Johanna Striessnig
Alois Triebl
Theresia Dönz
Franz Leikam
Kurt Dapre
Ernst Gabriel
Richard Lueger
Rosalia Leikam
Raimund Hattler
Willibald Perner
Gerhard Hüttenbrenner
Rudolf Bichler
Hermann Rud
Erich Mauracher
Norbert Loacker
Karl-Heinz Wabin
Richard Kroisenbrunner
Erwin Pichler
Alfred Ertl
Bruno Abram
Friedrich Tschofen
Alfred Endrich
Roland Tangl
Margarethe Dörflinger
Hans Oberleitner
Kurt Geiger
Werner Gächter
Norbert Wrisinig
Julius Müller
List of individual applicants' names (continued)
Walter Pratzner
Leopold Untermayer
Herbert Böhler
Josef Konrad
Hubert Reinsberger
Norbert Thoma
Irma Perner
Willibald Moosegger
Sibylle Lechthaler
Erich Hammer
Adolf Veits
Leonhard Bader
Kurt Vent
Franz Burtscher
Klaus Kessler
Karin Auer
Franz Borg
Wolfgang Stadlmayr
Adolf Gaggl
Christine Hehle
Maria Pauritsch
Klaus Hammer
Bernd Behr
Werner Hämmerle
Erich Plattner
Siegfried Poprat
Gertraud Reicht
Ferdinand Lugmayr
Reinhold Gassner
Ewald Wuggenig
Sigmund Mozes
Walter Marchel
Alois Sageder
Irma Rudigier
Walter Klaner
Franz Zechner
Rosmarie Kirschner
Anton Fessler
Flecker Monika
Leonhard Treichl
Albert Helmut Burtscher
Karl Höfer
Erich Feuerstein
List of individual applicants' names (continued)
Rudolf Fischer
Silvia Prirsch
Alfons Masal
Otto Ebenhoch
Johann Fink
Adolf Grubbauer
Max Krank
Eugen Fessler
Karl Dürtscher
Sonja Neyer
Manfred Bitschnau
Josef Ortner
Ingrid Gitterle
Wolfram Jäger
Hermann Pippan
Willi Senn
Adolf Mazagg
Walter Gelbmann
Gabriele Treitinger
Maria-Loise Kottas
Peter Paulitsch
Günther Ill
Karl Schlattinger
Josef Chesani
Günter Kuczynski
Emil Kessler
Maria Malin
Franz Hötzeneder
Hildegard Mair
Anton Pieber
Ernst Stejskal jun.
Manfred Stimpfl
Hedi Meusburger
Johann Nitz
Rudolf Eberle
Margarethe Blacha
Roald Jussel
Anita Auer
Helmut Pech
Theresia Baumann
Otto Bögner
Gernot Ilg