CONSEIL
DE L'EUROPE
COUNCIL
OF EUROPE
COUR EUROPÉENNE DES DROITS DE L'HOMME
EUROPEAN COURT OF HUMAN RIGHTS
COURT (PLENARY)
CASE OF OBERSCHLICK v. AUSTRIA
(Application no. 11662/85)
JUDGMENT
STRASBOURG
23 May 1991
OBERSCHLICK v. AUSTRIA JUDGMENT
In the Oberschlick case
,
The European Court of Human Rights, taking its decision in plenary
session pursuant to Rule 51 of the Rules of Court
and composed of the
following judges:
Mr R. RYSSDAL, President,
Mr J. CREMONA,
Mr Thór VILHJÁLMSSON,
Mrs D. BINDSCHEDLER-ROBERT,
Mr F. GÖLCÜKLÜ,
Mr F. MATSCHER,
Mr L.-E. PETTITI,
Mr B. WALSH,
Sir Vincent EVANS,
Mr R. MACDONALD,
Mr C. RUSSO,
Mr R. BERNHARDT,
Mr A. SPIELMANN,
Mr J. DE MEYER,
Mr S.K. MARTENS,
Mrs E. PALM,
Mr I. FOIGHEL,
Mr A.N. LOIZOU,
Mr J.M. MORENILLA,
and also of Mr M.-A. EISSEN, Registrar, and Mr H. PETZOLD, Deputy
Registrar,
Having deliberated in private on 22 November 1990, as a Chamber, and
on 23 January and 25 April 1991 in plenary session,
Delivers the following judgment, which was adopted on the lastmentioned
date:
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 16 February 1990, within the threemonth
period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art.
47) of the Convention for the Protection of Human Rights and Fundamental

The case is numbered 6/1990/197/257. 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.

The amendments to the Rules of Court which entered into force on 1 April 1989 are
applicable to this case.
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OBERSCHLICK v. AUSTRIA JUDGMENT
Freedoms ("the Convention"). It originated in an application (no. 11662/85)
against the Republic of Austria lodged with the Commission under Article
25 (art. 25) by an Austrian citizen, Mr Gerhard Oberschlick, in June 1985.
The Commission's request referred to Articles 44 and 48 (art. 44, art. 48)
and to the declaration whereby Austria recognised the compulsory
jurisdiction of the Court (Article 46) (art. 46). The object of the request was
to obtain a decision as to whether or not the facts of the case disclosed a
breach by the respondent State of its obligations under Article 6 para. 1 and
Article 10 (art. 6-1, art. 10) of the Convention.
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d)
of the Rules of Court, the applicant stated that he wished to take part in the
proceedings and sought leave to present his case himself. On 24 April 1990
the President granted this leave, subject to the applicant's being assisted by
an Austrian jurist (Rule 30 para. 1, second sentence). At the same time he
authorised the applicant to use the German language (Rule 27 para. 3).
3. The Chamber to be constituted included ex officio Mr F. Matscher, the
elected judge of Austrian nationality (Article 43 of the Convention) (art.
43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On
26 March 1990 the President drew by lot, in the presence of the Registrar,
the names of the other seven members, namely Mr Thór Vilhjálmsson, Mrs
D. Bindschedler-Robert, Mr J. Pinheiro Farinha, Sir Vincent Evans, Mr N.
Valticos, Mr S.K. Martens and Mr I. Foighel (Article 43 in fine of the
Convention
and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21
para. 5) and, through the Registrar, consulted the Agent of the Austrian
Government ("the Government"), the Delegate of the Commission and the
applicant on the need for a written procedure (Rule 37 para. 1). In
accordance with the orders made in consequence, the registry received, on
29 June and 3 July 1990 respectively, the Government's and the applicant's
memorials.
In a letter of 19 July 1990 the Secretary to the Commission informed the
Registrar that the Delegate would submit his observations at the hearing.
Subsequently, the Secretary produced a number of documents requested by
the Registrar on the President's instructions.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 14 June 1990 that the
oral proceedings should open on 19 November 1990 (Rule 38).
6. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
- for the Government

Note by the Registrar: as amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
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OBERSCHLICK v. AUSTRIA JUDGMENT
Mr W. OKRESEK, Federal Chancellery, Agent,
Mr F. HAUG, Federal Ministry of Foreign Affairs,
Mr S. BENNER, Federal Ministry of Justice, Advisers;
- for the Commission
Mr L. LOUCAIDES, Delegate;
- for the applicant
Mr H. TRETTER, Assistant.
7. The Court heard their addresses and their replies to its questions.
During the hearing the Government and the applicant filed several
documents; the latter also lodged supplementary observations on the
application of Article 50 (art. 50) of the Convention. Subsequently the
Government was invited to comment thereon and replied on 21 January
1991. After the closing of the procedure, the registry received on 4 February
1991 several observations by the applicant which were rejected in
accordance with Rule 37 para. 1, second sub-paragraph.
8. On 22 November 1990 the Chamber had relinquished jurisdiction in
favour of the plenary Court (Rule 51).
9. Having taken note of the Government's agreement and the opinions of
the Commission and the applicant, the Court decided, on 23 January 1991,
to proceed to judgment without holding a further hearing (Rule 26).
AS TO THE FACTS
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
10. Mr Oberschlick, an Austrian journalist residing in Vienna, was at the
relevant time the editor of the review Forum.
A. Background to the case
11. On 29 March 1983 - during the parliamentary election campaign - it
was reported in a television programme that Mr Walter Grabher-Meyer,
then Secretary General of one of the political parties which participated in
the governing coalition, the Austrian Liberal Party (FPÖ), had suggested
that the family allowances for Austrian women should be increased by 50%
in order to obviate their seeking abortions for financial reasons, whilst those
paid to immigrant mothers should be reduced to 50% of their current levels.
He had justified his statement by saying that immigrant families were
placed in a discriminatory position in other European countries as well.
12. On 20 April 1983 the applicant and several other persons laid a
criminal information (Strafanzeige) against Mr Grabher-Meyer. However,
4
OBERSCHLICK v. AUSTRIA JUDGMENT
the Vienna public prosecutor's office decided on 1 June 1983 not to
prosecute him.
13. On the day it was laid, the full text of the criminal information was
published by the applicant in Forum. The cover page of the relevant issue
contained a summary of its contents, including the title : "Criminal
information against the Liberal Party Secretary General (Strafanzeige gegen
FPÖ-Generalsekretär)". The following text appeared at page 9:
(Translation)
"CRIMINAL INFORMATION against WALTER GRABHER-MEYER
Date of birth unknown, occupation: Secretary General, c/o FPÖ (Liberal Party),
Federal Central Office, Kärntnerstrasse 28, 1010 Vienna
ON SUSPICION OF
1. the misdemeanour (Vergehen) of incitement to hatred, contrary to Article 283 of
the Criminal Code,
2. the misdemeanour (Vergehen) of incitement to commit criminal offences and
expressing approval of criminal offences, contrary to Article 282 of the Criminal
Code, and
3. the offence (Verbrechen) of activities within the meaning of sections 3 and 3d of
the Constitutional Law of 8 May 1945 (StGBl. no. 13) on the prohibition of the
National Socialist Party (NSDAP) ("Prohibition Act").
THE FACTS
`The Secretary General of the Liberal Party, Mr Walter Grabher-Meyer today
proposed raising family allowances for Austrian women by 50%, the aim of this
measure being to deter Austrian women from having abortions for financial reasons.
At the same time Walter Grabher-Meyer demanded that family allowances from the
Austrian State for mothers of migrant workers' families (Gastarbeitermütter) should
be reduced to half the present level. Grabher-Meyer stated that migrant worker
families are placed in a less favourable position in other European countries too.'
ORF (Austrian Broadcasting Corporation), Television programmes 1 + 2 Late News
29.3.1983
Count 1:
Walter Grabher-Meyer's public statement was made in a way which offends human
dignity and is directed against a group of persons defined by their membership of a
people, ethnic group or State; in the present case, by the fact that they do not have
Austrian citizenship.
The contrasting treatment of Austrian women, who are to be spared the need for
abortions by being placed in a better financial position, and mothers of migrant
workers' families who are not only not to be treated in the same way, but who are
moreover, according to Walter Grabher-Meyer's suggestion, to have their family
5
OBERSCHLICK v. AUSTRIA JUDGMENT
allowances halved (allowances which in his opinion are too low to prevent abortion
for financial reasons), gives the impression, which must in all likelihood have been
intended by him, that mothers of migrant workers' families and their unborn children
are an inferior, worthless or less valuable sector of the population as a whole, and that
it is in the interests of the Austrian people for such mothers to have abortions.
Walter Grabher-Meyer has thereby presented migrant workers as being undeserving
or unworthy of the respect of their fellow human beings; the authors of this
information regard this as a tendentious incitement to hatred of and contempt for
migrant workers in Austria, object thereto and lay this information.
Count 2:
Walter Grabher-Meyer is publicly proposing - and thereby calling in particular on
the Austrian Parliament and the Federal Government to introduce - measures which
constitute the substance of the offence of activities within the meaning of sections 3
and 3d of the Prohibition Act (see below).
Count 3:
Under section 3 of the Prohibition Act, activities of any sort on behalf of the
NSDAP or its aims are prohibited, even if such activities are carried out outside that
organisation.
Section 3d of the Prohibition Act says that "A person who in public or in the
presence of several persons ... instigates, incites or seeks to induce conduct prohibited
by section 1 or section 3, in particular any person who for this purpose glorifies or
extols the aims, organs or actions of the NSDAP, shall, unless a more serious offence
appears therein, be punished by a term of imprisonment of from 10 to 20 years and
confiscation of his entire property".
The authors of this information refer in this connection to the 25 points of the
NSDAP Manifesto of 24.2.1920. They note that, until the passing of the NSDAP
Prohibition Act of 8 May 1945 by the Provisional Government, this manifesto
remained the party's sole programme and that it therefore contains in authentic and
complete form the aims of the NSDAP's programme. It says inter alia that:
`5. A person who does not have German nationality is to be able to live in Germany
only as a visitor and must be subject to aliens legislation.
7. We demand that the State undertake, first and foremost, to provide opportunities
for employment and the subsistence of its citizens. If it is not possible to feed the
entire population of the State, citizens of foreign nations (non-citizens) must be
expelled from the Reich.
8. All further immigration of non-Germans is to be prevented. We demand that all
non-Germans who have immigrated to Germany since 2 August 1914 be compelled to
leave the Reich immediately.'
Creating a hostile attitude to citizens of foreign nations (non-citizens), and placing
them in a less favourable position, to such an extent that it became difficult for them to
6
OBERSCHLICK v. AUSTRIA JUDGMENT
live in the Reich and they were forced to leave, were essential aims of the NSDAP and
its policy.
Walter Grabher-Meyer's proposal to increase family allowances for Austrian
women by 50% in order to stop them having abortions for financial reasons, and at the
same time to reduce family allowances for mothers of migrant workers' families to
half the present level, represents a cynical means of driving citizens of foreign nations
out of the Republic of Austria and indeed forcing those who stay in the Republic of
Austria to have abortions; being entirely consistent with and corresponding to the
philosophy and aims of the NSDAP that `the State must first and foremost provide
opportunities for employment and the subsistence of its citizens', these proposals are
aimed, amongst other things, at improving the living conditions of citizens (Austrian
mothers) by worsening those of migrant workers and, at the same time, at preventing
all further immigration of non-Austrians (see above, NSDAP points 7 and 8).
From this it is apparent that Walter Grabher-Meyer has undertaken activities which
correspond to the aims of the NSDAP, or at the very least has extolled its measures
against citizens of foreign nations by proposing that such measures be applied in
Austria.
As to the accuracy of these allegations, the authors of this information rely on their
own statements, the ORF newsreaders' scripts for the Late News on television
programmes 1 and 2 on 29.3.1983 and the NSDAP manifesto of 24.2.1920.
This criminal information is therefore laid against Walter Grabher-Meyer etc.
(Signed):..., Gerhard Oberschlick"
B. Private prosecution against the applicant
1. First set of proceedings
14. On 22 April 1983 Mr Grabher-Meyer brought a private prosecution
for defamation (üble Nachrede, Article 111 of the Criminal Code - see
paragraph 25 below) against the applicant and the other signatories of the
criminal information. He also sought the immediate seizure of the relevant
issue of Forum (sections 33 and 36 of the Media Act - Mediengesetz) and
compensation from its owners (section 6 of the Media Act - see paragraph
26 below).
15. The Review Chamber (Ratskammer) of the Vienna Regional
Criminal Court (Landesgericht für Strafsachen - "the Regional Court")
decided on the same day to order the discontinuance of the proceedings
under Article 485 para. 1 (4) of the Code of Criminal Procedure (see
paragraph 28 below). It found that the publication did not constitute the
criminal offence defined in Article 111 of the Criminal Code, since the case
did not concern the wrongful attribution of a certain (dishonest) behaviour,
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OBERSCHLICK v. AUSTRIA JUDGMENT
but only value-judgments (Bewertung) on behaviour which, as such, had
been correctly described.
16. On appeal by Mr Grabher-Meyer the Vienna Court of Appeal
(Oberlandesgericht), composed of Mr Cortella, as President, and Mr
Schmidt and Mr Hagen, quashed the above decision on 31 May 1983. It
held that for the average reader the publication must have created the
impression that a contemptible attitude (verächtliche Gesinnung) was
ascribed to Mr Grabher-Meyer. The authors had disregarded the standards
of fair journalism by going beyond a comparative and critical analysis of his
statements and insinuating motives which he had not himself expressed, in
particular by alleging that he had been guided by National Socialist
attitudes. Accordingly, the case was referred back to the Regional Court.
2. Second set of proceedings
(a) Before the Regional Court
17. On 20 July 1983 the defamation proceedings against the signatories
of the criminal information other than Mr Oberschlick were severed from
the main proceedings by the Regional Court and referred for decision to the
Vienna District Court for Criminal Matters (Strafbezirksgericht), on the
ground that those persons had not been associated with the publication in
Forum. On 9 April 1984 the former proceedings were discontinued.
18. On 25 July 1983 the Regional Court ordered the publication in Forum
of information about the defamation proceedings against the applicant
(section 37 of the Media Act - see paragraph 26 below). This decision was
confirmed by the Court of Appeal on 7 September 1983.
19. The Regional Court held a hearing on 11 May 1984, during which it
heard evidence from Mr Grabher-Meyer and the applicant.
The latter offered evidence that what he had written was true
(Wahrheitsbeweis), claiming that in this respect it was sufficient to establish
that a criminal information had actually been laid in the terms published in
Forum. He argued that by reporting his suspicions he had been fulfilling a
legal duty and that he was therefore exculpated under Article 114 of the
Criminal Code (see paragraph 25 below). The fact that the legal
qualification of Mr Grabher-Meyer's statements might have been erroneous
could not be held against him because he was not a lawyer.
20. On the same day the applicant was convicted of defamation (Article
111 paras.1 and 2) and sentenced to a fine of 4,000 Austrian schillings or, in
default, to 25 days' imprisonment. The Regional Court also made the
following orders against the owners (Medieninhaber) of Forum - the
Association of Editors and Employees of Forum (Verein der Redakteure
und Angestellten des Forum): the seizure of the relevant issue of Forum, the
publication of its judgment (sections 33 and 34 of the Media Act), and the
award to Mr Grabher-Meyer of compensation of 5,000 schillings (section 6
8
OBERSCHLICK v. AUSTRIA JUDGMENT
of the Media Act). In addition, they were declared to be jointly and
severally liable for the payment of the fine (section 35 para. 1 of the Media
Act - see paragraph 26 below).
In its judgment of 11 May 1984, the Regional Court held that it was
bound by the opinion expressed by the Court of Appeal in its decision of 31
May 1983 (see paragraph 16 above). Therefore the objective conditions for
the offence of defamation were satisfied.
Mr Oberschlick also fulfilled the subjective requirements because he had
acknowledged that he had intended to draw attention to what, in his opinion,
was the National Socialist way of thinking of Mr Grabher-Meyer. Mr
Oberschlick had, however, not established the truth of his allegations nor
justified them. In the Regional Court's view, it was not sufficient that this
politician had made the criticised statements and that a criminal information
regarding it had been laid in the terms published in Forum. The statements
in question did not necessarily show the intentions Mr Oberschlick had
inferred therefrom. It could also be understood as a proposal to reallocate
the notoriously limited resources of the Family Compensation Fund in
favour of Austrians in order to stem the influx of migrant workers. This
admittedly revealed a xenophobic way of thinking, but did not yet amount
to a National Socialist attitude or to a criminal offence.
The fact that the publication involved only a reprint of the criminal
information did not exculpate the applicant. Whilst everyone was free to
report to the police facts which he considered constituted a criminal offence,
it went far beyond the mere reporting of a criminal suspicion to publish the
text of the information in a periodical and thus to make it accessible to the
general public. There was no justification for doing so. In this respect, the
applicant could not invoke a legal duty under Article 114 of the Criminal
Code, namely to draw the public's attention to the (allegedly) Nazi
mentality of a high-ranking official of a governing party. That allegation
came under the general rule that a person who had made an attack of this
kind through the media had to prove that it was true.
21. Mr Oberschlick subsequently requested on several occasions to be
supplied with a copy of the record of the hearing, but without success. It
seems that it was not until after the communication of the written judgment
on 24 August 1984 that the record reached the applicant. On 6 September he
applied for a rectification of the trial record which, according to him, failed
to mention certain statements by Mr Grabher-Meyer which were of
importance for assessing the evidence concerning the truth of the
applicant's allegations. He had allegedly stated at the trial, inter alia, that he
was opposed to excessive immigration of foreigners (Überfremdung) and
that for tactical reasons he approved the "stop foreigners" campaign
("Ausländer Halt") which had been conducted by a right-wing political
party and had subsequently been prohibited. He had also allegedly admitted
9
OBERSCHLICK v. AUSTRIA JUDGMENT
having considered social-policy measures directed against the children of
foreign workers in Austrian schools.
On 4 October 1984 the Regional Court rejected this application, after
having consulted the transcriber, on the ground that after five months the
judge had no recollection of the detailed statements. It nevertheless pointed
out that although the latter did not appear in the transcriber's notes, similar
statements did.
(b) Before the Court of Appeal
22. On 17 December 1984 the Vienna Court of Appeal, composed of the
same judges and again presided over by Mr Cortella (see paragraph 16
above), dismissed the applicant's appeal (Berufung).
In relation to a complaint concerning the Regional Court's decision of 4
October 1984 (see paragraph 21 above), the Court of Appeal observed that
this decision was final. Furthermore, it did not appear that the Regional
Court had failed to determine any requests made during the trial concerning
the record. In any event, the statements in question were irrelevant for the
judgment on the merits of the matter.
23. The Court of Appeal then dealt with the substantive issues. In its
view, the Regional Court had not been legally bound by the Court of
Appeal's earlier decision concerning the qualification of the offence. The
Court of Appeal, however, saw no reason to depart from that decision. What
was decisive was that Mr Grabher-Meyer was alleged to have had motives
which he himself had not expressed. The case therefore did not concern the
(possibly incorrect) legal qualification of his statements, but allegations
putting a stain on his character which objectively could not be inferred from
those statements.
According to the Court of Appeal, the Regional Court had rightly held
that what had to be proved was the truth of the critical inferences as to Mr
Grabher-Meyer's character made in the article and had rightly found that the
applicant had failed to bring this proof. The fact that a short report on the
criminal information against this politician would not have been punishable
did not justify the conclusion that a full reprint of it was not punishable
either. The publication in the form of a criminal information was intended to
ensure that the accusation as to his character made therein would have a
particularly telling effect on the average reader. Neither the right to report a
criminal suspicion (Article 86 para. 1 of the Code of Criminal Procedure see
paragraph 27 below) nor the exception provided for in Article 114 para.
2 of the Criminal Code (see paragraph 25 below) justified the publication
because it was not appropriate (mangels Anlassadäquanz): it had been
insinuated, without a sufficient basis in the facts, that Mr Grabher-Meyer
held National Socialist attitudes.
24. The written text of the judgment was served upon the applicant on 7
January 1985.
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OBERSCHLICK v. AUSTRIA JUDGMENT
On 25 September 1985 he requested the Attorney-General
(Generalprokurator) to file a plea of nullity for the preservation of the law
(Nichtigkeitsbeschwerde zur Wahrung des Gesetzes), but he was informed
on 9 January 1986 that the Attorney-General did not intend to take any
action.
II. THE RELEVANT DOMESTIC LAW
A. Substantive law applicable
1. The offence of defamation
25. Article 111 of the Criminal Code provides:
"1. Anyone who in such a way that it may be perceived by a third person accuses
another of possessing a contemptible character or attitude or of behaviour contrary to
honour or morality and of such a nature as to make him contemptible or otherwise
lower him in public esteem shall be liable to imprisonment not exceeding six months
or a fine ...
2. Anyone who commits this offence in a printed document, by broadcasting or
otherwise in such a way as to make the defamation accessible to a broad section of the
public shall be liable to imprisonment not exceeding one year or a fine ...
3. The person making the statement shall not be punished if it is proved to be true.
As regards the offence defined in paragraph 1, he shall also not be liable if
circumstances are established which gave him sufficient reason to assume that the
statement was true."
Under Article 112, "evidence of the truth and of good faith shall not be admissible
unless the person making the statement pleads the correctness of the statement or his
good faith ...".
Under Article 114 para. 1 "conduct of the kind mentioned in Article
111 ... is justified if it constitutes the fulfilment of a legal duty or the
exercise of a right". Under paragraph 2 of the same provision "a person who
is forced for special reasons to make an allegation within the meaning of
Article 111 ... in the particular form and manner in which it was made, is
not to be punished, unless that allegation is untrue and the offender could
have been aware thereof if he had acted with the necessary care".
2. The relevant provisions of the Media Act
26. Section 6 of the Media Act provides for the strict liability of the
publisher in cases of defamation; the victim can thus claim compensation
from him. Furthermore, the publisher may be declared to be liable jointly
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OBERSCHLICK v. AUSTRIA JUDGMENT
and severally with the person convicted of a media offence for the fines
imposed and for the costs of the proceedings (section 35).
The person defamed may request the forfeiture of the publication by
which a media offence has been committed (section 33). Under section 36
he may also request the immediate seizure of such a publication if section
33 is likely to be applied subsequently, unless the adverse consequences of
seizure would be disproportionate to the legal interest to be protected by this
measure. Seizure shall not be ordered if that interest can instead be
protected by the publication of information that criminal proceedings have
been instituted (section 37). Finally, the victim may request the publication
of the judgment in so far as this appears necessary for the information of the
public (section 34).
B. Procedural provisions applicable
1. Criminal information
27. The first sentence of Article 86 para. 1 of the Code of Criminal
Procedure reads as follows:
"Anybody who acquires knowledge of criminal conduct such as automatically
attracts public prosecution shall have the right to report it."
Furthermore, section 3 (g) para. 2 of the Prohibition Act imposes a duty
to denounce offences under this Act in certain circumstances. Failure to
fulfil this duty may be punished by imprisonment for between five and ten
years.
2. Defamation proceedings
28. Under the special simplified procedure - which was followed in this
instance -, if a single judge of the Regional Court is of the opinion that the
facts of the case do not constitute a criminal offence, he shall seek a
decision by the Review Chamber of the Regional Court (Article 485 para. 1
(4) of the Code of Criminal Procedure), which shall order the
discontinuance of the proceedings if it shares his view (Article 486 para. 3).
The prosecution may appeal against such an order (Article 486 para. 4). If
the Court of Appeal upholds the appeal and refers the case back to the
Regional Court, the following special rules apply:
Article 486 para. 5
"The trial court shall not be bound by decisions of the Review Chamber or of the
court of second instance which confirm ... that the facts constitute a criminal
offence ..."
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OBERSCHLICK v. AUSTRIA JUDGMENT
Article 489 para. 3
"Those members of the court of second instance who participated at a previous stage
in the decision of the Review Chamber to discontinue the proceedings or in the
determination of an appeal against such a decision (Article 486) shall be disqualified
from hearing or determining an appeal."
3. General rules concerning disqualification of or challenge to a judge
29. Disqualification of a judge (Ausschliessung) is governed by the
following provisions of the Code of Criminal Procedure:
Article 70 para. 1
"A judge is obliged to bring circumstances which disqualify him to the immediate
attention of the president of the court of which he is a member ..."
Article 71
"From the moment when grounds for his disqualification come to his knowledge,
every judicial officer (Gerichtsperson) shall refrain from any judicial acts, on pain of
nullity. The judicial officer concerned may carry out judicial acts which are urgent,
but only where there is danger in delay and if another judge or registrar cannot be
appointed immediately. ..."
30. Furthermore, under Article 72 the parties to the proceedings may
challenge (ablehnen) a judge if they can show that there are reasons for
doubting his complete impartiality. Although Article 72 refers expressly to
grounds "other than disqualification", it is the practice of the courts to apply
Article 72 also in cases where a party raises an issue relating to a judge's
disqualification. In fact, the disqualification of a first-instance judge cannot
subsequently be pleaded in nullity proceedings unless he was challenged
before or at the trial or immediately after the ground for disqualification
became known to the party (Article 281 para. 1 (1) of the Code of Criminal
Procedure). The procedure applicable in this respect is the following:
Article 73
"Where a party seeks to challenge a judge, he may make an application in writing to
the court of which the judge is a member or make an oral declaration to this effect
before the registrar. He may do this at any time, except that, where the challenge
concerns a member of the trial court, it must be made not later than 24 hours before
the beginning of the hearing and, where it is directed against the whole court, not later
than three days after service of the summons to attend the hearing. The application
must specify and, as far as possible, justify the reasons for the challenge."
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OBERSCHLICK v. AUSTRIA JUDGMENT
Article 74
"(1) As a rule it is for the president of the court of which the challenged judicial
officer is a member to decide on the admissibility of the challenge.
(2) ...
(3) No appeal lies against such a decision ..."
4. Rules concerning trial records
31. Records of hearings before criminal courts in Austria are usually
drawn up in summary form unless, for special reasons, the court orders the
preparation of a shorthand transcript. A shorthand transcript must be
prepared if this is requested by a party who advances the costs thereof
(Article 271 para. 4).
In other cases the record is limited to a note of all essential formalities of
the proceedings. The parties are free to request the recording of specific
points in order to preserve their rights (Article 271 para. 1, applicable to
single-judge proceedings by virtue of Article 488).
32. Where the establishment of a verbatim version is important, the judge
shall, upon the request of a party, order that particular passages be read out
at once (Article 271 para. 2).
The answers of the defendant and the depositions of the witnesses and
experts shall be mentioned only if they contain deviations from, alterations
of or additions to the statements recorded in the files or if the witnesses or
experts are heard for the first time at the trial (Article 271 para. 3).
33. The parties are free to inspect the completed record and its
appendices and to make copies thereof (Article 271 para. 5). Case-law has
established that they are entitled to request additions or corrections to the
record at the trial or afterwards, as long as an appeal is pending
(Evidenzblatt, "EvBl", 1948, p. 32 and Sammlungstrafsachen, 32/108). The
court's decision on such a request is final and is not open to appeal
(Richterzeitung, 1967, p. 88, EvBl. 1948/243).
It is only total failure to prepare a trial record that is a ground of nullity
(Article 281 para. 1 (3)). Other deficiencies in the record cannot be pleaded
in nullity proceedings, except failure to decide on motions concerning the
record which were made during the trial (Article 281 para. 1 (4)).
PROCEEDINGS BEFORE THE COMMISSION
34. In his application (no. 11662/85) of 16 June 1985 to the Commission,
Mr Oberschlick alleged violations of Article 6 para. 1 (art. 6-1) (right to a
fair hearing by an impartial tribunal established by law) and Article 10 (art.
14
OBERSCHLICK v. AUSTRIA JUDGMENT
10) (right to freedom of expression) of the Convention, as a result of the
defamation proceedings instituted against him and his subsequent
conviction.
35. The Commission declared the application admissible on 10 May
1989. In its report of 14 December 1989 (Article 31) (art. 31), the
Commission expressed the opinion that there had been a violation of Article
10 (art. 10) (nineteen votes to two) and also of Article 6 para. 1 (art. 6-1) in
relation to the proceedings before the Court of Appeal (twenty votes to one),
but not in relation to the proceedings before the Regional Court
(unanimously).
The full text of the Commission's opinion and the two dissenting
opinions contained in the report is reproduced as an annex to this judgment
.
FINAL SUBMISSIONS MADE TO THE COURT
36. In his memorial of 3 July 1990 the applicant made the following
requests:
1. that the Court find:
(a) that his conviction and sentence constituted a violation of his right to
freedom of expression as guaranteed by Article 10 (art. 10) of the
Convention;
(b) that the proceedings at first and second instance, which led to his
conviction and sentence, constituted a violation of his right to a fair trial as
guaranteed by Article 6 para. 1 (art. 6-1) of the Convention;
2. that the Court instruct the Republic of Austria to annul the seizure of
issue no. 352/353 of the magazine Forum;
3. that, in accordance with Article 50 (art. 50) of the Convention, the
Court afford the applicant just satisfaction comprising specified costs and
compensation for the non-material damage occasioned by the injustice of
which he had been the victim.
The Government confirmed at the hearing held on 19 November 1990
the conclusions set out in their memorial of 29 June 1990. They asked the
Court to reject the application because it had been lodged out of time
(Article 26 in fine of the Convention) (art. 26), or to find that neither Article
6 para. 1 (art. 6-1) nor Article 10 (art. 10) of the Convention had been
violated.

Note by the Registrar. For practical reasons this annex will appear only with the printed
version of the judgment (volume 204 of Series A of the Publications of the Court), but a
copy of the Commission's report is obtainable from the registry.
15
OBERSCHLICK v. AUSTRIA JUDGMENT
AS TO THE LAW
I. PRELIMINARY OBJECTION
37. By way of preliminary objection, the Government pleaded, as they
had already done before the Commission, that Mr Oberschlick had not
complied with the rule, in Article 26 (art. 26) of the Convention, that
applications to the Commission must be lodged "within a period of six
months from the date on which the final decision was taken" ("dans le délai
de six mois,  partir de la date de la décision interne définitive"). This plea
was made with regard, firstly, to his main complaints under Articles 6 para.
1 and 10 (art. 6-1, art. 10) and, secondly, to the specific complaint
concerning the rectification of the trial record.
A. The main complaints under Articles 6 para. 1 and 10 (art. 6-1, art.
10)
38. The Government observed that the application did not reach the
Commission until 25 June 1985, whereas the final decision by the Vienna
Court of Appeal had been pronounced orally more than six months
previously, on 17 December 1984. In their opinion the date of the
communication of the written text of the judgment (7 January 1985) was
irrelevant for this purpose (see paragraphs 22 and 24 above).
Mr Oberschlick contended in reply that his application must be deemed
to have been introduced on the date which it bore, namely 16 June 1985. In
any event, the six-month period should run from service of the written text
of the judgment, since no substantial application could be made to the
Commission on the basis of the summary of the court's reasoning given
when the judgment was pronounced.
39. Following its usual practice, the Commission accepted that the
application was filed on 16 June 1985, that is the last day of the six-month
time-limit "if [it] should have to be counted as from the date when the final
judgment was pronounced orally".
40. Having regard to the circumstances of the case, the Court accepts
that, as regards his main complaints, Mr Oberschlick's application was
posted on 16 June 1985 and, accordingly, was introduced within the timelimit
prescribed by Article 26 (art. 26).
16
OBERSCHLICK v. AUSTRIA JUDGMENT
B. Complaint concerning the rectification of the trial record (Article
6 para. 1) (art. 6-1)
41. The Government further submitted that, as regards the refusal of Mr
Oberschlick's request for rectification of the trial record, his application was
clearly out of time, because the six-month period began to run on 30
October 1984, when the Regional Court's decision of 4 October 1984 in the
matter - which was final - was served on the applicant.
42. The Court does not share this view. National proceedings would be
unduly delayed and complicated if applications concerning procedural
decisions, such as the present one, had to be filed before the final decision
on the merits. Consequently, with regard to such procedural decisions, even
if they have become final before the termination of the proceedings, the sixmonth
period mentioned in Article 26 (art. 26) runs only as from the same
date as that which is relevant with regard to the final decision on the merits.
The application thus cannot be deemed to be out of time in this respect
either.
C. Conclusion
43. In conclusion, the Government's preliminary objection has to be
rejected.
II. ALLEGED VIOLATION OF ARTICLE 6 para. 1 (art. 6-1)
44. Mr Oberschlick alleged that he had not received a "fair hearing" by
an "impartial tribunal established by law", within the meaning of Article 6
para. 1 (art. 6-1) of the Convention which, as far as relevant, provides:
"In the determination of ... any criminal charge against him, everyone is entitled to a
fair ... hearing ... by an independent and impartial tribunal established by law..."
A. Proceedings before the Vienna Regional Court
1. Rectification of the trial record
45. Before the Commission, the applicant complained of the Regional
Court's refusal to rectify the trial record which, he said, did not accurately
reproduce certain statements made by Mr Grabher-Meyer, the private
prosecutor, that were of particular importance for proving the truth of the
applicant's allegations (see paragraph 21 above).
In its report (paragraph 85) the Commission concluded that there had
been no violation of Article 6 para. 1 (art. 6-1) on this account. The
applicant declared before the Court that, with one exception relating to
17
OBERSCHLICK v. AUSTRIA JUDGMENT
another point, he fully shared the conclusions of the Commission and he did
not go further into the question of the rectification of the trial record. In
these circumstances the Court sees no reason to examine it.
2. Fairness of the proceedings
46. Mr Oberschlick claimed that he had been deprived of a fair trial in
the second set of proceedings, in that on 11 May 1984 the Regional Court
had erroneously considered itself bound by the Court of Appeal's decision
in the first set of proceedings (see paragraphs 20 and 23 above).
47. Although the Regional Court's finding was held to be contrary to
domestic law (Article 486 para. 5 of the Code of Criminal Procedure, see
paragraph 28 above), it does not, in the Court's view, constitute of itself a
violation of the Convention.
The Regional Court in fact considered the evidence before it and reached
the fully-reasoned conclusion that the applicant was guilty (see paragraph
20 above). This decision was subsequently upheld on appeal.
B. Proceedings before the Court of Appeal
48. Before the Commission Mr Oberschlick contended mainly that the
Vienna Court of Appeal, when hearing his case in the second set of
proceedings, was not an "independent and impartial tribunal" and was not
"established by law" because, contrary to Article 489 para. 3 of the Code of
Criminal Procedure (see paragraph 28 above), it was presided over by the
same judge as in the first set.
Before the Court Mr Oberschlick supplemented this complaint by
submitting that in the meantime he had been led to believe that not only the
presiding judge but also the other two appeal judges had participated on
both occasions. From the Government's reply to a question put by the Court
it then appeared that this was correct.
49. The Commission concluded that, as a result of the participation of a
judge who should have withdrawn from the case in accordance with Article
489 para. 3 of the Code of Criminal Procedure, the Court of Appeal was on
the second occasion not "established by law" and, as a separate issue, not
"impartial" (see paragraphs 99 and 103 of its report).
50. The Court notes that the applicant's two complaints coincide in
substance.
Article 489 para. 3 of the Code of Criminal Procedure, which lays down
that the Court of Appeal shall not comprise, in a case like this, any judge
who has previously dealt with it in the first set of proceedings (see
paragraph 28 above), manifests the national legislature's concern to remove
all reasonable doubts as to the impartiality of that court. Accordingly the
failure to abide by this rule means that the applicant's appeal was heard by a
18
OBERSCHLICK v. AUSTRIA JUDGMENT
tribunal whose impartiality was recognised by national law to be open to
doubt.
51. The Government argued that by failing, at the hearing of 17
December 1984, to challenge or raise any objection to the participation of
the presiding judge (Articles 73, 281 para. 1, sub 1, and 345 para. 2 of the
Code of Criminal Procedure), the applicant had waived his right to have him
replaced.
According to the Court's case-law, waiver of a right guaranteed by the
Convention - in so far as it is permissible - must be established in an
unequivocal manner (see, inter alia, the Barber, Messegué and Jabardo
judgment of 6 December 1988, Series A no. 176, p. 35, para. 82).
Here, not only the President but also the other two members of the Court
of Appeal should have withdrawn ex officio in accordance with Article 489
para. 3 of the Code of Criminal Procedure. Whatever the position might
have been with respect to the presiding judge, neither the applicant nor his
counsel were aware until well after the hearing of 17 December 1984 that
the other two judges had also participated in the decision of 31 May 1983.
It is thus not established that the applicant had waived his right to have
his case determined by an "impartial" tribunal.
52. There has accordingly been a violation of Article 6 para. 1 (art. 6-1)
of the Convention in this respect.
III. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
A. The issues to be decided
53. According to Article 10 (art. 10) of the Convention,
"1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary."
Mr Oberschlick alleged that his conviction for defamation and the other
related court decisions (see paragraph 20 above) had breached his right to
freedom of expression as guaranteed in this Article.
19
OBERSCHLICK v. AUSTRIA JUDGMENT
54. It was not disputed that the applicant's conviction by the Vienna
Regional Court on 11 May 1984 (see paragraph 20 above), as upheld by the
Vienna Court of Appeal on 17 December 1984 (see paragraphs 22-23
above), constituted an "interference" with his right to freedom of
expression.
Nor was it contested that this interference was "prescribed by law",
namely Article 111 of the Criminal Code (see paragraph 25 above), and was
aimed at protecting the "reputation or rights of others" within the meaning
of Article 10 para. 2 (art. 10-2) of the Convention.
Argument before the Court concentrated on the question whether the
interference was "necessary in a democratic society" to achieve that aim.
55. The applicant stressed that in a democratic society the role of
periodicals like Forum included critical comment on social or legal policy
proposals made by politicians. In this regard the press should be free to
choose the form of comment it thought most appropriate to its aim. In the
present case he had limited himself to reporting and giving his own
interpretation of Mr Grabher-Meyer's proposal with regard to family
allowances for foreigners. The Austrian courts had denied him the right not
only of giving his opinion as to whether the proposal constituted a revival of
National Socialism, but also of making historical comparisons on the basis
of present facts.
The applicant's complaint was accepted by the Commission.
56. According to the Government, Mr Oberschlick had overstepped the
limits of justifiable and reasonable criticism. The impugned publication
amounted, according to the Austrian courts, to an accusation that Mr
Grabher-Meyer held National Socialist ideas, the impact of this accusation
being strengthened by the form chosen. They held that the applicant had not
been able to prove that his accusation was well-founded and that he was
therefore guilty of defamation.
In the opinion of the Government, it was not for the European Court to
decide whether this reasoning of the Austrian courts was correct; this
followed from the margin of appreciation to be left to the national
authorities: they were better placed than the international judge to determine
what matters should be regarded as defamatory, since this depended to a
certain extent on national conceptions and legal culture.
B. General principles
57. The Court recalls that freedom of expression, as secured in paragraph
1 of Article 10 (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 paragraph 2 (art. 5-2), 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
20
OBERSCHLICK v. AUSTRIA JUDGMENT
that offend, shock or disturb; such are the demands of that pluralism,
tolerance and broadmindedness without which there is no "democratic
society" (see, inter alia, the Handyside judgment of 7 December 1976,
Series A no. 24, p. 23, para. 49, and the Lingens judgment of 8 July 1986,
Series A no. 103, p. 26, para. 41).
Article 10 (art. 10) protects not only the substance of the ideas and
information expressed, but also the form in which they are conveyed.
58. These principles are of particular importance with regard to the press.
Whilst 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 (see,
mutatis mutandis, the Sunday Times judgment of 26 April 1979, Series A
no. 30, p. 40, para. 65, and the above-mentioned Lingens judgment, loc.
cit.).
Freedom of the press affords the public one of the best means of
discovering and forming an opinion of the ideas and attitudes of political
leaders. This is underlined by the wording of Article 10 (art. 10) where the
public's right to receive information and ideas is expressly mentioned. More
generally, freedom of political debate is at the very core of the concept of a
democratic society which prevails throughout the Convention (see the
above-mentioned Lingens judgment, Series A no. 103, p. 26, para. 42).
59. The limits of acceptable criticism are accordingly wider with regard
to a politician acting in his public capacity than in relation to a private
individual. 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 display a greater degree of tolerance, especially when he
himself makes public statements that are susceptible of criticism.
A politician 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 (see the above-mentioned Lingens judgment, Series A no.
103, ibid.).
60. The Court's task in this case has to be seen in the light of these
principles. What are at stake are the limits of acceptable criticism in the
context of public debate on a political question of general interest. In such
cases the Court has to satisfy itself that the national authorities did apply
standards which were in conformity with these principles and, moreover,
that in doing so they based themselves on an acceptable assessment of the
relevant facts.
For this purpose the Court will consider the impugned judicial decisions
in the light of the case as a whole, including the applicant's publication and
the context in which it was written (see, inter alia, the above-mentioned
Lingens judgment, Series A no. 103, p. 25, para. 40).
21
OBERSCHLICK v. AUSTRIA JUDGMENT
C. Application of these principles
61. The applicant was convicted for having reproduced in Forum the text
of a criminal information which he and other persons had laid against Mr
Grabher-Meyer. During an election campaign, this politician had made
certain public statements, reported in a television programme, concerning
foreigners' family allowances, and proposed that such persons should
receive less favourable treatment than Austrians (see paragraphs 11-13
above). The applicant had expressed the opinion that this proposal
corresponded to the philosophy and the aims of National Socialism as stated
in the NSDAP Manifesto of 1920 (see paragraph 13 above).
The Court agrees with the Commission that the insertion of the text of
the said information in Forum contributed to a public debate on a political
question of general importance. In particular, the issue of different treatment
of nationals and foreigners in the social field has given rise to considerable
discussion not only in Austria but also in other member States of the
Council of Europe.
Mr Oberschlick's criticisms, as the Commission pointed out, sought to
draw the public's attention in a provocative manner to a proposal made by a
politician which was likely to shock many people. A politician who
expresses himself in such terms exposes himself to a strong reaction on the
part of journalists and the public.
62. In its judgment of 11 May 1984 the Regional Court found that the
article in question, "despite its designation as a criminal information, gives
the impression of being intended to condemn" the character of the
politician. It therefore held that Mr Oberschlick's allegations against him
came under the general rule (Article 111 para. 3 of the Criminal Code - see
paragraph 25 above) that a person making a defamatory statement through
the media incurs criminal liability unless he proves that it is true. Since, in
the Regional Court's opinion, Mr Grabher-Meyer's proposal were
"inconclusive" evidence of his alleged National Socialist attitude and
criminal behaviour and since no further evidence had been submitted, it
found that the applicant had failed to prove his allegations and was therefore
guilty (see paragraph 20 above).
In its decision of 17 December 1984 the Vienna Court of Appeal
basically confirmed these assessments (see paragraph 23 above).
63. The Court, however, cannot subscribe to them. The information, as
published by Mr Oberschlick, began by reciting the facts under the heading
"Sachverhalt", that is reporting Mr Grabher-Meyer's statements. It is
undisputed that this part of the information was factually correct. What
followed was an analysis of these statements, on the basis of which the
authors of the information concluded that this politician had knowingly
expressed ideas that corresponded to those professed by the Nazis.
22
OBERSCHLICK v. AUSTRIA JUDGMENT
The Court can regard the latter part of the information only as a valuejudgment,
expressing the opinion of the authors as to the proposal made by
this politician, which opinion was clearly presented as derived solely from a
comparison of this proposal with texts from the National Socialist Party
Manifesto.
It follows that Mr Oberschlick had published a true statement of facts
followed by a value-judgment as to those facts. The Austrian courts held,
however, that he had to prove the truth of his allegations. As regards valuejudgments
this requirement is impossible of fulfilment and is itself an
infringement of freedom of opinion (see the above-mentioned Lingens
judgment, Series A no. 103, p. 28, para. 46).
As to the form of the publication, the Court accepts the assessment made
by the Austrian courts. It notes that they did not establish that "the
presentation of the article in the form of a criminal information" was
misleading in the sense that, as a consequence thereof, a significant number
of the readers were led to believe that a public prosecution had been
instituted against Mr Grabher-Meyer or even that he had already been
convicted. The Austrian courts said no more than that this particular form of
presentation was intended to ensure that what in their eyes was an
accusation as to his character would have "a particularly telling effect on the
average reader". In the opinion of the Court, however, in view of the
importance of the issue at stake (see paragraph 61 above), Mr Oberschlick
cannot be said to have exceeded the limits of freedom of expression by
choosing this particular form.
64. It follows from the foregoing that the interference with Mr
Oberschlick's exercise of his freedom of expression was not "necessary in a
democratic society ... for the protection of the reputation ... of others".
There has, accordingly, been a violation of Article 10 (art. 10) of the
Convention.
IV. APPLICATION OF ARTICLE 50 (art. 50)
65. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a legal authority or any
other authority of a High Contracting Party is completely or partially in conflict with
the obligations arising from the ... Convention, and if the internal law of the said Party
allows only partial reparation to be made for the consequences of this decision or
measure, the decision of the Court shall, if necessary, afford just satisfaction to the
injured party."
The applicant requested the Court to direct the Government of Austria:
(a) to rehabilitate him and formally set aside the judgment of 17 December
1984; and (b) to annul the seizure of issue no. 352/353 of Forum.
23
OBERSCHLICK v. AUSTRIA JUDGMENT
The Court, however, is not empowered to make directions of this kind
(see, mutatis mutandis, the Hauschildt judgment of 24 May 1989, Series A
no. 154, p. 23, para. 54).
Mr Oberschlick also sought compensation for pecuniary and nonpecuniary
damage, as well as the reimbursement of costs and expenses. He
claimed that certain of these amounts should be increased by interest at the
rate of 11% per annum.
A. Pecuniary damage
66. The applicant sought firstly sums corresponding to the fine imposed
(4,000 schillings) and the costs awarded to the private prosecutor (14,123.84
schillings) by the Austrian courts. Having regard to the direct link between
these items and the violation of Article 10 (art. 10) found by the Court, he
is, as the Government agreed, entitled to recover the full amount of
18,123.84 schillings.
67. The applicant also claimed one symbolic Austrian schilling for the
seizure of issue no. 352/353 of Forum (see paragraphs 13 and 20 above) and
38,280 schillings for the cost of publishing in that magazine, in pursuance
of section 37 of the Media Act (see paragraphs 18 and 26 above),
information concerning the defamation proceedings.
The Court notes that the damage referred to was in fact sustained by the
owners of Forum and that Mr Oberschlick did not furnish any explanation
as to why he should be entitled to compensation under these heads. No
award can therefore be made to him for them.
B. Non-pecuniary damage
68. The applicant sought 70,000 schillings for non-pecuniary damage, on
account of the perplexity, anxiety and uncertainty occasioned by the
prosecution for defamation.
The Government contested both the existence of any such damage and
the amount claimed.
69. The Court does not exclude that the applicant may have sustained
some prejudice of the kind alleged as a result of the breaches of Articles 6
para. 1 and 10 (art. 6-1, art. 10). It considers, however, that in the
circumstances of the case the findings of violation in this judgment
constitute of themselves sufficient just satisfaction.
C. Costs and expenses
70. The applicant claimed 9,753 schillings for his costs and expenses in
Austria. These items fall to be taken into account, since they were incurred
to prevent or redress the breaches found by the Court. The amount, which
24
OBERSCHLICK v. AUSTRIA JUDGMENT
was accepted by the Government, appears reasonable to the Court and is
therefore awarded in full.
71. For his costs and expenses before the Convention institutions, Mr
Oberschlick sought reimbursement of the fees due to Mr Fiebinger, who had
prepared the initial application to the Commission (4,000 schillings), and to
Mr Tretter, who had assisted the applicant throughout the proceedings
(60,000 schillings), as well as his own and Mr Tretter's travel expenses to
Strasbourg for the purpose of attending the Court's hearing on 19 November
1990 (11,532 schillings). The Government contested only the amount of Mr
Tretter's fees which, in their view, should be reduced to 30,000 schillings.
The Court, however, finds the sums claimed to be reasonable and
therefore allows them in their entirety.
72. The applicant is thus entitled to 85,285 schillings for his costs and
expenses.
D. Interest
73. Mr Oberschlick claimed that interest of 11% per annum should be
added to certain of the above sums; he based this claim on the argument that
he had been obliged to borrow in order to meet the costs involved. Although
the Government have asked for proof of the latter allegation, no evidence
has been submitted in due time. The Court therefore dismisses this claim.
FOR THESE REASONS, THE COURT
1. Rejects unanimously the Government's preliminary objection;
2. Holds unanimously that, in the second set of proceedings, there has been
a violation of Article 6 para. 1 (art. 6-1) of the Convention as regards the
impartiality of the Vienna Court of Appeal, but not as regards the
fairness of the trial before the Vienna Regional Court;
3. Holds by sixteen votes to three that there has been a violation of Article
10 (art. 10) of the Convention;
4. Holds unanimously that Austria is to pay to the applicant 18,123.84
Austrian schillings (eighteen thousand one hundred and twenty-three
schillings and eighty-four groschen) for pecuniary damage, and 85,285
Austrian schillings (eighty-five thousand two hundred and eighty-five
schillings) for costs and expenses;
5. Dismisses unanimously the remainder of the claim for just satisfaction.
25
OBERSCHLICK v. AUSTRIA JUDGMENT
Done in English and in French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 23 May 1991.
Rolv RYSSDAL
President
Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and
Rule 53 para. 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) partly dissenting opinion of Mr Thór Vilhjálmsson;
(b) partly dissenting opinion of Mr Matscher, approved by Mrs
Bindschedler-Robert;
(c) concurring opinion of Mr Martens;
(d) concurring opinion of Mr Morenilla;
R.R.
M.-A.E.
26
OBERSCHLICK v. AUSTRIA JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE THOR VILHJALMSSON
PARTLY DISSENTING OPINION OF JUDGE THOR
VILHJALMSSON
To my regret I have found it unavoidable to part company with the
majority of the Court on the question of Article 10 (art. 10). I have voted for
non-violation of that Article (art. 10) and would like to explain briefly my
point of view.
The idea or ideal underlying the European Convention on Human Rights
is that the invididual should be protected vis--vis the State. The protection
afforded to freedom of expression by Article 10 (art. 10) of our Convention
clearly has this aim. The Lingens judgment shows that very harsh words
expressed in the context of political debate enjoy this protection. However,
as is stated at the beginning of paragraph 2 of this Article (art. 10-2), the
exercise of this freedom "carries with it duties and responsibilities". In this
context one often has to keep in mind Article 8 (art. 8) of the Convention,
concerning the right to respect for private life, as well as what is said in
paragraph 2 of Article 10 (art. 10-2) on the protection of the reputation or
rights of others. The two principles enshrined in Articles 8 and 10 (art. 8,
art. 10) must both be respected in every democratic society worthy of that
name. In our time and our part of the world, the application of rules
intended to protect these principles is marked by the power of the media and
the inability of the individual to protect his reputation. Legal rules have
frequently proved not to be an effective tool in this respect, but this fact - as
I consider it to be - should not influence our Court when it applies the
Convention. The Austrian legislation described in paragraphs 25-33 of the
judgment is an example of a set of rules enacted by a member State in order
to meet the obligations flowing from Article 8 (art. 8) of our Convention.
The present case should be decided by an interpretation of Article 10 (art.
10) which takes into account the principle enshrined in Article 8 (art. 8). I
am not of the opinion that the decisive question is whether or not a valuejudgment
is involved. Neither do I agree with the majority when it says that
it regards "the latter part of the information only as a value-judgment".
The applicant had, of course, a right to voice strong disagreement with
the statements of Mr Grabher-Meyer, as reported in a television programme
on 29 March 1983. This he could do without breaching Austrian law. He
chose, however, to print in full a "criminal information" - a kind of private
criminal summons - laid by himself and others, in which Mr Grabher-Meyer
was said to be suspected of contravening three provisions of Austrian penal
law. The criminal-law setting thus given to his criticism took it out of the
sphere of mere political debate and carried it into the arena of personal
attack, thereby impinging on private life. The contents of the document
printed were also, in my opinion, characterised by exaggerations. Here I
have especially in mind the strong words to the effect that the statement
corresponded to the aims of the Nazis or extolled measures applied by them.
27
OBERSCHLICK v. AUSTRIA JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE THOR VILHJALMSSON
These very same words found in the text published by the applicant also, it
seems to me, fall outside the ambit of value-judgments. The programme and
the acts of the Nazis constitute a set of facts and the statement is another
fact. Whether or not that statement reflected that programme and those acts
is a question of factual assessment and my own conclusion is that it did not.
The applicant, in my opinion, transgressed the limits of freedom of
expression and violated the rules on respect for the reputation of the person
concerned that are necessary in a democratic society.
As in other cases, I have voted on Article 50 (art. 50) on the basis of the
findings of the majority.
28
OBERSCHLICK v. AUSTRIA JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE MATSCHER, APPROVED BY JUDGE
BINDSCHEDLER-ROBERT
PARTLY DISSENTING OPINION OF JUDGE MATSCHER,
APPROVED BY JUDGE BINDSCHEDLER-ROBERT
(Translation)
1. I do not oppose the somewhat lenient decision to treat the present
application as having been introduced within the six-month time-limit for
the purposes of Article 26 (art. 26).
In my view, Rule 38 para. 3 of the Commission's Rules of Procedure
should be construed as meaning that the date which the application bears
can be decisive only where the person concerned is in a position to prove
that he did in fact despatch the application on that date.
It is inconceivable that a lawyer who submits an application on the last
day before the expiry of a time-limit should not do so by registered letter, in
order to be able to prove, should it be necessary, that the time-limit in
question has been complied with.
It is equally incomprehensible that the Commission should not have kept
in its file the envelope, which would also have made it possible to verify by
the postmark the date on which the application in question was in fact
despatched.
2. I fully endorse the reasoning in the Lingens judgment (Series A no.
103, p. 26, para. 42), reiterated in the present judgment, to the effect that the
limits of acceptable criticism are wider as regards a politician as such than
as regards a private individual.
Criticism of political conduct may be expressed in press articles, in other
publications or through other media, or again in a political debate. If the
applicant, as a journalist, had had recourse to one of these means, criticism,
even if it were harsh and bitter - but not going beyond the limits of decency
-, would have been acceptable and his conviction for such criticism would
indeed have constituted an interference with his freedom of expression
which would not be covered by paragraph 2 of Article 10 (art. 10-2).
However, in the present case, the applicant did not engage in criticism of
this type. He chose to proceed by another means, namely to lodge with the
competent authority, and the very day on which his review appeared, a
criminal information against X. - in which he accused the person in question
of very serious crimes - and to reproduce this information in that review,
thereby giving the impression, at least to the average reader, that criminal
proceedings had actually been instituted against X. This is a very important
aspect of the case to which, regrettably, the majority of the Court has not
thought right to accord the weight which in my view it merited.
In so acting, the applicant did not confine himself to permissible
criticism, but perpetrated a treacherous attack on the reputation of a
politician. Thus he did not respect the "duties and responsibilities" which
freedom of expression carries with it; his conviction cannot therefore be
29
OBERSCHLICK v. AUSTRIA JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE MATSCHER, APPROVED BY JUDGE
BINDSCHEDLER-ROBERT
regarded as a measure which was unnecessary and disproportionate for the
purposes of this provision.
The majority of the Court also found a violation in the fact that the
Austrian court had supposedly required Mr Oberschlick to prove his
accusations, proof which the majority regarded as impossible to establish
since the criminal information constituted a value-judgment. I am, on the
other hand, of the opinion that this information was merely an affirmation of
certain facts - moreover an unfounded affirmation -, facts which in
themselves were susceptible to proof. The Austrian court's judgment did not
therefore infringe freedom of expression by regarding them as such.
30
OBERSCHLICK v. AUSTRIA JUDGMENT
CONCURRING OPINION OF JUDGE MARTENS
CONCURRING OPINION OF JUDGE MARTENS
1. I have voted in favour of rejecting the Austrian Government's
preliminary objection because it was examined and rejected by the
Commission: for the reasons given in my separate opinion in the Brozicek
case (Series A no. 167, pp. 23 et seq.) I think that the Court should leave it
to the Commission to determine whether such pleas are founded or not.
2. In the present case the Court has for the first time
extended the
doctrine that I question to a preliminary objection based on an alleged
failure to observe the time-limit specified in Article 26 (art. 26). It seems to
me that the reasons given in my afore-mentioned opinion are all the more
cogent when it comes to extending that doctrine, and especially extending it
to the present type of preliminary objection, and should have led the Court
to refrain from doing so. In this connection I would make the following
three points.
Firstly, assuming jurisdiction to examine the present preliminary
objection should lead to consideration of the question whether Rule 44 para.
4 (present numbering) of the Commission's Rules of Procedure - as applied
in the Commission's case-law over more than three decades - is the best
way of supplementing the last words of Article 26 (art. 26) of the
Convention. There is, however, no reason for the Court to do this as there
are no complaints that either the Rule or its application by the Commission
are unsatisfactory. This is well illustrated by the fact that this is the first
time after all these years that a Government reiterates before the Court an
objection of this kind
!
Secondly, reviewing whether the Commission has correctly applied its
rules to the case at hand necessarily draws the Court into pure questions of
fact which, under the Convention system, should be left to the Commission.
Lastly, differences of opinion between the Commission and the Court as
to questions of that kind could lead to a result that I would find completely
unacceptable: imagine, for example, an applicant who, after fighting his
case strenuously before the Commission and then before the Court for five
or six years, is told that all his efforts have been in vain because in the
Court's opinion his application was made a day too late!

See, however, note 2.

In the "Vagrancy cases" an objection based on non-observance of the time-limit had been
raised by the Government for the first time at the oral hearings before the Court; the Court
therefore held that the Government was estopped (see the De Wilde, Ooms and Versyp
judgment of 18 June 1971, Series A no. 11, pp. 32-33, para. 58).
31
OBERSCHLICK v. AUSTRIA JUDGMENT
CONCURRING OPINION OF JUDGE MORENILLA
CONCURRING OPINION OF JUDGE MORENILLA
In this case the Court has decided to reject the Government's preliminary
objection as to the admissibility of Mr Oberschlick's application. This
conclusion does not, however, reflect a certain disparity in the reasoning.
Like Judge Martens, I have voted in favour of rejecting the objection
starting from the premise that the decision of the Commission should be
respected for the reasons expressed in my dissenting opinion in the Cardot
case (judgment of 19 March 1991, Series A no. 200) in which I subscribed
entirely to the analysis and conclusions of Judge Martens [in his separate
opinion] in the Brozicek case (Series A no. 167, p. 23 et seq.).
As I said on that occasion, the role of this Court is not to act as a Court of
Appeal from the Commission, examining the case-files to check if an
application was correctly admitted. In the allocation of roles under the
Convention, the two organs set up to ensure the observance of the
engagements undertaken by States' Parties (Article 19) (art. 19) have each
different functions with clear-cut boundaries to avoid any overlapping. The
main province of the Commission is to decide on the admissibility of
petitions, according to Article 27 (art. 27) of the Convention, while the
jurisdiction of the Court "shall extend to all cases concerning the
interpretation and application of the present Convention" as provided for in
Articles 45 and 46 (art. 45, art. 46) of the Convention.
The preliminary objection raised by the Government in this case is a
paradigm of the undesired consequences of the appeal jurisdiction assumed
by this Court in questions of admissibility following the De Wilde, Ooms
and Versyp judgment of 18 June 1971 (Series A no. 12, pp. 29-31, paras.
49-55): the Government's preliminary objection is based on a mere question
of fact - the date of the introduction of the application before the
Commission - and, as such, it should be decided by this organ on the basis
of its undisputed practice and in accordance with Articles 27 para. 3, 28 and
31 (art. 27-3, art. 28, art. 31) of the Convention, and in the light of Rule 44
para. 3 of its own Rules of Procedure which confers on the Commission a
margin of appreciation in deciding on the date of introduction of the first
communication from the applicant setting out the object of the application.
Moreover the re-examination of this question by the Court involves not
only a fresh assessment of the basis for the Commission's decision in this
matter but it also amounts to questioning the practice of the Commission
based on its own experience, as well as the compatibility with the
Convention of Rule 44 para. 3 of the Commission's Rules of Procedure.
The fact that in the present case the Court and the Commission have
shared the same views with regard to the time-limit objection does not
exclude:
(1) the applicant's uncertainty as to the outcome, since after winning his
case before the Commission he may, with good reason, fear that at the end
32
OBERSCHLICK v. AUSTRIA JUDGMENT
CONCURRING OPINION OF JUDGE MORENILLA
of a long procedure the Court may not decide on the merits of his
complaint;
(2) the possibility of two contradictory decisions that may endanger
public confidence in the Convention system's ability to protect the rights of
the individual; and
(3) a time-consuming activity of the Court with no real effect on the
protection of individual rights because either - as in this case - the Court
confirms the Commission's finding and proceeds to examine the merits of
the case or it quashes the decision and declares itself unable to take
cognisance of the applicant's complaints.
In my view, having regard to the uniqueness of the preliminary objection
in the present case, the Court has missed an opportunity to reconsider its
established case-law on the examination of admissibility objections and to
leave all matters of admissibility entirely to the Commission thereby
respecting its "final" decision on such questions.
33