EUROPEAN COURT OF HUMAN RIGHTS

 In the case of Prager and Oberschlick v. Austria (1),
 
 The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention") and the relevant provisions of Rules of Court A (2),
as a Chamber composed of the following judges:
 
 Mr R. Ryssdal, President,
 Mr F. Gölcüklü,
 Mr F. Matscher,
 Mr L.-E. Pettiti,
 Mr C. Russo,
 Mr S.K. Martens,
 Mr R. Pekkanen,
 Mr F. Bigi,
 Mr J. Makarczyk,
 
and also of Mr H. Petzold, Registrar,
 
 Having deliberated in private on 24 November 1994 and
22 March 1995,
 
 Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
 
1. The case is numbered 13/1994/460/541. 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.
 
2. Rules A apply to all cases referred to the Court before the
entry into force of Protocol No. 9 (P9) and thereafter only to
cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983,
as amended several times subsequently.
_______________
 
PROCEDURE
 
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 15 April 1994,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 15974/90) against the Republic of Austria
lodged with the Commission under Article 25 (art. 25) by two
Austrian nationals, Mr Michael Prager and Mr Gerhard Oberschlick,
on 21 December 1989.
 
 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 the facts of the case disclosed a breach by the
respondent State of its obligations under Articles 10 and 14
(art. 10, art. 14) of the Convention.
 
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicants stated
that they wished to take part in the proceedings and designated
the lawyer who would represent them (Rule 30). The President of
the Court gave the lawyer in question leave 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 April 1994,
in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr F. Gölcüklü,
Mr L.-E. Pettiti, Mr C. Russo, Mr S.K. Martens, Mr R. Pekkanen,
Mr F. Bigi and Mr J. Makarczyk (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43).
 
4. As President of the Chamber (Rule 21 para. 5),
Mr Ryssdal, acting through the Registrar, consulted the Agent of
the Austrian Government ("the Government"), the applicants'
lawyer and the Delegate of the Commission on the organisation of
the proceedings (Rules 37 para. 1 and 38). Pursuant to the order
made in consequence the Registrar received the Government's
memorial on 16 September 1994 and the applicants' memorial on
6 October. On 25 October the Commission produced various
documents, as requested by the Registrar on the President's
instructions. On 28 October the Secretary to the Commission
informed the Registrar that the Delegate would make his
submissions at the hearing.
 
5. On 25 August 1994 the President had authorised, under
Rule 37 para. 2, two international human rights organisations,
"Article 19" and "Interights", to submit written observations on
specific aspects of the case. Their observations reached the
registry on 10 October.
 
6. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 22 November 1994. The Court had held a preparatory meeting
beforehand.
 
 There appeared before the Court:
 
(a) for the Government
 
 Mr W. Okresek, Head of the International
 Affairs Division, Constitutional Service,
 Federal Chancellery, Agent,
 Mr S. Benner, prosecutor, Federal Ministry of
 Justice,
 Mrs E. Bertagnoli, Human Rights Division,
 International Law Department,
 Federal Ministry of Foreign Affairs, Advisers;
 
(b) for the Commission
 
 Mr H.G. Schermers, Delegate;
 
(c) for the applicants
 
 Mr G. Lansky, Rechtsanwalt, Counsel.
 
 Mr Prager was also present.
 
 The Court heard addresses by Mr Schermers, Mr Lansky,
Mr Prager and Mr Okresek.
 
AS TO THE FACTS
 
I. Circumstances of the case
 
7. Mr Prager and Mr Oberschlick are journalists and live in
Vienna. The latter is the publisher (Medieninhaber) of the
periodical Forum.
 
A. The article in Forum
 
8. On 15 March 1987 Forum no. 397/398 published an article
by Mr Prager entitled "Danger! Harsh judges!" (Achtung! Scharfe
Richter!). The article, which was thirteen pages long, contained
criticism of the judges sitting in the Austrian criminal courts.
He gave as sources for his article, in addition to his own
experience of attending a number of trials, statements of lawyers
and legal correspondents and surveys carried out by university
researchers.
 
 After a short summary of his main contention, followed by
a general introduction, he described in detail the attitude of
nine members of the Vienna Regional Criminal Court (Landesgericht
für Strafsachen), including that of Judge J.
 
 1. The summary
 
9. The summary was worded as follows:
 
 "They treat each accused at the outset as if he had
 already been convicted. They have persons who have
 travelled from abroad arrested in court on the ground
 that there is a danger that they will abscond. They ask
 people who are unconscious after fainting whether they
 accept their sentence. Protestations of innocence are
 greeted on their part with a mere shrug of the shoulders
 and attract for their authors the heaviest sentence
 because they have not confessed. - Some Austrian
 criminal court judges are capable of anything; all of
 them are capable of a lot: there is a pattern to all
 this."
 
 2. The general introduction
 
10. In the general introduction the journalist attacked in
the first place the judges who, according to him, for years
exercised absolute power "in the domain of their court",
exploiting the smallest weaknesses or peculiarities in the
accused. The susceptibility of judges was capable of turning the
courtroom into a "battlefield"; a convicted person who caused
even the slightest offence to the self-esteem of a judge risked,
through the effect of the latter's so-called unfettered
discretion to assess the evidence, an extra year of imprisonment
or losing the possibility of having his sentence suspended.
 
 Mr Prager then criticised judges who acquitted only as a
last resort, who handed down much heavier sentences than most of
their colleagues, who treated lawyers like miscreants, who
harassed and humiliated the accused to an excessive degree, who
extended remand detention beyond the maximum duration of the
sentence risked and who disregarded the jury's verdict when they
did not agree with it. He maintained that their independence
served only to inflate inordinately their self-importance and
enabled them to apply the law in all its cruelty and
irrationality, without any scruples and without anyone being able
to oppose them.
 
 Mr Prager continued by recounting his personal
experiences from meeting judges and visiting courtrooms,
referring in this connection to the "arrogant bullying"
(menschenverachtende Schikanen) of Judge J.
 
 3. The description of the judges
 
11. The article also gave a description of a number of
individual judges. That of Judge J. read as follows:
 
 "Type: rabid ... [J.].
 
 ...
 
 [J.], addressing the Vienna lawyer [K.], counsel
 for the defence, some years ago: `Keep it short. I've
 already reached my decision.'
 
 [J.]: a judge who does not allow probation
 officers to sit down in his office. In fact he refuses
 to speak to them.
 
 [J.]: a judge who once laid a complaint against a
 prostitute because he had already paid her when she and
 her pimp vanished without anything having happened. She
 probably thought that her client was too drunk to notice
 the difference. [J.] however lay in wait and took down
  the car's registration number.
 
 [J.]'s complaint resulted in the prostitute's
 conviction - and disciplinary proceedings for himself,
 which proved really effective because the smutty story,
 which at least says a lot for [J.]'s pigheadedness, got
 into the newspapers.
 
 Despite all this he almost became a public
 prosecutor. But the press revealed a story in which his
 name cropped up again, this time in connection with
 criminal proceedings and the suspicion of having given
 legal advice without due authorisation
 (Winkelschreiberei). Two men, Mr L. and his son, were
 accused of having obtained money from people wishing to
 buy flats in old buildings, by means of fraudulent
 contracts. When it became clear that the contracts had
 been drawn up by [J.], the prosecution changed tactics:
 suddenly it was no longer the contracts that were
 fraudulent, but the intention which lay behind their use.
 
 [J.] remained a judge instead of becoming a public
 prosecutor. The editors of Kurier [an Austrian daily
 newspaper] now regret this because a public prosecutor is
 less dangerous.
 
 In September Profil [an Austrian magazine] showed
 why. In his capacity as an investigating judge, [J.] had
 left a drug addict in detention on remand for over one
 year, although the remand prisoner's officially appointed
 defence counsel repeatedly told him that he was mistaken
 about the quantity of drugs involved and that the
 relevant sentence would be from four to six months'
 imprisonment.
 
 Notwithstanding this, rather than forwarding the
 final plea of nullity to the Supreme Court, as he was
 required to do by the regulations, he transmitted it to
 the Court of Appeal and to the President of the Court of
 Appeal, who took a further three months to consider
 whether the man should be released from prison and
 whether any mistakes had been made by the investigating
 judge.
 
 A photocopier would have spared the prisoner at
 least those three months. Released at the beginning of
 March by the new judge to whom the case-file had been
 forwarded by the Supreme Court judges, the case having at
 last been brought before them, the prisoner, who had
 spent thirteen months in prison, was finally sentenced to
 five months' imprisonment at the end of March.
 
 The two defence lawyers appointed by the
 authorities to act for [J.]'s victim calculate that the
 lawyers' fees alone up to that date amounted to
 85,000 schillings.
 
 All this does not seem to have left Judge [J.]
 unscathed. The tall, bearded judge has a deep, resonant
 voice. Yet throughout the trial of Marianne O., the
  `holiday-thief', a persistent tick was to be seen on the
 face of Judge [S.]'s colleague on the Bench.
 
 Then the jury's verdict was suspended and defence
 counsel [G.] found himself facing disciplinary
 proceedings."
 
B. The action for defamation
 
12. On 23 April 1987 Judge J. brought an action against
Mr Prager for defamation (üble Nachrede, Article 111 of the
Austrian Criminal Code - see paragraph 18 below). In addition
to the seizure of the relevant Forum issue and the publication
of extracts of the judgment, he sought, inter alia, damages from
the publisher and an order imposing a fine on the latter jointly
and severally with the author and requiring them to pay the legal
costs (sections 33 to 36 of the Media Act - Mediengesetz, see
paragraph 19 below).
 
13. On 11 May 1987 the applicants challenged the Vienna
Regional Criminal Court and the Vienna Court of Appeal
(Oberlandesgericht). On 5 August the Supreme Court (Oberster
Gerichtshof) dismissed the challenge concerning the Court of
Appeal. On 17 September it allowed that directed against the
Vienna Regional Criminal Court and transferred the case to the
Eisenstadt Regional Court.
 
 1. At first instance
 
14. On 11 October 1988 the Eisenstadt Regional Court found
Mr Prager guilty of having defamed Judge J. by passages in the
impugned article, which were cited as follows:
 
 (1) "They treat each accused at the outset as if he had
 already been convicted."
 
 (2) "Some Austrian criminal court judges are capable of
 anything."
 
 (3) "Nothing was comparable to ... Judge [J.]'s arrogant
 bullying."
 
 (4) "Type: rabid ... [J.]."
 
 (5) "Despite all this he almost became a public
 prosecutor. But the press revealed a story in which his
 name cropped up again, this time in connection with
 criminal proceedings and the suspicion of having given
 legal advice without due authorisation. Two men, Mr L.
 and his son, were accused of having obtained money from
 people wishing to buy flats in old buildings, by means of
 fraudulent contracts. When it became clear that the
 contracts had been drawn up by [J.], the prosecution
 changed tactics: suddenly it was no longer the contracts
 that were fraudulent, but the intention which lay behind
 their use.
 
 [J.] remained a judge instead of becoming a public
  prosecutor. The editors of Kurier now regret this
 because a public prosecutor is less dangerous."
 
 Applying Article 111 of the Criminal Code, the Regional
Court sentenced Mr Prager to 120 day fines at the rate of
30 schillings (ATS) per day and to sixty days' imprisonment in
the event of non-payment. Mr Oberschlick was ordered to pay
Judge J. damages of ATS 30,000 and was declared jointly and
severally liable with the first applicant in respect of the fine
and the legal costs (sections 6 (1) and 35 of the Media Act).
Finally, the court ordered the confiscation of the remaining
stocks of the relevant issue of Forum and the publication of
extracts from its judgment.
 
15. In the grounds of its judgment the Regional Court noted
in the first place that the objective elements of the offence of
defamation were made out. Of the contested passages, nos. 2
and 4 openly attributed to the plaintiff a despicable character
or attitude (eine verächtliche Eigenschaft oder Gesinnung), while
nos. 1, 3 and 5 accused him of conduct that was dishonourable and
dishonest and that could objectively expose him to contempt or
denigrate him in the public eye (ein unehrenhaftes und gegen die
guten Sitten verstoßendes Verhalten, das objektiv geeignet ist,
ihn in der öffentlichen Meinung verächtlich zu machen oder
herabzusetzen). In short, confronted with such wholesale
criticism, an impartial reader had little choice but to suspect
that the plaintiff had behaved basely (ehrloses Verhalten) and
that he was of despicable character (verächtliche
Charaktereigenschaften), and the author had, moreover, been
perfectly well aware of this.
 
 The Regional Court then examined Mr Prager's applications
for the production of documents and testimony intended to
establish the truth of his statements and the journalistic care
that he had exercised in writing the article. The court took the
view that only passages nos. 1, 3 and 5 were susceptible to this
type of proof, as the other statements were value-judgments.
After considering the matter, it decided that none of the
evidence offered could sufficiently substantiate the allegations
in issue.
 
 Thus statement no. 1, according to which Judge J. treated
every accused at the outset as if he had already been convicted,
was not proved merely by the fact that the judge in question had,
in a given case, asked defence counsel to be brief, as he had
already made up his mind. Similarly, the three decisions of
Judge J. reported by Mr Prager in support of statement no. 3 were
not sufficient to bear out the allegation that the judge had
adopted bullying tactics. None of these decisions disclosed the
slightest intention to cause unnecessary suffering. Lastly, the
accusations made in passage no. 5 had been definitively refuted
by a disciplinary decision of the Vienna Court of Appeal of
6 December 1982. The two files whose production the applicant
had requested could not alter the position, since the first
contained no information on the personality of Judge J. and the
second, relating to the judge's candidature for the office of
public prosecutor, had to remain confidential.
 
 In the court's view, Mr Prager had also failed to prove
that he had written the article in issue with the care required
of journalists by section 29 (1) of the Media Act (see
paragraph 19 below). Not content with having denied Judge J. an
opportunity to answer the accusations levelled against him, his
research had been conducted in a very superficial manner;
moreover, he had himself admitted that he had not attended any
trials presided over by Judge J., that he had reproduced the
content of old newspaper articles without checking their accuracy
and had represented as true allegations based on hearsay.
 
 2. On appeal
 
16. On 26 June 1989 the Vienna Court of Appeal upheld this
judgment, but reduced the damages to ATS 20,000 (see
paragraph 14 above). It held in particular that the Regional
Court had in no way infringed the rights of the defence by
dismissing as immaterial the evidence that Mr Prager had sought
to adduce. This situation had arisen because of the way in which
he had formulated his criticism. It had been so comprehensive
and general that it had been impossible to specify evidence
capable of establishing its accuracy. The case could, moreover,
be distinguished from the case of Lingens v. Austria (judgment
of the European Court of Human Rights of 8 July 1986, Series A
no. 103) in that it concerned the affirmation of various facts
rather than the expression of value-judgments. As regards the
care that journalists are required to exercise in pursuing their
profession, it must obey the rule "audiatur et altera pars".
 
17. The remaining copies of the issue in question were never
in fact seized (see paragraph 14 above).
 
II. Relevant domestic law
 
 1. The Criminal Code
 
18. Article 111 of the Criminal Code provides:
 
 "1. Anyone who in such a way that it may be perceived by
 a third party 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."
 
 Article 112 provides:
 
 "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, shall not
be guilty of an offence, unless that allegation is untrue and he
could have realised this if he had exercised due care ...".
 
  2. The Media Act
 
19. Section 6 of the Media Act provides for the strict
liability of the publisher in cases of defamation; the victim can
thus claim damages from him. Furthermore, the publisher may be
declared to be liable jointly 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).
 
 Section 29 (1) provides, inter alia, that publishers and
journalists will avoid conviction of an offence in respect of
information susceptible to proof as to its accuracy, not only if
they provide such proof, but also if there was a major public
interest in publishing the information and reasons which, in
exercising proper journalistic care, justified giving credence
to the statement in question.
 
PROCEEDINGS BEFORE THE COMMISSION
 
20.  In their application (no. 15974/90) lodged with the
Commission on 21 December 1989, Mr Prager and Mr Oberschlick
complained that their convictions constituted a violation of
their right to freedom of expression guaranteed under Article 10
(art. 10) of the Convention and that the order confiscating the
remaining copies of the periodical amounted to discrimination
prohibited under Article 14 taken in conjunction with Article 10
(art. 14+10). They also alleged a violation of
Articles 6 and 13 (art. 6, art. 13) of the Convention.
 
21. On 29 March 1993 the Commission declared the complaints
concerning Articles 10 and 14 (art. 10, art. 14) admissible and
the remainder of the application inadmissible. In its report of
28 February 1994 (Article 31) (art. 31), the Commission expressed
the opinion by fifteen votes to twelve that there had been no
violation of Article 10 (art. 10) and unanimously that there had
been no violation of Article 14 read in conjunction with
Article 10 (art. 14+10).
 
 The full text of the Commission's opinion and of the two
dissenting opinions contained in the report is reproduced as an
annex to this judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 313
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
 
FINAL SUBMISSIONS TO THE COURT
 
22. In their memorial the Government requested the Court:
 
(a) to declare inadmissible the complaints of the second
applicant based on a violation of Articles 14 and 10 of the
Convention taken together (art. 14+10) and Article 10
(art. 10) taken in isolation for respectively failure to exhaust
domestic remedies and lack of status of victim;
 
(b) to hold that the applicants have not been the victims of a
breach of Article 10 (art. 10).
 
23. The applicants invited the Court to find a violation of
Article 10 (art. 10).
 
AS TO THE LAW
 
I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE
 CONVENTION
 
24. The applicants complained of a violation of their right
to freedom of expression as guaranteed under Article 10 (art. 10)
of the Convention, which is worded as follows:
 
 "1. Everyone has the right to freedom of expression.
 This right shall include freedom to hold opinions and to
 receive and impart information and ideas without
 interference by public authority and regardless of
 frontiers. This Article (art. 10) 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."
 
A. The Government's preliminary objection
 
25. The Government contended, as they had done unsuccessfully
before the Commission, that Mr Oberschlick could not claim to be
a "victim" within the meaning of Article 25 para. 1 (art. 25-1)
of the Convention. Inasmuch as he had simply published an
article that he had not written himself, he could not be said to
have exercised his own freedom of expression. In addition he had
not sustained any pecuniary damage as a result of the proceedings
brought against him: he had not had to pay anything, as joint
debtor, in respect of the fine and the procedural costs and he
could claim reimbursement from Mr Prager for any other
expenditure incurred in connection with the convictions (see
paragraphs 14-15 above).
 
26. By "victim" Article 25 (art. 25) means the person
directly affected by the act or omission which is in issue, a
violation being conceivable even in the absence of any detriment;
the latter is relevant only to the application of Article 50
(art. 50) (see, inter alia, the Groppera Radio AG and Others v.
Switzerland judgment of 28 March 1990, Series A no. 173, p. 20,
para. 47).
 
27. Like the Commission and the applicants, the Court notes
that the criminal proceedings initiated by Judge J.'s complaint
were directed at both Mr Prager and Mr Oberschlick. The latter
was personally convicted for having published an article in his
periodical (see paragraph 14 above). He was therefore directly
affected by the decisions of the Eisenstadt Regional Court and
the Vienna Court of Appeal. He can, accordingly, claim to be a
victim of the alleged violation.
 
 In conclusion, the Government's preliminary objection
falls to be dismissed.
 
B. Merits of the complaint
 
28. It is not in dispute that Mr Prager's conviction for
defamation and the other measures of which the applicants
complained amounted to an "interference" with the exercise by
them of their freedom of expression.
 
 That interference infringed Article 10 (art. 10) unless
it was "prescribed by law", pursued one or more of the legitimate
aims set out in paragraph 2 of Article 10 (art. 10-2) and was
"necessary in a democratic society" to attain such aim or aims.
 
 1. "Prescribed by law"
 
29. In the applicants' submission, Article 111 of the
Austrian Criminal Code and section 29 of the Media Act could not
be regarded as "law" within the meaning of the Convention. In
so far as these provisions left it solely to the complainant to
determine which passages of a text were to be the subject of the
proceedings and prevented the accused from adducing evidence of
material facts, their application did not afford a sufficient
degree of foreseeability.
 
30. In several earlier cases, the Court found that
Article 111 of the Criminal Code had the characteristics of "law"
(see the following judgments: Lingens, cited above, p. 24,
para. 36; Oberschlick v. Austria, 23 May 1991, Series A no. 204,
p. 24, para. 54; Schwabe v. Austria, 28 August 1992, Series A
no. 242-B, pp. 31-32, para. 25). Nor is there anything to
warrant a different conclusion with regard to section 29 of the
Media Act. The uncertainties linked to the application in this
instance of these two provisions did not exceed what the
applicants could expect, if need be after having sought
appropriate advice (see, mutatis mutandis, the Vereinigung
demokratischer Soldaten Österreichs and Gubi v. Austria judgment
of 19 December 1994, Series A no. 302, pp. 18-19, para. 46).
 
 2. Whether the aim pursued was legitimate
 
31. Like the Commission, the Court sees no reason to doubt
that the decisions in issue were intended, as the Government
affirmed, to protect the reputation of others, in this case
Judge J., and to maintain the authority of the judiciary, which
are legitimate aims for the purposes of Article 10 para. 2
(art. 10-2).
 
 3. Necessity of the interference
 
32. The applicants argued that the convictions were in no way
justified. By giving a brief character-sketch of various
representative members of the Vienna Regional Criminal Court,
Mr Prager had merely raised certain serious problems confronting
the Austrian system of criminal justice. In this type of
magazine, recourse to caricature and exaggeration was common
practice as a means of attracting the readers' attention and
increasing their awareness of the issue dealt with. The author
had on no account abused this technique in this instance,
especially in view of the fact that his article had appeared in
a periodical for intellectuals capable of discernment. Moreover,
of the nine judges described, only Judge J. had laid a complaint.
 
 At the same time Mr Prager and Mr Oberschlick criticised
the proceedings conducted against them. They had been denied
adequate means to defend themselves. Judge J. had identified on
his own, and without his choice being open to challenge, the
passages of the article liable to give rise to a conviction; he
had thus isolated various general sentences and expressions from
their context - in particular passages nos. 1 and 2 (see
paragraph 14 above) - and had incorrectly presented them as being
directed against himself. The Regional Court had not only
operated a flawed distinction between the allegations (passages
nos. 1, 3 and 5) and the value-judgments (passages nos. 2 and 4),
but it had also improperly denied the applicants the right to
prove various events capable of establishing that the former were
true and that the latter were fair comment (see paragraph 15
above). As regards the facts in respect of which the court had
allowed evidence to be adduced, it had, in breach of the law,
placed the onus of showing that they were true facts on the
accused. This was an approach that would ultimately deter
journalists from taking an interest in the system of justice.
 
 Finally, it was incorrect to claim that Mr Prager had not
exercised due journalistic care in writing his article. On the
contrary, he had based his text on research conducted over a
period of six months during which he had contacted lawyers,
judges and academics. In addition, for three and a half months
he had attended hearings in the Vienna Courthouse on a daily
basis.
 
33. The Government maintained that, far from stimulating
debate on the functioning of the Austrian system of justice, the
relevant extracts of the article had only contained personal
insults directed at Judge J., despite the fact that the latter
had done nothing to provoke Mr Prager. They did not therefore
merit the enhanced protection accorded to the expression of
political opinions. The author had failed to prove the truth of
his affirmations quite simply because they were unfounded. The
opinions expressed by Mr Prager could not qualify for total
immunity just because they were not susceptible to verification
as to their accuracy. Penalties had been imposed in respect of
those statements because they had overstepped the limits of
acceptable criticism. Mr Prager could not plead good faith in
his defence as he had neglected the most elementary rules of
journalism, in particular those which require a journalist to
verify personally the truth of information obtained and to give
the persons concerned by such information the opportunity to
comment on it.
 
34. The Court reiterates that the press plays a pre-eminent
role in a State governed by the rule of law. Although it must
not overstep certain bounds set, inter alia, for the protection
of the reputation of others, it is nevertheless incumbent on it
to impart - in a way consistent with its duties and
responsibilities - information and ideas on political questions
and on other matters of public interest (see, mutatis mutandis,
the Castells v. Spain judgment of 23 April 1992, Series A
no. 236, p. 23, para. 43).
 
 This undoubtedly includes questions concerning the
functioning of the system of justice, an institution that is
essential for any democratic society. The press is one of the
means by which politicians and public opinion can verify that
judges are discharging their heavy responsibilities in a manner
that is in conformity with the aim which is the basis of the task
entrusted to them.
 
 Regard must, however, be had to the special role of the
judiciary in society. As the guarantor of justice, a fundamental
value in a law-governed State, it must enjoy public confidence
if it is to be successful in carrying out its duties. It may
therefore prove necessary to protect such confidence against
destructive attacks that are essentially unfounded, especially
in view of the fact that judges who have been criticised are
subject to a duty of discretion that precludes them from
replying.
 
35. The assessment of these factors falls in the first place
to the national authorities, which enjoy a certain margin of
appreciation in determining the existence and extent of the
necessity of an interference with the freedom of expression.
That assessment is, however, subject to a European supervision
embracing both the legislation and the decisions applying it,
even those given by an independent court (see, inter alia, the
Barfod v. Denmark judgment of 22 February 1989, Series A no. 149,
p. 12, para. 28).
 
36. In the Court's opinion the classification of the passages
in issue as value-judgments and allegations of fact comes within
the ambit of that margin of appreciation.
 
 Of the accusations levelled by those allegations, some
were extremely serious. It is therefore hardly surprising that
their author should be expected to explain himself. By
maintaining that the Viennese judges "treat each accused at the
outset as if he had already been convicted", or in attributing
to Judge J. an "arrogant" and "bullying" attitude in the
performance of his duties, the applicant had, by implication,
accused the persons concerned of having, as judges, broken the
law or, at the very least, of having breached their professional
obligations. He had thus not only damaged their reputation, but
also undermined public confidence in the integrity of the
judiciary as a whole.
 
37. The reason for Mr Prager's failure to establish that his
allegations were true or that his value-judgments were fair
comment lies not so much in the way in which the court applied
the law as in their general character; indeed it is that aspect
that seems to have been at the origin of the penalties imposed.
As the Commission pointed out, the evidence shows that the
relevant decisions were not directed against the applicant's use
as such of his freedom of expression in relation to the system
of justice or even the fact that he had criticised certain judges
whom he had identified by name, but rather the excessive breadth
of the accusations, which, in the absence of a sufficient factual
basis, appeared unnecessarily prejudicial. Thus the Eisenstadt
Regional Court stated in its judgment that "confronted with such
wholesale criticism, an impartial reader had little choice but
to suspect that the plaintiff had behaved basely and that he was
of despicable character" (see paragraph 15 above).
 
 Nor, in the Court's view, could Mr Prager invoke his good
faith or compliance with the ethics of journalism. The research
that he had undertaken does not appear adequate to substantiate
such serious allegations. In this connection it suffices to note
that, on his own admission, the applicant had not attended a
single criminal trial before Judge J. Furthermore he had not
given the judge any opportunity to comment on the accusations
levelled against him.
 
38. It is true that, subject to paragraph 2 of Article 10
(art. 10-2), freedom of expression 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 the State or any section of the
community (see, mutatis mutandis, the Castells judgment, cited
above, p. 22, para. 42, and the Vereinigung demokratischer
Soldaten Österreichs and Gubi judgment, cited above, p. 17,
para. 36). In addition, the Court is mindful of the fact that
journalistic freedom also covers possible recourse to a degree
of exaggeration, or even provocation.
 
 However, regard being had to all the circumstances
described above and to the margin of appreciation that is to be
left to the Contracting States, the impugned interference does
not appear to be disproportionate to the legitimate aim pursued.
It may therefore be held to have been "necessary in a democratic
society".
 
39. In conclusion no violation of Article 10 (art. 10) has
been established.
 
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
 IN CONJUNCTION WITH ARTICLE 10 (art. 14+10)
 
40. In their application to the Commission, Mr Prager and
Mr Oberschlick also alleged a violation of Article 14 of the
Convention taken in conjunction with Article 10 (art. 14+10) (see
paragraph 20 above). They did not, however, raise this complaint
before the Court and the Court does not consider it necessary to
examine this issue of its own motion.
 
FOR THESE REASONS, THE COURT
 
1. Dismisses unanimously the Government's preliminary
 objection;
 
2. Holds by five votes to four that there has been no
 violation of Article 10 (art. 10) of the Convention;
 
3. Holds unanimously that it is not necessary to examine the
 complaint based on Article 14 of the Convention taken in
 conjunction with Article 10 (art. 14+10).
 
 Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
26 April 1995.
 
Signed: Rolv RYSSDAL
 President
 
Signed: Herbert PETZOLD
 Registrar
 
 In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the following
separate opinions are annexed to this judgment:
 
 (a) dissenting opinion of Mr Pettiti;
 
 (b) dissenting opinion of Mr Martens, joined by
 Mr Pekkanen and Mr Makarczyk.
 
Initialled: R. R.
 
Initialled: H. P.
 
DISSENTING OPINION OF JUDGE PETTITI
 
(Translation)
 
 I wish to express my agreement with Mr Martens's
dissenting opinion.
 
 I would cite in addition the following points as reasons
for my opinion.
 
 Journalistic investigation of the functioning of the
system of justice is indispensable in ensuring verification of
the protection of the rights of individuals in a democratic
society. It represents the extension of the rule that
proceedings must be public, an essential feature of the fair
trial principle.
 
 Judges, whose status carries with it immunity and who in
most member States are shielded from civil litigation, must in
return accept exposure to unrestricted criticism where it is made
in good faith.
 
 This is the trend internationally.
 
 The situation in America is that judges holding office as
elected members of the judiciary are subject to wholly
unrestricted criticism. The American Bar Association journal
publishes 250,000 copies of a table dealing with judges' conduct
and the criticism is sometimes severe.
 
 Clearly judges must be protected from defamation, but if
they wish to institute proceedings it is preferable for them to
opt for the civil avenue rather than criminal proceedings.
States that allow judicial proceedings to be televised accept by
implication that the judge's conduct is exposed to the critical
view of the public. The best way of ensuring that objective
information is imparted to the public for its education is to
secure fuller and franker co-operation between the judicial
authorities and the press.
 
DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGES PEKKANEN
AND MAKARCZYK
 
1. There is only one point of disagreement between me and
the majority of the Court. Since its Barthold judgment (1) the
Court has consistently held that, in view of the importance of
the rights and freedoms guaranteed in paragraph 1 of Article 10
(art. 10-1), the Court's supervision must be strict, which means
inter alia that the necessity for restricting them must be
convincingly established (2). Although the wording used by the
majority may give rise to doubt (3), it must be assumed that they
did not wish to depart from this doctrine and that they are
therefore of the opinion that it has been established
convincingly that the impugned interference with the applicants'
right to freedom of expression was "necessary in a democratic
society". For the reasons set out below I have - eventually -
come to the conclusion that I am unable to share that opinion.
_______________
1. Judgment of 25 March 1985, Series A no. 90, p. 25, para. 55.
 
2. See, as the most recent authority, the Jersild v. Denmark
judgment (Grand Chamber) of 23 September 1994, Series A no. 298,
p. 26, para. 37. See for earlier judgments inter alia: the
Autronic AG v. Switzerland judgment of 22 May 1990, Series A
no. 178, pp. 26-27, para. 61, and the Informationsverein Lentia
and Others v. Austria judgment of 24 November 1993, Series A
no. 276, p. 15, para. 35.
 
3. See especially paragraph 38: "... the impugned interference
does not appear to be disproportionate to the legitimate aim
pursued. It may therefore be held to have been 'necessary in a
democratic society'."
_______________
 
2. "Eventually", for I must confess that a first reading of
Mr Prager's article (4) left me with a rather unfavourable
impression. This was, I felt, a case of a self-conscious,
perhaps even self-righteous journalist, clearly without legal
education or experience and, as clearly, with a strong bias
against criminal justice, who was nevertheless convinced that he
was entitled to publish a caustic article on the subject,
pillorying nine judges. A journalist, moreover, who consistently
preferred stylistic effects - and especially malicious effects -
to clarity and moderation.
_______________
4. It is a pity that a complete translation of the article is
not available; the reader of the Court's judgment must be content
with the Court's synopsis (paragraphs 8-11 of the judgment)
which, although not incorrect, would seem in places to be
somewhat coloured by the Court's overall assessment of the
article and in any event cannot give a good idea of the original
text of thirteen pages.
_______________
 
 Such first, rather strong, negative impressions are
dangerous for a judge. He must be conscious of them and remain
vigilant against the bias they tend to create. One wonders
whether the Austrian judges did so.
 
3. A second reading obliged me, however, to reappraise my
first impressions. It convinced me that Mr Prager, after his
curiosity had been aroused by academic literature, not only spent
a lot of time and energy in verifying on the spot the reasons for
the phenomena described by sociologists, but was honestly shocked
by what he found.
 
 The sociologists had noticed marked differences between
the way criminal justice was dispensed within the jurisdiction
of the Vienna Court of Appeal compared with the rest of Austria.
Within the Vienna jurisdiction detention on remand was much more
readily ordered and for much longer periods than elsewhere and
sentences were nearly twice as severe (5).
_______________
5. It is to be noted that before the Court the Government did
not even try to refute these findings.
_______________
 
 Mr Prager went to the Vienna Regional Criminal Court to
see whether he could find an explanation for these differences.
After six months' personal fact finding (6) he evidently became
convinced that, as far as that court was concerned, the
explanation was to be found both in the personalities of the
judges who formed that court and in their esprit de corps.
_______________
6. According to the applicant the fact finding took him six
months; for at least three and a half months he visited the court
on a daily basis.
_______________
 
 As his article shows, he was not only shocked but filled
to the brim with sincere indignation. There can be no doubt
about that. However, before venting his feelings he thought
things over, trying to explain what he had seen by reference to
some specific features of the Austrian system of criminal
justice. This is done in the introductory part of his article.
There Mr Prager draws attention to the terrible power of a
criminal judge and, against that background, to the dangers of
his holding office for years, without being subject to any real
supervision. Power corrupts, he suggests, also in criminal
courts. Outside scrutiny is, therefore, indispensable. He
certainly has a point there and it is a point that should be
taken into account (7). On the other hand, when Lord Denning
said that judges from the nature of their position cannot reply
to criticism, he too made a point that has, to a certain extent,
to be borne in mind (8).
_______________
7. See, as expressing the same idea, paragraph 34 of the Court's
judgment.
 
8. I agree that public confidence in the judiciary is important
(see paragraph 34 of the judgment), but rather doubt whether that
confidence is to be maintained by resorting to criminal
proceedings to condemn criticism which the very same judiciary
may happen to consider as "destructive".
_______________
 
4. Before I take my analysis of the impugned article
further, it is worth recalling that Judge J., one of the judges
criticised, felt that Mr Prager's article was defamatory and
started a private prosecution under Article 111 of the Austrian
Criminal Code (9). No doubt some of the passages specifically
referring to Judge J. (10) were indeed - objectively -
defamatory. Under the Convention, however, Mr Prager could only
have been convicted and sentenced for defamation if the national
courts, having properly construed and assessed the impugned
article as a whole, on balancing the demands of protection of
free speech against those of the protection of the reputation of
others, found that the latter carried greater weight in the
circumstances of this case. The Court's review is not restricted
to the second part of their findings: in cases where freedom of
expression is at stake, the Court
 
 "will look at the interference complained of in the light
 of the case as a whole and determine whether the reasons
 adduced by the national authorities to justify it are
 relevant and sufficient".
_______________
9. See paragraph 18 of the judgment.
 
10. See for a translation of the passages on which the private
prosecution was based: paragraph 14 of the judgment.
_______________
 
 In other words: what the Court had to do was to
scrutinise the persuasiveness of the reasons given for
Mr Prager's conviction and sentence.
 
 "In doing so the Court has to satisfy itself that the
 national authorities did apply standards which were in
 conformity with the principles embodied in Article 10
 (art. 10) and, moreover, that they based themselves on an
 acceptable assessment of the relevant facts" (11).
_______________
11. The Court has said so several times, but the quotation
comes, like the preceding one, from its above-mentioned Grand
Chamber judgment in the case of Jersild, pp. 23-24, para. 31.
_______________
 
 Striking a fair balance between the right to freedom of
expression and the need to protect the reputation of others is,
obviously, only feasible when what has been expressed has been
properly construed and assessed within its context.
Consequently, in order to fulfil its task as the ultimate
guarantor of the right to freedom of expression, the European
Court of Human Rights cannot confine itself to reviewing the
national courts' balancing exercise, but must necessarily also -
and firstly - examine their interpretation and assessment of the
statements in question. Only this double check enables the Court
to satisfy itself that the right to freedom of expression has not
been unduly curtailed (12).
_______________
12. The first sub-paragraph of paragraph 36 of the judgment
suggests that to decide whether an impugned statement should be
classified a statement of fact or a value-judgment is in
principle for the national courts which should be left a margin
of appreciation. In my opinion this suggestion is both
incompatible with the rule that the Court has to satisfy itself
that the national authorities did apply standards which were in
conformity with the principles embodied in Article 10 (art. 10)
and have based themselves on an acceptable assessment of the
relevant facts (see in the text above); moreover it is a
regrettable departure from such judgments as Lingens (Series A
no. 103), Oberschlick (Series A no. 204) and Schwabe (Series A
no. 242-B).
_______________
 
5. I resume my analysis of the impugned article. After the
aforementioned "theoretical" introduction (see paragraph 3 above)
it relates and comments on Mr Prager's experiences during his
three and a half months' personal fact finding at the Regional
Court (the subtitle of his article is: "Lokalaugenschein", i.e.
report of a visit of the locus in quo). The evident purpose of
this (second) "chapter" is to illustrate the assertions made in
the introduction and to convey his indignation to his readers.
 
 This (second) "chapter" again starts with something like
an introduction (general information; what he has heard
beforehand from more than a dozen barristers and court reporters;
some general impressions of the atmosphere at the court and of
his first contacts with some of the judges; some derisive
speculations on the proper degree of auto-censorship for a young
reporter writing on the judiciary).
 
 There follow nine more or less extensive "portraits" of
judges. Each portrait is preceded by a specific heading, which
not only summarises the kind of cases the judge (or judges) in
question try, but also assigns each judge a "type". These nine
portraits, including the labelling of the judges under the
heading "type", are evidently intended to epitomise Mr Prager's
criticism of the way criminal justice is dispensed by the Vienna
Regional Court and to enhance its persuasiveness by giving that
criticism names and faces.
 
6. It is, of course, a question of taste, but in my opinion
some of the portraits of the other judges are more virulent than
that of Judge J. Apparently, the Eisenstadt Regional Court judge
thought so too. She even said in her judgment that all the
judges who were criticised and who were identified by name could
have brought an action for defamation. That may be true, but the
fact is that they did not. That does not prove, of course, that
their portraits were drawn correctly. Nevertheless, it is a
factor that has to a certain extent to be taken into account when
assessing the context of the impugned passages devoted to
Judge J. For at least it has not been proved that the other
portrayals were devoid of reality, nor, consequently, that the
overall picture of the atmosphere at the court was wholly wrong.
 
7. Not only did the other judges not go to court, but before
us the Government did not even argue, let alone prove, that
Mr Prager's general proposition - namely that in Vienna, criminal
justice at first instance is not only very severe, but unduly
harsh - had no factual basis.
 
 Consequently, Mr Prager's portrayal of Judge J. must be
assessed against the background of Judge J. being a member of a
criminal court which by its decisions and by its behaviour
towards accused and their lawyers - in sum by its esprit de corps
- at least justified public scrutiny by the press. Mr Prager's
article must be regarded as concerning matters of considerable
public interest. It was therefore fittingly published in a
magazine (Forum) which was described to us as "a publication
dedicated to promoting democratic principles, the rule of law and
the interests of indigents" (memorial of the applicants) and "a
typical magazine for intellectuals" ("ein typisches Blatt der
intellektuellen Szene") (oral argument). Neither description was
disputed by the Government.
 
 Let me say at once that one will look in vain for such an
assessment in the judgments of the Austrian courts: nowhere do
they make it clear that they weighed up Judge J.'s right to
protection of reputation against Mr Prager's (and Forum's) right
under Article 10 (art. 10) to write as critically as he thought
fit on a subject of considerable public interest!
 
8. The above analysis of Mr Prager's article (see
paragraphs 3 and 5 above), the fact that it was published in a
serious magazine for intellectual readers (see paragraph 7 above)
- that is for readers who can judge for themselves - and the
circumstance that it concerned a matter of considerable public
concern - in the author's view a scandalous way of dispensing
criminal justice -, all this must be taken into account not only
when finally deciding the necessity issue, but already when
interpreting the text of the five specific and isolated passages
in the article to which Judge J. restricted his private
prosecution (see paragraph 4 above: "in the light of the case as
a whole").
 
9.  Against this background there is much to be said for the
proposition that all these passages - except the fifth - should
be classified as value-judgments.
 
 It is obvious - and was acknowledged by the Eisenstadt
judge - that the fourth passage, that is the result of
attributing a "type" to the judge concerned, is a value-judgment.
This is especially true, since Mr Prager more than once
attributed the same type to several judges. Thus he considered
Judge J. to be a species of the type: "rabid", like one of his
colleagues, Judge A.
 
 As far as the first two passages are concerned, I note
that they do not belong to the body of the article itself, but
form part of a kind of a summary, which together with the title
("Danger! Harsh judges!") and the subtitle ("Report of a visit
of the locus in quo") is placed in a frame (13). This is
evidently meant - and indeed serves - as an eye-catcher. At any
event, as part of this summary, the sentences in question clearly
express the gist of Mr Prager's censure of the criminal court as
such and find their main justification in that (collective)
censure.
_______________
13. See for the text of this summary: paragraph 9 of the
judgment.
_______________
 
 Under these circumstances it seems at least questionable
whether it is acceptable to scrutinise these obviously
generalising sentences exactly as if they formed part of (the
body of) an article devoted to Judge J. only. But that is
precisely what the Austrian courts did, without even bothering
to give reasons for their approach (14).
_______________
14. I note in passing that as regards the second extract, the
Austrian courts did not even take account of the whole passage:
I refer to the full text in paragraph 9 of the Court's judgment.
The full text reads:
 
 "Some Austrian criminal court judges are capable of
 anything; all of them are capable of a lot: there is a
 pattern to all this."
 
Without going into the meaning of this text as a whole, the
Austrian courts assumed that "some Austrian criminal court judges
are capable of anything" could be construed as defamatory of
Judge J.
_______________
 
 Similar considerations apply as far as the third
"passage" is concerned. This passage is a remark made within the
context of the introductory part of the second "chapter" (see
paragraph 5 above). It is not easy to grasp the exact meaning
of the section of which it forms a part. In my opinion the most
plausible reading is that this section somehow continues the
above-mentioned derisive speculations on the proper degree of
auto-censorship (see paragraph 5). According to this
interpretation, the remark means that Judge J.'s behaviour is too
intolerable not to be denounced. That behaviour is then
characterised as "menschenverachtende Schikane" which is rather
difficult to translate (15), but is at any rate rather
denigrating. A note in the text, however, makes it clear that
the characterisation is intended as a summary of the detailed
portrait which follows. As such it is, undoubtedly, a
value-judgment. Moreover, if one considers it in the context of
the article as a whole, it seems rather doubtful (to put it
mildly) whether it is correct to assume - as the judge in the
Eisenstadt Regional Court did - that "Schikane" means that
Judge J. uses his function in order to harm the accused
intentionally. It is true that, according to dictionaries, the
word "Schikane" may have that connotation, but I think that in
the context of the portrayal of the criminal court and the
article as a whole it must rather be understood - and, at least,
can reasonably be understood - as describing a very severe
application of criminal law, regardless of the resulting human
suffering. Here, as when construing the other passages, the
Eisenstadt judge chose from two possible interpretations the one
which was unfavourable to the accused and led to conviction,
without even bothering to make it clear that she had considered
the other interpretation or to state her reasons for rejecting
it.
_______________
15. The translation proposed by the applicant has: "contemptuous
chicanery"; the Court has opted for "arrogant bullying".
_______________
 
 I stress this feature of her judgment since on this point
I wholeheartedly agree with the German Constitutional Court.
According to the established case-law of that court, a judge who
convicts a speaker or author whose utterance is objectively open
to different interpretations, without giving convincing reasons
for choosing the very interpretation which leads to conviction,
violates the right to freedom of expression.
 
10. The Austrian courts (16) opted for an essentially
different approach. They strictly limited their examination to
the five specific and isolated passages targeted by Judge J.'s
private prosecution (17). It goes without saying that this
fundamental difference of approach makes itself felt throughout.
The Eisenstadt judge for instance refused even to consider the
(undisputed) fact that Judge J. had once warned a defence lawyer
to "keep it short" since he "had already reached his decision".
Of course, that fact does not prove a "general bias", nor that
Judge J. treated every accused at the outset as if he had already
been convicted, but it could at least show that Judge J. also
displayed the esprit de corps which Mr Prager had observed during
his fact finding and, consequently, that there was some basis for
his being included in the portrait gallery.
_______________
16. In the present case the most important judgment is that of
the Eisenstadt Regional Court judge. There was no appeal de
novo; the Court of Appeal only examined the applicants' grounds
of appeal; its review of the arguments of the Eisenstadt judge
was rather summary; however, it approved them and dismissed the
appeal.
 
17. I do not overlook the fact that the Eisenstadt judge, having
interpreted the five contested passages as I have indicated,
summed up her judgment on the question whether these five
passages were - objectively - defamatory as follows:
 
 "Consequently, there can be no doubt that the five
 passages incriminated by the private prosecution, taken
 alone as well as considered within the context of the
 article, are defamatory within the meaning of Article 111
 of the Criminal Code."
 
Having studied her judgment very carefully and after noting that
this is the first and last time that the "context of the article"
is mentioned, I cannot but regard the words that I have put into
italics as paying pious lip-service to a principle that she had
completely ignored de facto.
_______________
 
11. This example appears to fit a pattern. One finds it
repeated when one studies how the Eisenstadt judge reacted to
Mr Prager's offer to adduce proof of the factual basis for his
value-judgments. The judge first adopts - without giving proper
reasons - the interpretation of the value-judgments in question
which is most unfavourable to the defendant and then goes on to
say that his offer is to be refused on the ground that it is
clear straight away that it will be impossible to convince the
court that Judge J. acted as he did with malicious intent to
cause suffering (18).
_______________
18. For the requirements of an offer to prove the exceptio
veritatis, see paragraph 13 below.
_______________
 
 The portrait of Judge J. (19) devotes rather a lot of
attention to an affair where Judge J. obstinately - and
unnecessarily - prolonged detention on remand and, moreover, did
not forward a plea of nullity against his detention decision to
the proper authorities. Judge J. did not chose to include this
passage in his private prosecution, but it became relevant when
Mr Prager contended that this very episode was at the root of his
value-judgment "menschenverachtende Schikane" (see paragraph 9
above) and therefore wanted to prove it. His offer was refused
by the Eisenstadt judge on the ground that she felt it to be
completely unbelievable that Judge J. would have consciously and
maliciously wanted to prolong the detention.
_______________
19. See paragraph 11 of the judgment.
_______________
 
12. I allow myself one more example of the same mechanism,
this time with regard to the fifth passage selected by Judge J.
This passage undoubtedly contains a statement of fact(s). One
must, of course, first ascertain which facts. That would seem
rather clear. Mr Prager states that - apparently some time ago -
Judge J. was almost appointed a public prosecutor, but suggests
that he had not obtained the post in question because his name
had again (20) been mentioned in the press, inter alia in
connection with the suspicion of involvement in dishonest
practices (21). It was not denied that there had been such
articles in the press nor that these articles had voiced this
particular suspicion concerning Judge J. Nevertheless, the
Eisenstadt judge - again without considering whether any other
interpretation was possible - read into the passage the statement
that such suspicions still existed at the time of publication of
the impugned article. However, she goes on to say, there was a
decision of the Vienna Court of Appeal some years back in which
Judge J. was cleared of all suspicion in this respect. She might
have explained how Mr Prager could have known about that
decision. But that is not the point I am trying to make. What
is important is that here again we see the same pattern observed
in paragraphs 10 and 11 above: first a non-reasoned
interpretation which is (to put it mildly) not the most obvious
but certainly the most unfavourable and then, on that basis, a
refusal of Mr Prager's offer to prove the exceptio veritatis.
_______________
20. "Again" for, as Mr Prager also relates, it had already
cropped up in connection with a rather unsavoury incident with
a prostitute.
 
21. In order to avoid the impression that Mr Prager here
suggested the possibility of Judge J. having been suspected of
terrible things, I note that in the original text the
unauthorised conduct in question is specified:
"Winkelschreiberei", which - as was explained to us - means that
Judge J. was suspected of having given legal advice for a
consideration, which a judge is not allowed to do.
_______________
 
13. It might perhaps be queried whether or to what extent
placing the burden of proof in cases like this on the journalist
is compatible with Article 10 (art. 10) (22), but since this
question has not been argued, I leave it open. What should be
stressed, however, is that the judgment of the Court of Appeal
makes it clear that Austrian law is unduly exacting in respect
of an offer of proof of the exceptio veritatis. The accused has
to indicate exactly which facts he wants to prove. Moreover, he
must not only explain precisely why these facts justify what he
has said or written, and how these facts may be proved by the
evidence offered, but he must in addition convince the court,
beforehand, that there is a likelihood that these facts will be
proved.
_______________
22. Under the case-law of the German Bundesgerichtshof, where
the press has addressed questions of public interest and has
shown that it has observed due journalistic care it is for the
plaintiff to prove falsehood: see, for example, J. Soehring, "Die
neue Rechtsprechung zum Presserecht", NJW 1994, pp. 16 et seq.
_______________
 
14. Not only (with one exception) was Mr Prager not allowed
to adduce the evidence he had offered in respect of the facts on
which his value-judgments were based, he was also held not to
have acted with due journalistic care.
 
 That reproach is not unfounded to the extent that it is
common ground that Mr Prager did not give Judge J. an opportunity
to comment on the draft of the article. That indeed was a
serious failure to exercise due care (23), whether or not - and
that is a matter for speculation - Judge J. would have used the
opportunity to make relevant comments.
_______________
23. The argument of the Austrian Government that, as a
consequence of this omission by Mr Prager, his article cannot be
considered as a contribution to a critical discussion on a
subject of considerable public interest is clearly a non
sequitur.
_______________
 
 However, serious as this lack of care may be, it does not
- in itself - justify the stricture of "glaring carelessness"
which the Eisenstadt judge levelled at Mr Prager. It is true
that she grounds this stricture on two additional arguments, but
these are both flawed since they are based on the one-sided
approach which has been analysed in the preceding paragraphs.
The Eisenstadt judge disregarded the article as a whole and,
moreover, treated the two isolated sentences from the summary
referred to in paragraph 9 above as if they formed part of (the
body of) an article devoted to Judge J. only.
 
 The article as a whole makes it sufficiently clear that
it is based on personal observations over a considerable period
as well as on the questioning of such witnesses as could
reasonably be regarded as having professional experience of this
particular court and its members, such as criminal lawyers, court
reporters and probation officers. The Eisenstadt judge suggests
that such questioning only yields hearsay evidence which is
suspect, but in my opinion the methods used by Mr Prager cannot
per se be held to fall short of the standard of proper
journalistic care.
 
 The argument that Mr Prager had, by his own account, not
visited a trial presided over by Judge J. is unconvincing since -
unless one misconstrues the summary as statements of fact about
Judge J. - Mr Prager's article nowhere criticises Judge J.'s way
of presiding. Perhaps there is one exception, the anecdote about
the admonition to keep it short (see paragraph 10 above), but I
do not think that a journalist would be lacking in due care if
he published that story on the hearsay evidence of the very
lawyer thus addressed from the bench, particularly as it fitted
perfectly the esprit de corps which he had himself observed and
had been told about by numerous other witnesses.
 
15. This brings me to a further crucial criticism. The
Eisenstadt judge found that it was "evident" that Mr Prager had
acted with the (malicious) intent to defame Judge J. She even
went so far as to describe Mr Prager's malicious intent as
"intensive". Her only reasons are, however, that Mr Prager is
better educated than the average and, moreover, an experienced
reporter. Consequently, she goes on to say, Mr Prager must have
realised that the five passages concerning Judge J. were very
negative and would affect him accordingly.
 
 Now, in my opinion this is a test that cannot be
accepted. I will not deny that there are instances where the
mere wording of an observation concerning a named person is
sufficient to warrant the conclusion that it must have been made
with malicious intent to defame. But it is incompatible with the
right to freedom of expression to draw such an inference from the
mere wording of five isolated passages of a long article in a
serious magazine on a subject of general public interest. Quite
apart from the one-sided interpretation of these five passages
on which the impugned conclusion is based, it simply cannot be
accepted that the mere wording of a critical comment on a subject
of general public interest suffices for that comment to be
classified as being made with malicious intent to defame. That
would mean that the courts would totally disregard the author's
purpose of initiating a public discussion; that would mean that,
de facto, only the interests of the plaintiff would be taken into
consideration and would curb freedom of expression to an
intolerable degree. I recall that "Article 10 (art. 10) protects
not only the substance of the ideas and information expressed,
but also the form in which they are conveyed" (24). For these
reasons I think that at least where a critical comment on a
subject of general interest is involved, even very exaggerated
terms and caustic descriptions do not per se justify the
conclusion that there was malicious intent to defame.
_______________
24. This quotation too comes from the Jersild judgment
(pp. 23-24, para. 31); see footnote 2 above. When the Government
argued that Mr Prager could have couched his message in less
aggressive terms, they apparently overlooked this doctrine of the
Court which makes it, at least, necessary to reconsider the
customary approach of national courts asking themselves whether
the author could not have expressed his opinion in "more
moderate" terms and finding against him if they feel that this
question should be answered in the affirmative.
_______________
 
 The decisive test should be whether the impugned wording,
however impudent, curt or uncouth, may still be found to derive
from an honest opinion on the subject - however excessive or
contemptible that wording may seem - or whether the only possible
conclusion is that the intention was only or mainly to insult a
person.
 
 Here again I find that the Austrian courts applied
standards which are not in conformity with the principles
embodied in Article 10 (art. 10) and here again I (at least)
question whether, if they had applied the correct test, they
would not have come to a different conclusion. As I have already
indicated, I am persuaded that Mr Prager was honestly shocked by
his experiences within the Vienna Regional Court. Not only
shocked, but brimming over with sincere indignation, not to say
wrath. He fully realised that he had expressed that wrath in
unusually strong terms, but in his ire he felt that the only
thing that mattered was to drive home his message, regardless of
the feelings of the nine judges whom he had targeted. In his
view they did not deserve leniency (25). That attitude may be
morally and perhaps even legally reprehensible; in my opinion it
does not amount to malicious intent.
_______________
25. This is not a one-sided interpretation on my part. There
is at least one remark in the article which explicitly
corroborates my thesis. Mr Prager comments on the sentence in
a case where a fatally-ill artist is found guilty of fiscal
fraud. Apparently, he finds the sentence extremely severe. He
imputes that sternness to a desire to avoid even an appearance
that some people might be treated more leniently than others.
That wish is, apparently, also despicable for he goes on to put
the rhetorical question "whether judges, whether a judiciary, who
act with such a degree of 'correct' lack of comprehension, are
themselves entitled to understanding".
_______________
 
16. I would sum up as follows:
 
 (a) The Austrian courts only took into account five
specific and isolated passages, ignoring their context. The
Government have argued that they could not proceed otherwise
since under Austrian criminal law they were bound by the terms
of the private prosecution. I do not find that argument
convincing: since Article 10 (art. 10) of the Convention requires
that the context should be taken into account and since in
Austria the Convention has the same rank as constitutional law
(26), the Austrian courts should have disregarded those
provisions of criminal procedure which made it impossible to
consider the journalist's article as a whole.
_______________
26. See, inter alia, M. Nowak in "The Implementation in National
Law of the European Convention on Human Rights", Proceedings of
the Fourth Copenhagen Conference on Human Rights, 28 and
29 October 1988, p. 33.
_______________
 
 (b) The Austrian courts interpreted these five passages
very one-sidedly and at any event did not give reasons for
choosing not to adopt other possible and more favourable
interpretations.
 
 (c) This one-sided interpretation and the unduly severe
Austrian rules on the possibility of adducing proof of the
exceptio veritatis resulted in Mr Prager being to all practical
purposes precluded from adducing such proof (27).
_______________
27. Consequently, I am rather surprised by the Court's
suggestion (paragraph 37) that the applicant's conviction was
justified inasmuch as "in the absence of a sufficient factual
basis" his accusations appeared "unnecessarily prejudicial"!
_______________
 
 (d) The above defects also affected the Eisenstadt
court's decision on the due journalistic care issue; moreover,
the test applied in deciding that issue is partly unacceptable.
 
 (e) The test applied in determining whether or not
Mr Prager had the required malicious intent is unacceptable.
 
 (f) The combined effect of all these defects is that, de
facto, national courts failed completely to carry out the
necessary balancing exercise between the requirements of the
protection of reputation and those of free speech.
 
17. The conviction and sentence of Mr Prager constitute a
serious interference with the right to freedom of expression of
the press. The Eisenstadt judge said explicitly that she
intended to teach Mr Prager and his brother journalists a lesson.
 
 Such an - intentional - interference on the basis of an
article on a subject of considerable public interest in a serious
periodical must be very convincingly justified in order to be
acceptable for the Court of Human Rights. For the reasons set
out above and summarised in paragraph 16 I find that the Austrian
judgments do not satisfy this test.
 
 Accordingly, I find that the conviction and sentence of
the applicants constitute a violation of Article 10 (art. 10)
(28).
_______________
28. To avoid misunderstanding I note that this conclusion does
not necessarily imply that Mr Prager's article meets the
requirements of that provision; it only means that the Austrian
judgments did not meet those requirements. In other words: I do
not say that any and every legal action based on the impugned
article would have been bound to fail in so far as any finding
in favour of the plaintiff would have violated Article 10
(art. 10); I am merely saying - and I am not required to say more
- that the findings under review here have violated that Article
(art. 10).
_______________