Application No. 13704/88
Karl Thomas Uwe SCHWABE
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 8 January 1991)
TABLE OF CONTENTS
page
I. INTRODUCTION
(paras. 1 - 15)..................................... 1
A. The application
(paras. 2 - 3) ............................. 1
B. The proceedings
(paras. 4 - 10) ............................ 1
C. The present Report
(paras. 11 - 15) ............................ 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16 - 37) .................................... 3
A. The particular circumstances of the case
(paras. 16 - 32) ............................ 3
B. Relevant domestic law
(paras. 33 - 37) ............................ 6
III. OPINION OF THE COMMISSION
(paras. 38 - 57) .................................... 8
A. Complaint declared admissible
(para. 38) .................................. 8
B. Point at issue
(para. 39) .................................. 8
C. Article 10 of the Convention
(paras. 40 - 56) ............................ 8
D. Conclusion
(para. 57) .................................. 11
DISSENTING OPINION OF MR. J.-C. GEUS, joined by
MM. G. JÖRUNDSSON, J.-C. SOYER and F. MARTINEZ RUIZ ......... 12
APPENDIX I : HISTORY OF THE PROCEEDINGS ............... 13
APPENDIX II : DECISION ON THE ADMISSIBILITY ............ 13
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant, born in 1959, is an Austrian national and
resident at St. Andrä. He is an industrial management student.
Before the Commission he is represented by Mr. W. Brunner, a lawyer
practising in Klagenfurt.
The application is directed against the Republic of Austria
whose Government are represented by their Agent, Ambassador H. Türk,
Head of the International Law Department at the Federal Ministry of
Foreign Affairs.
3. The application relates to the applicant's conviction, on
26 September 1986 by the Klagenfurt Regional Court (Landesgericht), of
defamation and of reproach with a previous criminal offence. The
applicant complains under Article 10 of the Convention that he was
convicted because he had, in a letter to the editor of a Carinthian
newspaper, referred to the criminal offence of a politician.
B. The proceedings
4. The application was introduced on 1 February 1988 and
registered on 25 March 1988.
5. On 4 July 1988 the Commission decided to give notice of the
application to the respondent Government and to invite them to submit,
before 28 October 1988, their observations in writing on the
admissibility and merits of the application.
6. The Government submitted their observations on 2 November 1988.
The applicant, invited to submit observations in reply before
9 January 1989, submitted his reply on 5 January 1989.
7. On 11 October 1989 the Commission declared the application
admissible.
8. The text of this decision was on 16 October 1989 communicated
to the parties.
9. Additional observations were submitted by the applicant on
7 December 1989 and by the Government on 18 December 1989.
10. After declaring the case admissible, the Commisison, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed
itself at the disposal of the parties with a view to securing a
friendly settlement of the case. Correspondence was conducted with
the parties in this respect between 16 October 1989 and 11 June 1990.
In the light of the parties' reaction, the Commission now finds that
there is no basis on which such a settlement can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
12. The text of this Report was adopted on 8 January 1991
and is now transmitted to the Committee of Ministers of the Council of
Europe, in accordance with Article 31 para. 2 of the Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
14. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
15. The full text of the parties' submissions, together with
the documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. In December 1984 T., the Mayor of Maria Rain in Carinthia, was
convicted of having negligently caused bodily harm (fahrlässige
Körperverletzung) in a traffic accident under the influence of alcohol
(at least 1.75 per mille) and, in particular, of having abandoned the
victim of the accident.
17. In 1985 this conviction was subject to political discussion
in Carinthia. On 13 August 1985 the Carinthian newspaper "Kleine
Zeitung" published an article "If T. doesn't think it over, we do!"
The article quoted from an interview with the Head of the Carinthian
Government W., member of the Socialist party, upon the question
whether or not T. had to resign. W. had referred to the fact that T.
did apparently not intend to resign. He had stated in particular that
he did not want to participate in a hunt. However, after a phase of
reflection, T. ought to realise that his resignation was necessary.
W. continued that this would be primarily a matter for the Austrian
People's Party. However, if T. would not think it over, the Regional
Supervisory Authority (Gemeindeaufsicht des Landes) would do so.
18. On 19 August 1985 the applicant wrote a press report in reply
to that Article. At that time the applicant was Chairman of the Young
Austrian People's Party (Junge Österreichische Volkspartei) in a
Carinthian district and councillor (Gemeinderat) of St. Andrä. The
report read as follows:
"Es sei keine Frage, daß der wegen Fahrerflucht verurteilte ÖVP-Bürgermeister von Maria Rain zurückzutreten habe, erklärte der Bezirksobmann der Jungen ÖVP Wolfsberg Gemeinderat Karl Schwabe in einer Aussendung. Landeshauptmann W. habe aber nicht die geringste moralische Berechtigung Bürgermeister T. wegen seiner Rücktrittsweigerung anzugreifen. Landeshauptmann W. ist seit Jahren darüber informiert, daß sein Stellvertreter am 10. Juli 1966 bei Scheifling in der Steiermark im alkoholisierten Zustand einen Verkehrsunfall verursachte, bei dem 2 Kinder zu Halbwaisen wurden. Man kann sich hier des Eindruckes nicht erwehren, daß der Landeshauptmann bei einem 'kleinen Dorfbürgermeister', der einer anderen Partei angehört, strengere Maßstäbe anlegt, als bei seinem Parteifreund und Stellvertreter F. Es täte der Glaubwürdigkeit W.'s gut, wenn er innerhalb der SPÖ für jene politische Moral sorgen würde, die er von anderen verlangt, schloß Schwabe." "It would be no question that, after his conviction for leaving the place of accident without reporting to the police, the Mayor of Maria Rain T., member of the Austrian People's Party, would have to resign, stated the Councillor Karl Schwabe, Chairman of the Young Austrian People's Party in the Wolfsberg District. However, the Head of the Carinthian Government W. did not have the slightest moral right to attack Mayor T. for his refusal to resign. W. had been informed for years that his Deputy F. had caused an accident after drinking on 10 July 1966 at Scheifling (Styria). The accident had left two children without their father. One could not help feeling that the Head of the Carinthian Government applied a stricter standard to a 'small mayor of a village', who was a member of another political party, than to his 'party friend' and Deputy F. It would do W.'s credibility good, if he would provide within the Austrian Socialist Party for the political morals which he requires of others, concluded Schwabe." 19. The applicant referred in his report to a traffic accident caused by F. in 1966 as a result of which one person had died and several persons had been injured. In 1967 F. had been convicted by the Leoben Regional Court (Kreisgericht) of having committed an offence against security of life (Vergehen gegen die Sicherheit des Lebens). The Leoben Regional Court had considered as an aggravating circumstance that F. had been driving "after drinking" ("Alkoholi- sierung") and had been close to drunken driving (irrefutable at 0.8 per mille). According to the files of the criminal proceedings against F., the blood alcohol content level had been 0.8 per mille at the time of the blood test and estimated at 0.6 per mille to 0.7 per mille at the time of the accident. 20. The applicant was informed of F.'s traffic accident and subsequent conviction by an article published in April 1984. The article referred to the circumstances of the accident and in particular the fact that F. had been called drunk by one of the persons at the accident. Furthermore it stated that F.'s blood alcohol content level had been 0.8 per mille but that he had not been convicted of drunken driving. The applicant verified the contents of this article in a telephone conversation with its author. His request to have access to the files concerning the proceedings concerned was allegedly dismissed by the Leoben Regional Court. 21. The applicant sent his report to several Carinthian newspapers. 22. On 20 August 1985 the report was published in its entirety by the "Neue Volkszeitung" with the heading "Different Standards?" ("Zweierlei Maß?"). 23. On 4 September 1985 the Deputy Head of the Carinthian Government F., as a private prosecutor, requested the Klagenfurt Regional Court to institute criminal proceedings against the applicant. In the subsequent criminal proceedings the applicant was represented by Mr. Brunner. 24. On 26 September 1986 the Klagenfurt Regional Court convicted the applicant of having reproached a person with a criminal offence, in respect of which the sentence had already been executed, under S. 113 of the Austrian Criminal Code (Strafgesetzbuch) and of defamation under S. 111 paras. 1 and 2 of the Criminal Code, by his press report as published by the "Neue Volkszeitung". The applicant was sentenced to a fine of AS 3000.-. 25. The Court found that the applicant's report, as published by the "Neue Volkszeitung", had reproached F. with his traffic accident dating back about 20 years. Furthermore, reproaching F with "drinking" ("alkoholisierter Zustand") and comparing (gleichwertige Gegenüberstellung) this accident with the accident of Mayor T., in conjunction with the reproach of lacking political morals (apparently because he did not resign at the time in question), amounted to defamation. 26. The Court considered that S. 113 of the Criminal Code, although it intended to protect the integration of criminal offenders in general, was applicable in any case of reproach with a previous criminal offence irrespective of whether the integration of the person concerned had been at risk. Furthermore, the applicant had not been compelled, within the meaning of S. 114 para. 2, to make the incriminated reproaches. The fact that a party feels embarrassed about the accident of one of its officials did not confer on it a right to "dig out" the very old accident of an official of the opposite party. Moreover, there was no "duty to reply" to the political opponent, as the attack referred to by the applicant was made by the Head of the Carinthian Government W. and was primarily directed against Mayor T. The applicant, Chairman of a small district organisation, had not been obliged to react to this attack, in particular by defaming a third person. Rather, he had intended to have his name mentioned by the press. 27. Furthermore, the applicant could not plead that the reproach of "driving after drinking" was correct. The man in the street would conclude from this statement that F. - like Mayor T. to whom he was compared - had a blood alcohol content level of more than 0.8 per mille. A blood alcohol content level of less than 0.8 per mille was tolerated by the legislator and the public, and did not give rise to a reproach. The Regional Court also considered that the applicant had not mentioned that F. had not been convicted of drunken driving (Lenken eines Fahrzeugs in alkoholbeeinträchtigtem Zustand). He could not maintain that he intended to refer to a blood alcohol content level of less than 0.8 per mille as the general aim of the press report was to describe the two accidents as being morally completely equal, necessitating the same consequence, namely resignation. The Regional Court stated that the reproach that a politician lacked political morals would not, as such, constitute defamation; the decisive element was the comparison of the two accidents. As regards this defamation, the applicant could even less rely on S. 114 para. 2 of the Criminal Code, because the statement concerned had been incorrect and the applicant had, or should have, been aware of this. The Regional Court further referred to its findings concerning S. 113. 28. Finally the Regional Court, having regard to the evidence from a witness of F.'s accident in 1966 and the expert opinion on the question of F.'s blood alcohol content level submitted in the criminal proceedings in 1967, found that the applicant had failed to prove the truth of his statements. 29. On 5 February 1987 the applicant lodged an appeal (Berufung wegen Nichtigkeit, Schuld und Strafe) against his conviction to the Graz Court of Appeal (Oberlandesgericht). In his grounds of appeal (Ausführung der Berufung), he submitted in particular that he had drafted the press report in the context of a political discussion in reply to the Head of the Carinthian Government W. who had criticised a member of the Austrian People's Party and that party. He had found himself compelled to justify his party and to inform the public about W.'s political morals. He found that the two accidents raised the same problem, namely the compatibility of official functions with a criminal conviction. Furthermore he maintained that his statements concerning F.'s driving after drinking were correct and justifiable in a political discussion. 30. On 29 April 1987 the Graz Court of Appeal dismissed the applicant's appeal as being unfounded. The Court found in particular that the applicant could not plead that he had felt compelled to reply to the Head of the Carinthian Government. Neither had he been ordered to reply in the name of the Austrian People's Party nor had he himself been addressed as Chairman of the Young Austrian People's Party or member of the Party's Regional Executive Committee. This decision was served upon the applicant on 4 September 1987. 31. On 17 September 1987 the applicant submitted a suggestion to lodge a plea of nullity for safeguarding the law (Anregung zur Erhebung einer Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) to the Vienna Attorney General's Office (Generalprokuratur). He referred, inter alia, to the right to freedom of expression under Article 10 of the Convention and the Lingens judgment of 8 July 1986 (Eur. Court H.R., Series A No. 103). 32. On 27 October 1987 the Attorney General's Office informed the applicant that it did not intend to lodge such a plea. B. Relevant domestic law 33. SS. 111 to 114 of the Austrian Criminal Code (Strafgesetzbuch) concern the offences of defamation and reproach with a criminal offence in respect of which the sentence has already been executed. 34. S. 111 provides as follows: [German] "(1) Wer einen anderen in einer für Dritte wahrnehmbaren Weise einer verächtlichen Eigenschaft oder Gesinnung zeiht oder eines unehrenhaften Verhaltens oder eines gegen die guten Sitten verstoßenden Verhaltens beschuldigt, das geeignet ist, ihn in der öffentlichen Meinung verächtlich zu machen oder herabzusetzen, ist mit Freiheitsstrafe bis zu sechs Monaten oder mit Geldstrafe bis zu 360 Tagessätzen zu bestrafen. (2) Wer die Tat in einem Druckwerk, im Rundfunk oder sonst auf eine Weise begeht, wodurch die üble Nachrede einer breiten Öffentlichkeit zugänglich wird, ist mit Freiheitsstrafe bis zu einem Jahr oder mit Geldstrafe bis zu 360 Tagessätzen zu bestrafen. (3) Der Täter ist nicht zu bestrafen, wenn die Behauptung als wahr erwiesen wird. Im Fall des Abs. 1 ist der Täter auch dann nicht zu bestrafen, wenn Umstände erwiesen werden, aus denen sich für den Täter hinreichende Gründe ergeben haben, die Behauptung für wahr zu halten." [Translation] "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 not exceeding 360 day-rates. 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." 35. According to S. 112, the evidence of the truth and the evidence of good faith shall not be admissible unless the offender pleads the correctness of the statement or his good faith. 36. S. 113 of the Criminal Code reads: [German] "Wer einem anderen in einer für Dritten wahrnehmbaren Weise eine strafbare Handlung vorwirft, für die die Strafe schon vollzogen oder wenn auch nur bedingt nachgesehen oder nachgelassen oder für die der Ausspruch der Strafe vorläufig aufgeschoben worden ist, ist mit Freiheitsstrafe bis zu drei Monaten oder mit Geldstrafe bis zu 180 Tagessätzen zu bestrafen." [Translation] "Anyone who in such a way that it may be perceived by a third person reproaches another of having committed a criminal offence in respect of which the sentence has already been executed, or provisionally been suspended, or in respect of which the determination of the sentence has been provisionally adjourned shall be liable to imprisonment not exceeding three months or a fine not exceeding 180 day-rates." 37. By virtue of S. 114 para. 1 an act as mentioned in S. 111 or S. 113 is justified, if thereby a legal duty is carried out or a right exercised. Under S. 114 para. 2 a person, who is for special reasons forced to make an allegation within the meaning of S. 111 or S. 113 in the particular form and manner, is not to be punished, unless the allegation made is untrue and the offender, acting with necessary care, ought to have been aware thereof. III. OPINION OF THE COMMISSION A. Complaint declared admissible 38. The Commission has declared admissible the applicant's complaint that his conviction by Austrian Courts for defamation and reproach with a previous criminal offence violates his right to freedom of expression within the meaning of Article 10 (Art. 10) of the Convention. B. Point at issue 39. Accordingly, the issue to be determined is whether there has been a violation of Article 10 (Art. 10) of the Convention. C. Article 10 (Art. 20) of the Convention 40. Article 10 (Art. 20) of the Convention provides, insofar as relevant: "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, ... for the protection of the reputation or rights of others, ...". 41. The applicant's conviction by the Klagenfurt Regional Court on 26 September 1986 constituted an interference with his right to freedom of expression. This interference contravenes Article 10 (Art.10) of the Convention if it is not justified under Article 10 para. 2 (Art. 10-2), as being prescribed by law, pursuing a legitimate aim and being necessary in a democratic society. 42. The Commission notes that the applicant's conviction was based on SS. 111 and 113 of the Austrian Criminal Code and considers that it was, therefore, prescribed by law. Furthermore, the conviction had the aim of protecting the reputation and rights of others, which is legitimate under Article 10 para. 2 (Art. 10-2). It remains to be determined whether the interference in question was necessary in a democratic society. 43. The applicant maintains that the interference with his freedom of expression was disproportionate to the legitimate aim pursued. He had intended to contribute to the political debate regarding the question whether a criminal offender is acceptable in a public function. The concept of reintegration of criminal offenders, underlying S. 113 of the Criminal Code, could not apply to politicians - their criminal past should be open to dicussion. Furthermore, he was entitled to compare the two accidents in question. The Government submit that the reintegration of criminal offenders into society and the protection of their private life outweigh a general interest in public information. These prevailing aims can only be achieved if the reproach with a previous criminal offence constitutes a criminal offence in itself, though with a minor penalty. Politicians cannot be excluded as their previous convictions in general only concern the private sphere. Furthermore, the applicant was convicted of defamation on the ground that he had imparted information the truth of which he failed to prove. 44. The Commission recalls that the adjective "necessary" within the meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a "pressing social need". The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision which covers the basic legislation and the decisions applying it, even those given by an independent court (cf. Eur. Court H.R., Lingens judgment of 8 July 1986, Series A No. 103, p. 25, para. 39 with further references). The Commission must determine whether the restriction imposed was proportionate to the legitimate aim pursued. 45. In exercising its supervisory function the Commission has to consider that freedom of expression, as secured in Article 10 para. 1 (Art. 10-1), constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to Article 10 para. 2 (Art. 10-2) freedom of expression applies 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. Furthermore, in a free political debate the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former 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 consequently display a greater degree of tolerance. No doubt Article 10 para. 2 (Art. 10-2) enables the reputation of others to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity, but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues (cf. Lingens judgment, op. cit. p. 26 para. 41 - 42). 46. The applicant was convicted because in his article he had referred to a criminal offence committed by F., the Deputy of the Head of the Carinthian Government, on the occasion of a traffic accident in 1966. His statements in this respect were moreover considered as defamatory on the ground of a misleading wording and comparison. 47. The background of the article in question was a political discussion in Carinthia concerning the conviction of the Mayor T., member of the Austrian People's Party, and its political implications. The applicant, Chairman of the Austrian People's Party in a Carinthian district, reacted to an interview given by the Head of the Carinthian Government, W, member of the Socialist Party, suggesting T.'s resignation. At the outset, the applicant agreed that the Mayor T. should resign. The applicant contended that the Head of the Carinthian Government had no moral right to criticise T. as he had been informed about the earlier traffic accident and related criminal behaviour of his Deputy. Thus there was a lack of political morals in his own party. 48. The Austrian courts punished the applicant under S. 113 of the Austrian Criminal Code for his reference to the Deputy's previous criminal offence as such. This provision, which aims at protecting in general the reintegration of criminal offenders, applies to any reproach with a previous criminal offence regardless of the actual need of protection in a particular case. The Austrian courts determined whether the applicant was excused under S. 114 para. 2 of the Criminal Code as having been compelled to make the incriminated statement. They considered that the applicant, in his position as Chairman of a small district organisation of the Austrian People's Party, did not have to react to the interview given by the Head of the Carinthian Government, who was a member of the Socialist Party. 49. The Commission notes that at the outset neither the applicant nor the Deputy F were directly involved in the political discussion concerning primarily the Mayor T. However, this discussion was generally related to the question of political morals. In this respect, the Head of the Government W., in his interview, had addressed the opponent, the Austrian People's Party, as a whole. 50. In the Commission's opinion, a politician, in particular in a high ranking position, must face true information relevant as to his political capabalities, which are determined not only from his political conduct, but also from his further conduct in public, including previous criminal convictions. Having regard to the general wording of S. 113 of the Criminal Code, the criteria for justification of a true statement under S. 114 para. 2, as applied by the Austrian courts in the present case, appear too strict and inadequate in the context of freedom of expression in an open political debate. 51. The considerations of the Austrian courts with regard to S. 113, in conjunction with S. 114 para. 2, of the Criminal Code do not, therefore, strike a fair balance between the demands of an open discussion of political issues and the protection of the reputation and rights of politicians, in particular their reintegration into society after a criminal offence. 52. Moreover, the Austrian courts considered the applicant's report defamatory within the meaning of S. 111 of the Criminal Code as the applicant had reproached the Deputy F. with an "accident after drinking" and compared the two traffic accidents in question, alleging lack of political morals. The courts interpreted the expression "accident after drinking", taking into account the context of the expression and in particular the general aim of the report, namely to compare the accidents, as referring to a blood alcohol content level of 0.8 per mille or more, the truth of which the applicant could not prove. On this ground the Austrian courts found an additional reason not to apply the disculpating exception under S. 114 para. 2 of the Criminal Code. 53. The applicant stated an opinion on the political morals in the Socialist Party in general and in particular as regards political consequences of a criminal conviction in connection with a traffic accident. The applicant criticised mainly the Head of the Carinthian Government W., who should care about political morals in his own Socialist Party, for having used strict criteria in comments concerning the opponent party. It was the applicant's appraisal that the two traffic accidents, although they differed as regards their implications under criminal law, had common features and thus could be compared with regard to the question of political consequences. 54. The applicant based his opinion on a description of F.'s accident which he considered to be relevant. In a general language he referred to the time and place of the traffic accident in question, the accidental death involved and the circumstance that F. had drunk alcohol before the accident. In this respect, the applicant used the expression "after drinking" ("in alkoholisiertem Zustand") and thereby took up the wording in the judgment of the Leoben Regional Court of 1967 which had considered F.'s driving "after drinking" ("Alkoholisierung") as aggravating circumstances. The expression "after drinking" was therefore, as such, correct and differed from the legal term of "drunken driving" ("Lenken eines Fahrzeugs in alkoholbeeinträchtigtem Zustand"). Its interpretation by the Austrian courts was influenced by their considerations as to the defamatory character of the comparison as a whole. It is true that the applicant did not expressly state that F. had not been convicted of drunken driving; however, he did not refer to the criminal proceedings against F. and his conviction at all. His brief description of F.'s accident was not presented in such a manner that it could only be understood as implying that F. had committed the offence of drunken driving. 55. The Commission observes that in a democratic society politicians have to accept criticism even if it is based on an annoying comparison of two incidents which might appear far-fetched. The factual statements supporting such criticism must be correct. However, in a short contribution to a discussion on the behaviour of politicians and their political morals, not every word can be weighed to exclude any possibility of misunderstanding. A narrow interpretation of factual statements in the light of the related critical opinion would be likely to impair the freedom of expression in such a debate. 56. In these circumstances the Commission finds that the applicant's conviction under SS. 111 and 113 of the Austrian Criminal Code was not proportionate to the legitimate aim pursued and, accordingly, not necessary in a democratic society for the protection of the reputation and rights of others. D. Conclusion 57. The Commission concludes, by 10 votes to 6 that there has been a violation of Article 10 (Art. 10) of the Convention. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD) OPINION DISSIDENTE DE M. J.-C. GEUS à laquelle se rallient MM. G. JÖRUNDSSON, J.-C. SOYER, F. MARTINEZ-RUIZ et Sir BASIL HALL Que les hommes politiques, plus que d'autres, fassent l'objet de critiques parfois très sévères est parfaitement normal puisque l'article 10 de la Convention, qui protège la libre expression des idées, place les auteurs les plus éminents du débat démocratique dans une position particulière. Que les opinions qu'ils ont émises, que les positions qu'ils ont prises, que la manière dont ils ont exercé leurs fonctions publiques soient contestées par leurs adversaires, par la presse, et, finalement, par tout citoyen, procède de la nature même d'un régime démocratique. Il n'en reste pas moins que la sphère de leur vie familiale et privée doit être protégée comme l'est celle de toute personne. Aux termes du paragraphe 2 de l'article 10, la liberté d'expression d'autrui peut être limitée en vue, notamment, de protéger la réputation et les droits des hommes politiques. Force est de constater, dans la présente affaire, que l'on est bien loin d'un grand débat d'idées, ce qui aurait autorisé que la pensée puisse s'exprimer sans entraves. Evoquant dans un article de presse un accident de roulage dont s'était rendu responsable M., un ami politique du requérant, alors qu'il était sous l'influence de la boisson, son taux d'alcoolémie étant de 1,75 gr. pour mille, le requérant a rappelé un autre accident de la circulation dont F., un homme politique appartenant à un autre parti, s'était rendu responsable dix-neuf ans auparavant, ajoutant que F. conduisait après avoir bu. En réalité, le taux d'alcoolémie de ce dernier était de O,8 au moment du test, et avait été estimé à O,6 ou O,7 au moment de l'accident, si bien que F. n'avait pas été poursuivi du chef d'ivresse au volant. Les termes utilisés par le requérant étaient falacieux et de nature à faire croire que F. était dans un état d'ivresse comparable à celui de M. Le fait que le requérant n'a pas utilisé les termes légaux pour décrire la prétendue ébriété de F. est ici sans importance ; en effet, l'ensemble de l'article tendait clairement à démontrer qu'un même état d'ivresse n'avait pas influencé la carrière politique de F. alors qu'il avait eu des conséquences négatives pour M. Les faits démontrent en outre que le requérant n'ignorait pas que les cas de F. et de M. étaient parfaitement dissemblables et ne pouvait dès lors prétendre être de bonne foi. Les principes énoncés par la Cour dans l'arrêt Lingens du 8 juillet 1986 conduisent à conclure qu'il n'y avait pas violation de l'article 10 en l'espèce. APPENDIX I HISTORY OF PROCEEDINGS Date Item ______________________________________________________________________ 1 February 1988 Introduction of the application 25 March 1988 Registration of the application Examination of Admissibility 4 July 1988 Commission's decision to invite the Government to submit observations on the admissibility and merits of the application 2 November 1988 Government's observations 5 January 1989 Applicant's observations in reply 11 October 1989 Commission's decision to declare the application admissible Examination of the merits 16 October 1989 Decision on admissibility transmitted to the parties 7 December 1989 Applicant's observations on the merits 18 December 1989 Government's observations on the merits 10 February 1990) Commission's consideration of the 7 July 1990 ) state of proceedings 8 December 1990 ) 8 January 1991 Commission's deliberations on the merits, final vote and adoption of the Report
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