ASHINGDANE v. THE UNITED KINGDOM JUGDMENT
COURT (PLENARY)
CASE OF LINGENS v. AUSTRIA
(Application no. 9815/82)
JUDGMENT
STRASBOURG
8 July 1986
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LINGENS v. AUSTRIA JUGDMENT
In the Lingens case
,
The European Court of Human Rights, taking its decision in plenary
session in pursuance of Rule 50 of the Rules of Court and composed of the
following judges:
Mr. R. RYSSDAL, President,
Mr. W. GANSHOF VAN DER MEERSCH,
Mr. J. CREMONA,
Mr. G. WIARDA,
Mr. Thór VILHJÁLMSSON,
Mrs. D. BINDSCHEDLER-ROBERT,
Mr. G. LAGERGREN,
Mr. F. GÖLCÜKLÜ,
Mr. F. MATSCHER,
Mr. J. PINHEIRO FARINHA,
Mr. L.-E. PETTITI,
Mr. B. WALSH,
Sir Vincent EVANS,
Mr. R. MACDONALD,
Mr. C. RUSSO,
Mr. R. BERNHARDT,
Mr. J. GERSING,
Mr. A. SPIELMANN,
and also of Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy
Registrar,
Having deliberated in private on 27 November 1985 and 23-24 June
1986,
Delivers the following judgment, which was adopted on the lastmentioned
date:
PROCEDURE
1. The present case was referred to the Court, within the three-month
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
Freedoms ("the Convention"), on 13 December 1984 by the European
Commission of Human Rights ("the Commission") and, subsequently, on 28
January 1985, by the Federal Government of the Republic of Austria ("the

Note by the Registrar: The case is numbered 12/1984/84/131. The second figure indicates
the year in which the case was referred to the Court and the first figure its place on the list
of cases referred in that year; the last two figures indicate, respectively, the case's order on
the list of cases and of originating applications (to the Commission) referred to the Court
since its creation.
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LINGENS v. AUSTRIA JUGDMENT
Government"). The case originated in an application (no. 9815/82) against
Austria lodged with the Commission on 19 April 1982 under Article 25 (art.
25) by Mr. Peter Michael Lingens, an Austrian national.
The Commission's request referred to Articles 44 and 48 (art. 44, art. 48)
and to the declaration whereby the Republic of Austria recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46), and the
Government's application referred to Article 48 (art. 48). They sought a
decision as to whether or not the facts of the case disclosed a breach by the
respondent State of its obligations under Article 10 (art. 10).
2. In response to the inquiry made in accordance with Rule 33 para. 3 (d)
of the Rules of Court, Mr. Lingens stated that he wished to take part in the
proceedings pending before the Court and designated the lawyer who would
represent him (Rule 30).
3. The Chamber of seven judges to be constituted included, as ex officio
members, Mr. F. Matscher, the elected judge of Austrian nationality (Article
43 of the Convention) (art. 43), and Mr. G. Wiarda, the President of the
Court (Rule 21 para. 3 (b)). On 23 January 1985, the President drew by lot,
in the presence of the Registrar, the names of the five other members,
namely Mrs. D. Bindschedler-Robert, Mr. G. Lagergren, Sir Vincent Evans,
Mr. R. Bernhardt and Mr. J. Gersing (Article 43 in fine of the Convention
and Rule 21 para. 4) (art. 43).
4. Mr. Wiarda assumed the office of President of the Chamber (Rule 21
para. 5). After consulting, through the Deputy Registrar, the Agent of the
Government, the Commission's Delegate and Mr. Lingens' lawyer, he
- decided, on 11 February 1985, that there was no call at that stage for
memorials to be filed (Rule 37 para. 1);
- directed, on 4 July, that the oral proceedings should open on 25
November 1985 (Rule 38).
On 30 January, the President had granted the applicant's lawyer leave to
use the German language during the proceedings (Rule 27 para. 3).
5. On 4 May 1985, the International Press Institute (IPI), through
Interights, sought leave to submit written observations under Rule 37 para.
2. On 6 July, the President agreed, subject to certain conditions.
After an extension of the time-limit originally granted, these observations
were received at the Court's registry on 1 October 1985.
6. On 25 September 1985, the Chamber had decided under Rule 50 to
relinquish jurisdiction forthwith in favour of the plenary Court.
In a letter received at the registry on 13 November the applicant
submitted his claims under Article 50 (art. 50) of the Convention.
7. The hearings, presided over by Mr. Ryssdal who had become
President of the Court on 30 May 1985, were held in public at the Human
Rights Building, Strasbourg, on 25 November 1985. Immediately before
they opened, the Court had held a preparatory meeting.
There appeared before the Court:
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LINGENS v. AUSTRIA JUGDMENT
- for the Government
Mr. H. TÜRK, Legal Adviser,
Ministry of Foreign Affairs, Agent,
Mr. W. OKRESEK, Federal Chancellery,
Mr. G. FELSENSTEIN, Ministry of Justice, Advisers;
- for the Commission
Mr. H.G. SCHERMERS, Delegate;
- for the applicant
Mr. W. MASSER, Rechtsanwalt, Counsel,
Mr. P.M. LINGENS, Applicant.
The Court heard addresses by Mr. Türk and Mr. Okresek for the
Government, by Mr. Schermers for the Commission and by Mr. Masser for
the applicant and Mr. Lingens himself, as well as their replies to its
questions.
On 6 December 1985 and 17 March 1986, Mr. Masser, complying with a
request by the President, filed with the registry several documents giving
further particulars of the applicant's claims for just satisfaction. The
Government replied on 18 March 1986.
AS TO THE FACTS
8. Mr. Lingens, an Austrian journalist born in 1931, resides in Vienna
and is editor of the magazine Profil.
I. THE APPLICANT'S ARTICLES AND THEIR BACKGROUND
9. On 9 October 1975, four days after the Austrian general elections, in
the course of a television interview, Mr. Simon Wiesenthal, President of the
Jewish Documentation Centre, accused Mr. Friedrich Peter, the President of
the Austrian Liberal Party (Freiheitliche Partei Österreichs) of having
served in the first SS infantry brigade during the Second World War. This
unit had on several occasions massacred civilians behind the German lines
in Russia. Mr. Peter did not deny that he was a member of the unit, but
stated that he was never involved in the atrocities it committed. Mr.
Wiesenthal then said that he had not alleged anything of the sort.
10. The following day, Mr. Bruno Kreisky, the retiring Chancellor and
President of the Austrian Socialist Party (Sozialistische Partei Österreichs),
was questioned on television about these accusations.
Immediately before the television interview, he had met Mr. Peter at the
Federal Chancellery. Their meeting was one of the normal consultations
between heads of parties with a view to forming a new government; it had
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LINGENS v. AUSTRIA JUGDMENT
aroused great public interest because before the elections on 5 October the
possibility of a Kreisky-Peter coalition government had been canvassed.
At the interview, Mr. Kreisky excluded the possibility of such a coalition
because his party had won an absolute majority. However, he vigorously
supported Mr. Peter and referred to Mr. Wiesenthal's organisation and
activities as a "political mafia" and "mafia methods". Similar remarks were
reported the next day in a Vienna daily newspaper to which he had given an
interview.
11. At this juncture, the applicant published two articles in the Vienna
magazine Profil.
12. The first was published on 14 October 1975 under the heading "The
Peter Case" ("Der Fall Peter"). It related the above events and in particular
the activities of the first SS infantry brigade; it also drew attention to Mr.
Peter's role in criminal proceedings instituted in Graz (and later abandoned)
against persons who had fought in that brigade. It drew the conclusion that
although Mr. Peter was admittedly entitled to the benefit of the presumption
of innocence, his past nevertheless rendered him unacceptable as a
politician in Austria. The applicant went on to criticise the attitude of Mr.
Kreisky whom he accused of protecting Mr. Peter and other former
members of the SS for political reasons. With regard to Mr. Kreisky's
criticisms of Mr. Wiesenthal, he wrote "had they been made by someone
else this would probably have been described as the basest opportunism"
("Bei einem anderen würde man es wahrscheinlich übelsten Opportunismus
nennen"), but added that in the circumstances the position was more
complex because Mr. Kreisky believed what he was saying.
13. The second article, published on 21 October 1975, was entitled
"Reconciliation with the Nazis, but how?" ("Versöhnung mit den Nazis aber
wie?"). It covered several pages and was divided into an introduction
and six sections: "`Still' or `Already'", "We are all innocent", "Was it
necessary to shoot defenceless people?", "Why is it still a question for
discussion?", "Helbich and Peter" and "Politically ignorant".
14. In the introduction Mr. Lingens recalled the facts and stressed the
influence of Mr. Kreisky's remarks on public opinion. He criticised him not
only for supporting Mr. Peter, but also for his accommodating attitude
towards former Nazis who had recently taken part in Austrian politics.
15. Under the heading "`Still' or `Already'" the applicant conceded that
one could not object to such attitudes on grounds of "Realpolitik".
According to him "the time has passed when for electoral reasons one had to
take account not only of Nazis but also of their victims ... the former have
outlived the latter ...". Nevertheless Austria, which had produced Hitler and
Eichmann and so many other war criminals, had not succeeded in coming to
terms with its past; it had simply ignored it. This policy risked delivering
the country into the hands of a future fascist movement.
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LINGENS v. AUSTRIA JUGDMENT
With regard to the then Chancellor, he added: "In truth Mr. Kreisky's
behaviour cannot be criticised on rational grounds but only on irrational
grounds: it is immoral, undignified" ("In Wahrheit kann man das, was
Kreisky tut, auf rationale Weise nicht widerlegen. Nur irrational: es ist
unmoralisch. Würdelos"). It was, moreover, unnecessary because Austrians
could reconcile themselves with the past without seeking the favours of the
former Nazis, minimising the problem of concentration camps or maligning
Mr. Wiesenthal by exploiting anti-Semitism.
What was surprising was not that one "still" spoke about these things
thirty years later but, on the contrary, that so many people were "already"
able to close their eyes to the existence of this mountain of corpses.
Finally, Mr. Lingens criticised the lack of tact with which Mr. Kreisky
treated the victims of the Nazis.
16. The second section commented on the attitude of Austrian society in
general with regard to Nazi crimes and former Nazis. In the author's
opinion, by sheltering behind the philosophic alternative between collective
guilt and collective innocence the Austrians had avoided facing up to a real,
discernible and assessable guilt.
After a long disquisition on various types of responsibility, he stressed
that at the time it had in fact been possible to choose between good and evil
and gave examples of persons who had refused to collaborate. He concluded
that "if Bruno Kreisky had used his personal reputation, in the way he used
it to protect Mr. Peter, to reveal this other and better Austria, he would have
given this country - thirty years afterwards - what it most needed to come to
terms with its past: a greater confidence in itself".
17. The third and fourth sections (which together amounted to a third of
the article) also dealt with the need to overcome the consciousness of
collective guilt and envisage the determination of real guilt.
Under the title "Was it necessary to shoot defenceless people?", Mr.
Lingens drew a distinction between the special units and the regular forces
in the armies of the Third Reich; he pointed out that no one was forcibly
enlisted in the former: one had to volunteer.
In the following section he stressed the difference between individuals
guilty of criminal offences and persons who, morally speaking, had to be
regarded as accomplices; he maintained that if Austria had tried its Nazis
earlier, more quickly and more thoroughly, it would have been able to view
its past more calmly without complexes and with more confidence. He then
set out the reasons why that had not been possible and defended Mr.
Wiesenthal from the charge of belonging to a "mafia". Finally, he
considered the possibility of showing clemency after so many years and
concluded: "It belongs to every society to show mercy but not to maintain
an unhealthy relationship with the law by acquitting obvious murderers and
concealing, dissembling or denying manifest guilt."
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LINGENS v. AUSTRIA JUGDMENT
18. The fifth section of Mr. Lingens' article compared the Peter case with
another affair of a more economic nature relating to Mr. Helbich, one of the
leaders of the Austrian People's Party (Österreichische Volkspartei), and
compared Mr. Kreisky's different reaction in each case. The author argued
that the circumstances of the first case made Mr. Peter unfit to be a member
of parliament, a politician and a member of the government, and added:
"This is a minimum requirement of political ethics" ("ein
Mindesterfordernis des politischen Anstandes"). The "monstrosity"
("Ungeheuerlichkeit") was not, in his opinion, the fact that Mr. Wiesenthal
had raised the matter, but that Mr. Kreisky wished to hush it up.
19. The article ended with a section criticising the political parties in
general owing to the presence of former Nazis among their leaders. The
applicant considered that Mr. Peter ought to resign, not to admit his guilt but
to prove that he possessed a quality unknown to Mr. Kreisky, namely tact.
II. PRIVATE PROSECUTIONS BROUGHT BY MR. KREISKY
20. On 29 October and 12 November 1975, the then Chancellor brought
two private prosecutions against Mr. Lingens. He considered that certain
passages in the articles summarised above were defamatory and relied on
Article 111 of the Austrian Criminal Code, which reads:
"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 ...".
A. First set of proceedings
1. Decision of the Vienna Regional Court
21. On 26 March 1979, the Vienna Regional Court found Mr. Lingens
guilty of defamation (üble Nachrede - Article 111 para. 2) for having used
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LINGENS v. AUSTRIA JUGDMENT
the expressions "the basest opportunism", "immoral" and "undignified".
However, it held that certain other expressions were not defamatory in their
context ("minimum requirement of political ethics", "monstrosity"). It fined
him 20,000 Schillings, considering as mitigating circumstances the fact that
the accused intended to voice political criticism of politicians on political
questions and that the latter were expected to show greater tolerance of
defamation than other individuals. In view of the defendant's good faith it
awarded Mr. Kreisky no damages but, on his application, ordered the
confiscation of the articles complained of and the publication of the
judgment.
22. In its decision, which contained a lengthy statement of reasons, the
Regional Court first examined the objectively defamatory character of each
of the passages complained of. It held that the expressions "basest
opportunism", "immoral" and "undignified" were defamatory and were
directly or indirectly aimed at Mr. Kreisky personally, whereas the words
"minimum requirement of political ethics" and "monstrosity" did not go
beyond the accepted limits of political criticism.
According to Mr. Lingens, the first three expressions were valuejudgments
and therefore as such not contrary to Article 111 of the Criminal
Code. However, the Regional Court considered that the unfavourable
conclusions drawn with regard to the then Chancellor's behaviour fell
within the scope of that provision. Nor could the defendant rely on his right
to freedom of expression, since the relevant provisions of the Constitution
and Article 10 (art. 10) of the Convention authorised limitations of this
right: a balance had to be struck between this right and the right to respect
for private life and reputation. In the instant case the applicant had gone
beyond the permissible limits.
23. As regards Mr. Kreisky's use of a private prosecution, the Regional
Court pointed out that he had been criticised not in his capacity as Federal
Chancellor but as a leading member of his party and a politician. Article
117 para. 2 of the Criminal Code therefore did not apply in the instant case :
it made defamation of an office-holder punishable, but solely by means of a
public prosecution commenced with the consent of the person concerned,
who could not bring a private prosecution unless the prosecuting authorities
refused to act.
24. The Regional Court then considered the question of proving truth
(preuve de la vérité) (see paragraph 20 above). It held that as the applicant
had not provided evidence to justify the expression "basest opportunism",
that was sufficient to lead to his conviction.
With regard to the words "immoral" and "undignified", the accused had
used them in relation to Mr. Kreisky's attitude consisting in minimising
Nazi atrocities, referring to Mr. Wiesenthal's activities as being of a mafiatype
and insinuating that the latter had collaborated with the Gestapo. On
this last point the Regional Court admitted evidence produced by Mr.
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LINGENS v. AUSTRIA JUGDMENT
Lingens in the form of a court decision finding a journalist guilty of
defamation for having made a similar allegation.
In so far as Mr. Kreisky had spoken of "mafia methods" and "mafia", the
Regional Court pointed out that these expressions normally referred to an
organised form of criminal behaviour but were sometimes used in a
different sense. Even if one did not accept the argument put forward by the
private prosecutor, his conception of the "mafia" was a possible one and
deserved to be examined. It was not for the prosecutor to prove the truth of
his allegations but for Mr. Lingens to prove the truth of his. Mr. Wiesenthal
himself had conceded that in order to attain his various aims he relied on an
organisation with numerous ramifications. Moreover, the then Chancellor's
statements (see paragraph 10 above) must be seen in the context of a
political struggle between political opponents, each of them using such
weapons as were at his disposal. Seen from this angle they did not reflect an
absence of morality or dignity but constituted a possible defence and were
in no way unusual in the bitter tussles of politics.
In truth, Mr. Kreisky's attitude towards Nazi victims and Nazi
collaborators was far from clear and unambiguous; it appeared in a form
which allowed different conclusions. It was therefore logically impossible
for the defendant to establish that the only possible interpretation of this
attitude was the one he put on it.
2. Appeal to the Vienna Court of Appeal
25. Mr. Kreisky and Mr. Lingens both appealed against the judgment to
the Vienna Court of Appeal. On 30 November 1979, the Court of Appeal set
the judgment aside without examining the merits, on the ground that the
Regional Court had failed to go sufficiently into the question whether the
then Chancellor was entitled to bring a private prosecution in spite of the
provisions of Article 117 of the Criminal Code (see paragraph 23 above).
B. Second set of proceedings
1. Decision of the Vienna Regional Court
26. The Vienna Regional Court, to which the Court of Appeal had
returned the case, gave judgment on 1 April 1981.
After examining the circumstances surrounding the statements by the
then Chancellor, it came to the conclusion that he had been criticised not in
his official capacity but as head of a party and as a private individual who
felt himself under an obligation to protect a third person. It followed
therefore that he was entitled to bring a private prosecution.
As regards the legal definition of the acts imputed to Mr. Lingens, the
Regional Court confirmed its judgment of 26 March 1979.
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LINGENS v. AUSTRIA JUGDMENT
With regard to the defence of justification, it again noted that the accused
had not produced any evidence to prove the truth of the expression "the
basest opportunism". As regards the expressions "immoral" and
"undignified", the evidence he had produced related solely to the allegations
of collaboration with the Nazis made against Mr. Wiesenthal. These,
however, were not relevant because Mr. Kreisky had made them after the
publication of the articles in question.
In so far as these expressions were directed at other behaviour and
attitudes of the Chancellor, the Regional Court maintained its previous
findings unchanged. It considered that Mr. Lingens' criticisms went far
beyond the question of Mr. Kreisky's attacks on Mr. Wiesenthal. The fact
that the former had been able to prosecute the applicant but could not
himself be prosecuted for defamation by Mr. Wiesenthal was due to the
existing legislation on parliamentary immunity. The obligation to prove the
truth of his statements was also based on the law and it was not for the
courts but for the legislature to make this proof less difficult. Nor was the
Regional Court responsible for the lack of tolerance and the litigious
tendencies of certain politicians.
It therefore passed the same sentence as in the original judgment (see
paragraph 21 above).
2. Appeal to the Vienna Court of Appeal
27. Both sides again appealed to the Vienna Court of Appeal, which gave
judgment on 29 October 1981; it reduced the fine imposed on the applicant
to 15,000 Schillings but confirmed the Regional Court's judgment in all
other respects.
28. Mr. Kreisky disputed the statement that different criteria applied to
private life and to political life. He argued that politicians and private
individuals should receive the same treatment as regards the protection of
their reputation.
The Court of Appeal, however, pointed out that Article 111 of the
Criminal Code applied solely to the esteem enjoyed by a person in his social
setting. In the case of politicians, this was public opinion. Yet experience
showed that frequent use of insults in political discussion (often under cover
of parliamentary immunity) had given the impression that statements in this
field could not be judged by the same criteria as those relating to private
life. Politicians should therefore show greater tolerance. As a general rule,
criticisms uttered in political controversy did not affect a person's
reputation unless they touched on his private life. That did not apply in the
instant case to the expressions "minimum requirement of political ethics"
and "monstrosity". Mr. Kreisky's appeal was therefore dismissed.
29. The Court of Appeal then turned to Mr. Lingens' grounds of appeal
and first of all examined the evidence taken at first instance, in order to
decide in what capacity Mr. Kreisky had been subjected to his criticism. It
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LINGENS v. AUSTRIA JUGDMENT
too found that he was criticised in his capacity both as a party leader and as
a private individual.
The expression "the basest opportunism" meant that the person referred
to was acting for a specific purpose with complete disregard of moral
considerations and this in itself constituted an attack on Mr. Kreisky's
reputation. The use of the words "had they been made by someone else"
(see paragraph 12 above) could not be understood as a withdrawal of the
criticism. As the defendant had not succeeded in proving the truth of it, the
court of first instance had been right to find him guilty of an offence.
According to the applicant, the expressions "immoral" and "undignified"
were his personal judgment of conduct which was not disputed, a judgment
made in exercise of his freedom of expression, guaranteed by Article 10
(art. 10) of the Convention. The Court of Appeal did not accept this
argument; it pointed out that Austrian law did not confer upon the
individual an unlimited right to formulate value-judgments and that Article
10 (art. 10) authorised limitations laid down by law for the protection, inter
alia, of the reputation of others. Furthermore, the task of the press was to
impart information, the interpretation of which had to be left primarily to
the reader. If a journalist himself expressed an opinion, it should remain
within the limits set by the criminal law to ensure the protection of
reputations. This, however, was not the position in the instant case. The
burden was on Mr. Lingens to establish the truth of his statements; he could
not separate his unfavourable value-judgment from the facts on which it was
based. Since Mr. Kreisky was personally convinced that Mr. Wiesenthal
used "mafia methods", he could not be accused of having acted immorally
or in an undignified manner.
30. The appeal judgment was published in Profil on 22 February 1982, as
required by the accessory penalty imposed on Mr. Lingens and his
publisher.
PROCEEDINGS BEFORE THE COMMISSION
31. In his application of 19 April 1982 to the Commission (no. 9815/82),
Mr. Lingens complained of his conviction for defamation through the press
(Article 111 para. 2 of the Criminal Code).
32. The Commission declared the application admissible on 5 October
1983. In its report of 11 October 1984 (Article 31) (art. 31), it expressed the
unanimous opinion that there had been a breach of Article 10 (art. 10). The
full text of the Commission's opinion is reproduced as an annex to the
present judgment.
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LINGENS v. AUSTRIA JUGDMENT
FINAL SUBMISSIONS MADE TO THE COURT
33. At the hearing on 25 November 1985, the Government requested the
Court "to hold that the provisions of Article 10 (art. 10) of the European
Convention on Human Rights were not violated in the instant case", and the
applicant asked for a decision in his favour.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
34. Under 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. ...
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. Lingens claimed that the impugned court decisions infringed his
freedom of expression to a degree incompatible with the fundamental
principles of a democratic society.
This was also the conclusion reached by the Commission. In the
Government's submission, on the other hand, the disputed penalty was
necessary in order to protect Mr. Kreisky's reputation.
35. It was not disputed that there was "interference by public authority"
with the exercise of the applicant's freedom of expression. This resulted
from the applicant's conviction for defamation by the Vienna Regional
Court on 1 April 1981, which conviction was upheld by the Vienna Court of
Appeal on 29 October 1981 (see paragraphs 26 and 27 above).
Such interference contravenes the Convention if it does not satisfy the
requirements of paragraph 2 of Article 10 (art. 10-2). It therefore falls to be
determined whether the interference was "prescribed by law", had an aim or
aims that is or are legitimate under Article 10 para. 2 (art. 10-2) and was
"necessary in a democratic society" for the aforesaid aim or aims (see, as the
most recent authority, the Barthold judgment of 25 March 1985, Series A
no. 90, p. 21, para. 43).
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LINGENS v. AUSTRIA JUGDMENT
36. As regards the first two points, the Court agrees with the Commission
and the Government that the conviction in question was indisputably based
on Article 111 of the Austrian Criminal Code (see paragraph 21 above); it
was moreover designed to protect "the reputation or rights of others" and
there is no reason to suppose that it had any other purpose (see Article 18 of
the Convention) (art. 18). The conviction was accordingly "prescribed by
law" and had a legitimate aim under Article 10 para. 2 (art. 10-2) of the
Convention.
37. In their respective submissions the Commission, the Government and
the applicant concentrated on the question whether the interference was
"necessary in a democratic society" for achieving the above-mentioned aim.
The applicant invoked his role as a political journalist in a pluralist
society; as such he considered that he had a duty to express his views on
Mr. Kreisky's condemnations of Mr. Wiesenthal (see paragraph 10 above).
He also considered - as did the Commission - that a politician who was
himself accustomed to attacking his opponents had to expect fiercer
criticism than other people.
The Government submitted that freedom of expression could not prevent
national courts from exercising their discretion and taking decisions
necessary in their judgment to ensure that political debate did not
degenerate into personal insult. It was claimed that some of the expressions
used by Mr. Lingens (see paragraphs 12 and 15 above) overstepped the
limits. Furthermore, the applicant had been able to make his views known to
the public without any prior censorship; the penalty subsequently imposed
on him was therefore not disproportionate to the legitimate aim pursued.
Moreover, the Government asserted that in the instant case there was a
conflict between two rights secured in the Convention - freedom of
expression (Article 10) (art. 10) and the right to respect for private life
(Article 8) (art. 8). The fairly broad interpretation the Commission had
adopted of the first of these rights did not, it was said, make sufficient
allowance for the need to safeguard the second right.
38. On this latter point the Court notes that the words held against Mr.
Lingens related to certain public condemnations of Mr. Wiesenthal by Mr.
Kreisky (see paragraph 10 above) and to the latter's attitude as a politician
towards National Socialism and former Nazis (see paragraph 14 above).
There is accordingly no need in this instance to read Article 10 (art. 10) in
the light of Article 8 (art. 8).
39. The adjective "necessary", within the meaning of Article 10 para. 2
(art. 10-2), implies the existence of a "pressing social need" (see the abovementioned
Barthold judgment, Series A no. 90, pp. 24-25, para. 55). The
Contracting States have a certain margin of appreciation in assessing
whether such a need exists (ibid.), but it goes hand in hand with a European
supervision, embracing both the legislation and the decisions applying it,
even those given by an independent court (see the Sunday Times judgment
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LINGENS v. AUSTRIA JUGDMENT
of 26 April 1979, Series A no. 30, p. 36, para. 59). The Court is therefore
empowered to give the final ruling on whether a "restriction" or "penalty" is
reconcilable with freedom of expression as protected by Article 10 (art. 10)
(ibid.).
40. In exercising its supervisory jurisdiction, the Court cannot confine
itself to considering the impugned court decisions in isolation; it must look
at them in the light of the case as a whole, including the articles held against
the applicant and the context in which they were written (see, mutatis
mutandis, the Handyside judgment of 7 December 1976, Series A no. 24, p.
23, para. 50). The Court must determine whether the interference at issue
was "proportionate to the legitimate aim pursued" and whether the reasons
adduced by the Austrian courts to justify it are "relevant and sufficient" (see
the above-mentioned Barthold judgment, Series A no. 90, p. 25, para. 55).
41. In this connection, the Court has to recall 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. 10-2), it is applicable not only to "information" or "ideas"
that are favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb. Such are the
demands of that pluralism, tolerance and broadmindedness without which
there is no "democratic society" (see the above-mentioned Handyside
judgment, Series A no. 24, p. 23, para. 49).
These principles are of particular importance as far as the press is
concerned. Whilst the press must not overstep the bounds set, inter alia, for
the "protection of the reputation of others", it is nevertheless incumbent on
it to impart information and ideas on political issues just as on those in other
areas of public interest. Not only does the press have the task of imparting
such information and ideas: the public also has a right to receive them (see,
mutatis mutandis, the above-mentioned Sunday Times judgment, Series A
no. 30, p. 40, para. 65). In this connection, the Court cannot accept the
opinion, expressed in the judgment of the Vienna Court of Appeal, to the
effect that the task of the press was to impart information, the interpretation
of which had to be left primarily to the reader (see paragraph 29 above).
42. Freedom of the press furthermore affords the public one of the best
means of discovering and forming an opinion of the ideas and attitudes of
political leaders. More generally, freedom of political debate is at the very
core of the concept of a democratic society which prevails throughout the
Convention.
The limits of acceptable criticism are accordingly 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
14
LINGENS v. AUSTRIA JUGDMENT
para. 2 (art. 10-2) enables the reputation of others - that is to say, of all
individuals - 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.
43. The applicant was convicted because he had used certain expressions
("basest opportunism", "immoral" and "undignified") apropos of Mr.
Kreisky, who was Federal Chancellor at the time, in two articles published
in the Viennese magazine Profil on 14 and 21 October 1975 (see paragraphs
12-19 above). The articles dealt with political issues of public interest in
Austria which had given rise to many heated discussions concerning the
attitude of Austrians in general - and the Chancellor in particular - to
National Socialism and to the participation of former Nazis in the
governance of the country. The content and tone of the articles were on the
whole fairly balanced but the use of the aforementioned expressions in
particular appeared likely to harm Mr. Kreisky's reputation.
However, since the case concerned Mr. Kreisky in his capacity as a
politician, regard must be had to the background against which these articles
were written. They had appeared shortly after the general election of
October 1975. Many Austrians had thought beforehand that Mr. Kreisky's
party would lose its absolute majority and, in order to be able to govern,
would have to form a coalition with Mr. Peter's party. When, after the
elections, Mr. Wiesenthal made a number of revelations about Mr. Peter's
Nazi past, the Chancellor defended Mr. Peter and attacked his detractor,
whose activities he described as "mafia methods"; hence Mr. Lingens' sharp
reaction (see paragraphs 9 and 10 above).
The impugned expressions are therefore to be seen against the
background of a post-election political controversy; as the Vienna Regional
Court noted in its judgment of 26 March 1979 (see paragraph 24 above), in
this struggle each used the weapons at his disposal; and these were in no
way unusual in the hard-fought tussles of politics.
In assessing, from the point of view of the Convention, the penalty
imposed on the applicant and the reasons for which the domestic courts
imposed it, these circumstances must not be overlooked.
44. On final appeal the Vienna Court of Appeal sentenced Mr. Lingens to
a fine; it also ordered confiscation of the relevant issues of Profil and
publication of the judgment (see paragraphs 21, 26, 27 and 30 above).
As the Government pointed out, the disputed articles had at the time
already been widely disseminated, so that although the penalty imposed on
the author did not strictly speaking prevent him from expressing himself, it
nonetheless amounted to a kind of censure, which would be likely to
discourage him from making criticisms of that kind again in future; the
Delegate of the Commission rightly pointed this out. In the context of
political debate such a sentence would be likely to deter journalists from
15
LINGENS v. AUSTRIA JUGDMENT
contributing to public discussion of issues affecting the life of the
community. By the same token, a sanction such as this is liable to hamper
the press in performing its task as purveyor of information and public
watchdog (see, mutatis mutandis, the above-mentioned Barthold judgment,
Series A no. 90, p. 26, para. 58).
45. The Austrian courts applied themselves first to determining whether
the passages held against Mr. Lingens were objectively defamatory; they
ruled that some of the expressions used were indeed defamatory - "the
basest opportunism", "immoral" and "undignified" (see paragraph 21
above).
The defendant had submitted that the observations in question were
value-judgments made by him in the exercise of his freedom of expression
(see paragraphs 22 and 29 above). The Court, like the Commission, shares
this view. The applicant's criticisms were in fact directed against the
attitude adopted by Mr. Kreisky, who was Federal Chancellor at the time.
What was at issue was not his right to disseminate information but his
freedom of opinion and his right to impart ideas; the restrictions authorised
in paragraph 2 of Article 10 (art. 10-2) nevertheless remained applicable.
46. The relevant courts then sought to determine whether the defendant
had established the truth of his statements; this was in pursuance of Article
111 para. 3 of the Criminal Code (see paragraph 20 above). They held in
substance that there were different ways of assessing Mr. Kreisky's
behaviour and that it could not logically be proved that one interpretation
was right to the exclusion of all others; they consequently found the
applicant guilty of defamation (see paragraphs 24, 26 and 29 above).
In the Court's view, a careful distinction needs to be made between facts
and value-judgments. The existence of facts can be demonstrated, whereas
the truth of value-judgments is not susceptible of proof. The Court notes in
this connection that the facts on which Mr. Lingens founded his valuejudgment
were undisputed, as was also his good faith (see paragraph 21
above).
Under paragraph 3 of Article 111 of the Criminal Code, read in
conjunction with paragraph 2, journalists in a case such as this cannot
escape conviction for the matters specified in paragraph 1 unless they can
prove the truth of their statements (see paragraph 20 above).
As regards value-judgments this requirement is impossible of fulfilment
and it infringes freedom of opinion itself, which is a fundamental part of the
right secured by Article 10 (art. 10) of the Convention.
The Vienna Regional Court held that the burden of proof was a
consequence of the law and that it was not for the courts but for the
legislature to make it less onerous (judgment of 1 April 1981; see paragraph
26 above). In this context the Court points out that it does not have to
specify which national authority is responsible for any breach of the
Convention; the sole issue is the State's international responsibility (see,
16
LINGENS v. AUSTRIA JUGDMENT
inter alia, the Zimmermann and Steiner judgment of 13 July 1983, Series A
no. 66, p. 13, para. 32).
47. From the various foregoing considerations it appears that the
interference with Mr. Lingens' exercise of the freedom of expression was
not "necessary in a democratic society ... for the protection of the
reputation ... of others"; it was disproportionate to the legitimate aim
pursued. There was accordingly a breach of Article 10 (art. 10) of the
Convention.
II. THE APPLICATION OF ARTICLE 50 (art. 50)
48. 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."
49. In a letter received at the registry on 18 November 1985 the applicant
sought just satisfaction in pecuniary form. At the hearings on 25 November
the Government, while disputing that there had been a breach, agreed to
certain items of the claim but sought further particulars in respect of others.
Mr. Lingens provided these on 6 December 1985 and 17 March 1986, and
the Government commented on them on 18 March. The Commission
submitted its comments on 22 April 1986.
The question is accordingly ready for decision (Rule 53 para. 1 of the
Rules of Court).
50. The applicant claimed firstly repayment of the 15,000 Schillings fine
and of the 30,600 Schillings costs awarded against him by the Vienna Court
of Appeal (see paragraph 27 above). He is indeed entitled to recover these
sums by reason of their direct link with the decision the Court has held to be
contrary to the freedom of expression (see, mutatis mutandis, the Minelli
judgment of 25 March 1983, Series A no. 62, p. 21, para. 47). The
Government moreover did not dispute this.
51. With regard to the expenditure incurred as a result of the accessory
penalty of having to publish the judgment in the magazine Profil (see
paragraph 30 above, taken together with paragraph 21), the applicant
claimed 40,860 Schillings on the basis of the scale in force at the time.
The Government contended that this amount included, firstly, a loss of
profit and, secondly, actual financial outlay; they claimed that only the latter
should be taken into account for the purposes of Article 50 (art. 50).
The Court cannot speculate on the amount of profit Mr. Lingens might
have derived from any paying advertisements that might hypothetically
have been put in the magazine in place of the judgment of 29 October 1981.
17
LINGENS v. AUSTRIA JUGDMENT
But it does not rule out that the applicant may thereby have suffered some
loss of opportunity which must be taken into account. There are also the
costs indisputably incurred for reproducing the judgment in question.
The foregoing items cannot be calculated exactly. Assessing them in
their entirety on an equitable basis, the Court awards Mr. Lingens
compensation of 25,000 Schillings under this head.
52. The applicant further claimed 54,938.60 Schillings for costs and
expenses incurred for his defence in the Regional Court and the Vienna
Court of Appeal. This claim deserves consideration, as the proceedings
concerned were designed to prevent or redress the breach found by the
Court (see the above-mentioned Minelli judgment, Series A no. 62, p. 20,
para. 45). Furthermore, the amount sought appears reasonable and should
accordingly be awarded to the applicant.
53. As to the costs and expenses incurred in the proceedings before the
Convention institutions, Mr. Lingens - who did not have legal aid in this
connection - initially put them at 197,033.20 Schillings. The Government
challenged both the amount, which they considered excessive, and the
method of calculation. Subsequently counsel for the applicant submitted a
fee note for 189,305.60 Schillings.
The Court reiterates that in this context it is not bound by the domestic
scales or criteria relied on by the Government and the applicant in support
of their respective submissions, but enjoys a discretion which it exercises in
the light of what it considers equitable (see, inter alia, the Eckle judgment of
21 June 1983, Series A no. 65, p. 15, para. 35). In the instant case it was not
disputed that the costs were both actually and necessarily incurred; the only
matter in issue is whether they were reasonable as to quantum. The Court
shares the Government's reservations in this respect, and considers it
appropriate to award the applicant 130,000 Schillings in respect of the costs
in question.
54. Lastly, Mr. Lingens claimed 29,000 Schillings in respect of his travel
and subsistence expenses for the hearings before the Commission and
subsequently the Court.
Applicants may appear in person before the Commission (Rule 26 para. 3
of the Rules of Procedure), and this was what happened in the present case.
Although they do not have the standing of parties before the Court, they are
nonetheless entitled under Rules 30 and 33 para. 3 (d) of the Rules of Court
to take part in the proceedings on certain conditions. Furthermore, their
presence in the court-room is an undoubted asset: it can enable the Court to
ascertain on the spot their view on issues affecting them (Rules 39 and 44 of
the Rules of Court - see the König judgment of 10 March 1980, Series A no.
36, p. 19, para. 26). Nor does the sum claimed by Mr. Lingens under this
head appear unreasonable.
55. The amounts awarded to Mr. Lingens under Article 50 (art. 50) of the
Convention total 284,538.60 Schillings.
18
LINGENS v. AUSTRIA JUGDMENT
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a breach of Article 10 (art. 10) of the
Convention;
2. Holds that the Republic of Austria is to pay to the applicant 284,538.60
Schillings (two hundred and eighty-four thousand five hundred and
thirty-eight Schillings sixty Groschen) as "just satisfaction".
Done in English and in French, and delivered at a public hearing at the
Human Rights Building, Strasbourg, on 8 July 1986.
Rolv RYSSDAL
President
For the Registrar
Jonathan L. SHARPE
Head of Division in the registry of the Court
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and
Rule 52 para. 2 of the Rules of Court, the separate opinion of Mr. Thór
Vilhjálmsson is annexed to the present judgment.
R.R.
J.L.S.
19
LINGENS v. AUSTRIA JUGDMENT
CONCURRING OPINION OF JUDGE THÓR
VILHJÁLMSSON
In this case, I have with certain hesitation joined my colleagues in
finding a violation of Article 10 (art. 10) of the Convention. I have the
following comment to make on the reasons set out in the judgment.
In the first sub-paragraph of paragraph 29, it is stated that the Vienna
Court of Appeal found that Mr. Lingens had criticised Mr. Kreisky in his
capacity both as a party leader and as a private individual (my underlining).
Keeping this in mind, I find it difficult to agree with the last part of
paragraph 38 of the judgment. I agree, though, with the other judges that it
is Article 10 (art. 10) of the Convention that has to be interpreted and
applied in the present case. This is to be done by taking the right to respect
for private life, stated in Article 8 (art. 8), as one of the factors relevant to
the question whether or not in this case the freedom of expression was
subjected to restrictions and penalties that were necessary in a democratic
society for the protection of the reputation of others. The text of paragraphs
that follow paragraph 38 shows that this is in fact taken into account when
the Court weighs the relevant considerations. As already stated, I agree with
the conclusion stated in paragraph 47 and the operative provisions of the
judgment.
20