CASE OF OBERSCHLICK v. AUSTRIA (No. 2)
Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
C. Russo;R. Pekkanen
7. Mr Oberschlick, a journalist living in Vienna, was at the material time editor of the periodical Forum. 8. On 7 October 1990 on the occasion of a "peace celebration" (Friedensfeier) at the foot of the Ulrichsberg, Mr Haider, leader of the Austrian Freedom Party (Freiheitliche Partei Österreichs - FPÖ) and Governor (Landeshauptmann) of the Land of Carinthia, gave a speech glorifying the role of the "generation of soldiers" who had taken part in the Second World War. In it he said that all soldiers, including those in the German army, had fought for peace and freedom and that people should therefore not differentiate between "good" and "bad" soldiers of that generation but should rather be grateful to all of them for having founded and built today’s affluent, democratic society. Mr Haider then criticised an Austrian writer who had, in his view, disparaged all those killed in the Second World War, and continued as follows: "Ladies and gentlemen, freedom of opinion is taken for granted in a democracy, but it reaches its limits where people lay claim to that spiritual freedom they would never have got if others had not risked their lives for them so that they may now live in democracy and freedom." 9. This speech was reproduced in full in Forum and commented on by the applicant and the aforementioned Austrian writer. Mr Oberschlick’s passage, entitled "P.S.: ‘Trottel’ statt ‘Nazi’" ("P.S.: `Idiot’ instead of `Nazi’"), read as follows: "I will say of Jörg Haider, firstly, that he is not a Nazi and, secondly, that he is, however, an idiot. That I justify as follows: [L.] [...] wholly convinced me that being called a Nazi is an advantage to Jörg Haider. That is why I ask my friends to forgive my abstaining from using that description for that very good reason. ... As [Haider] denies those of us who in his eyes did not have the legitimising good fortune [legitimierende Glück] to have risked our lives in the uniform of honour [Ehrenkleid] of the Third Reich for the Hitlerian freedom to wage wars of conquest [Raubkrieg] and impose the final solution, [and as he denies us] the right ‘to lay claim to a purely "spiritual" freedom of opinion’, let alone a "political freedom", and he himself has never had the good fortune to serve in the uniform of honour of the SS or the German army [Wehrmacht], thus excluding himself along with the vast majority of Austrians from any exercise of freedom, he is, in my eyes, an idiot." 10. On 26 April 1991 Mr Haider brought an action for defamation (üble Nachrede) and insult (Beleidigung) against the applicant in the Vienna Regional Criminal Court (Landesgericht für Strafsachen - "the Regional Court"). He also applied for an order for the immediate seizure of the relevant issue of the periodical and for an announcement of the institution of proceedings to be published in Forum. 11. On 30 April 1991 the court allowed the application for an announcement to be published, but on 21 May 1991 Mr Oberschlick appealed against that decision. 12. On 23 May 1991 the court found the applicant guilty under Article 115 of the Criminal Code (see paragraph 19 below) of having insulted Mr Haider and sentenced him to pay twenty day-fines of 200 Austrian schillings (ATS), with ten days’ imprisonment in default. In the court’s view, the word Trottel was an insult (Schimpfwort) and could only ever be used as a disparagement (Herabsetzung); it therefore could never be used for any objective criticism (sachliche Kritik). In the written version of the judgment the court ordered the seizure of the relevant issue of Forum. 13. On 30 August 1991 the applicant lodged an appeal (Berufung) against that judgment. In his submission, the court had held that the expression in question constituted an insult to Mr Haider because it had disregarded the context in which it had been used. If the court had taken into account the whole of the article and its line of argument, it would have realised that the term complained of was justified since it served as a conclusion to the finding that Mr Haider had in his speech excluded himself from the enjoyment of freedom of opinion. Mr Oberschlick also complained that the seizure of the relevant issue of Forum had not been ordered when judgment was given. 14. On 16 September 1991 the applicant asked for the record of the hearing to be rectified and supplemented. 15. On 18 October 1991 the Regional Court rectified part of the record and refused the further amendments sought by the applicant as irrelevant. On 10 December he lodged an appeal (Beschwerde) against that decision. 16. In the meantime, on 5 December 1991, the Regional Court had rectified its judgment and removed from it the order for the seizure of Forum. 17. On 18 March 1992 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal against the order to publish an announcement about the proceedings instituted by Mr Haider (see paragraph 11 above). On the same day the Court of Appeal declared inadmissible the appeal against the decision to rectify the record of the hearing (see paragraph 15 above). 18. On 25 March 1992 the Court of Appeal upheld the Regional Court’s judgment but reduced the rate of the day-fine to ATS 50 (see paragraph 12 above). It noted that the word in issue appeared in the title of the article. Only those who had read not just the lines written by the applicant but also Mr Haider’s speech and the comments accompanying it in Forum would understand that Mr Oberschlick had called the speaker an "idiot" as, in his view, he had in his speech excluded himself and the vast majority of Austrians from the enjoyment of freedom of opinion. Those who had not would link the term Trottel not with the conclusion that could be drawn from Mr Haider’s words but with his own person. It thus amounted to an insult that overstepped the limits of acceptable objective criticism (die Grenze sachlich zulässiger Kritik) and Mr Oberschlick must have been aware of that. At the most, he could have described the consequences of Mr Haider’s remarks as stupid (vertrottelt). Admittedly, politicians who supported opinions that were open to criticism had to accept that they would be subject to especially hard-hitting attacks, even personal ones. The right to freedom of opinion must not, however, lead to insults replacing arguments of substance in political debate. The fact that a politician resorted to insults did not justify his detractors doing the same, unless personally provoked. Taking Article 10 of the Convention (art. 10) as the basis for a right to insult someone would bring about a general debasement (generelle Verrohung) of political debate. 19. The relevant provisions of the Criminal Code read as follows: "1. Anyone who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such 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. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true." "1. Anyone who, in public or in the presence of several others, insults, mocks, mistreats or threatens to mistreat a third person, shall be liable to imprisonment not exceeding three months or a fine ... unless he is liable to a more severe penalty under another provision. ... 3. Anyone who, solely from indignation at the behaviour of another person, allows himself to be provoked into insulting, mistreating or threatening to mistreat that person in a way that is excusable in the circumstances, shall have a defence if his indignation is understandable to the average person, regard being had in particular to the time that has elapsed since the event that provoked it."