European Court of Human Rights

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).

- 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).

After an extension of the time-limit originally granted, these observations were received at the Court’s registry on 1 October 1985.

In a letter received at the registry on 13 November the applicant submitted his claims under Article 50 (art. 50) of the Convention.

There appeared before the Court:

- 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

I. THE APPLICANT’S ARTICLES AND THEIR BACKGROUND

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 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.

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.

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".

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."

II. PRIVATE PROSECUTIONS BROUGHT BY MR. KREISKY

"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

According to Mr. Lingens, the first three expressions were value-judgments 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.

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 mafia-type and insinuating that the latter had collaborated with the Gestapo. On this last point the Regional Court admitted evidence produced by Mr. 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

B. Second set of proceedings

1. Decision of the Vienna Regional Court

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.

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

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.

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.

PROCEEDINGS BEFORE THE COMMISSION

FINAL SUBMISSIONS MADE TO THE COURT

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)

"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.

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).

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.

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).

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 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.

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.

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 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).

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.

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 value-judgment 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, inter alia, the Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, p. 13, para. 32).

II. THE APPLICATION OF ARTICLE 50 (art. 50)

"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 question is accordingly ready for decision (Rule 53 para. 1 of the Rules of Court).

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. 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.

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.

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.

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.