CASE OF SCHWABE v. AUSTRIA
Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
N. Valticos;R. Pekkanen
6. Mr Schwabe is an Austrian citizen residing at St Andrä. At the relevant time, he was Chairman of the Young Austrian People’s Party (Junge Österreichische Volkspartei, ÖVP) for the District of Wolfsberg in Carinthia and councillor (Gemeinderat) of St Andrä. 7. In December 1984 Mr Tomaschitz, Mayor of Maria Rain in Carinthia and a member of the ÖVP, was convicted of negligently causing bodily harm (fahrlässige Körperverletzung) and of abandoning the victim (Imstichlassen eines Verletzten) of a traffic accident whilst under the influence of alcohol (at least 1.75 per mille). He was sentenced to four months’ imprisonment. 8. The question whether the Mayor should resign because of his conviction later became the subject of discussion in political circles and the press in Carinthia. On 13 August 1985 the Carinthian newspaper Kleine Zeitung published an article headed "If Tomaschitz doesn’t think it over, we will". That article quoted from an interview with the Head of the Provincial Government, Mr Wagner, who was the Chairman of the Carinthia branch of the Austrian Socialist Party (Sozialistische Partei Österreichs - SPÖ), about the question whether the Mayor should resign or not. Mr Wagner stated that, although an accident of the kind in question could happen to anybody, it was not acceptable that a person who had acted in such a way should remain in public office. He continued: "I do not intend to take part in a witch hunt, but after a period of reflection Tomaschitz ought to realise that he must resign". According to Mr Wagner, however, that was primarily a matter for the ÖVP. He nevertheless concluded by saying that if Mr Tomaschitz would not think it over, the Regional Supervisory Authority (Gemeindeaufsicht des Landes) would. 9. On 19 August 1985 Mr Schwabe issued a press release by way of reply to that article and sent it to several Carinthian newspapers. On 20 August the Kleine Zeitung published a summary, headed "Looking after morality in the SPÖ". A complete version of the release appeared on the same day in the Neue Volkszeitung (an ÖVP newspaper), under a headline "Different standards?" (Zweierlei Maß?). It read: "Councillor Karl Schwabe, Chairman of the Young ÖVP for the Wolfsberg District, stated in a broadcast that, after being convicted for leaving the scene of an accident without reporting it, Josef Tomaschitz, the Mayor of Maria Rain and a member of the ÖVP, would unquestionably have to resign. However, he added that Mr Wagner, the Head of the Carinthian Government, did not have the slightest moral right to attack Mayor Tomaschitz for his refusal to resign. Mr Wagner had known for years that his Deputy, Erwin Frühbauer, had caused an accident on 10 July 1966 at Scheifling (Styria) while under the influence of alcohol (im alkoholisierten Zustand). The accident had left two children fatherless. One could not help feeling that the Head of the Carinthian Government applied stricter standards to a ‘small mayor of a village’, who was a member of another political party, than to his ‘party friend’ and Deputy, Frühbauer. Schwabe concluded that Wagner’s credibility would be enhanced if he were to provide, within the SPÖ, for the political morals which he requires of others." 10. The applicant had based his press release on an article that had appeared in the Viennese magazine Profil on 9 March 1984. It referred to the circumstances of Mr Frühbauer’s car accident in 1966, in which a man had died and other persons had been injured, and contained the following passage: "... Erwin Frühbauer was found to have a blood alcohol content of 0.8 per mille. That was the limit. Less than a year later, on 31 May 1967, Frühbauer, whose immunity as a Member of Parliament had been lifted, was sentenced by the Leoben Regional Court to a prison term of six months, suspended for three years, for negligent homicide. There was no conviction for intoxication (Alkoholisierung). Jurists are still guessing at the reasons because, according to Article 5 para. 1 of the 1960 Road Traffic Code, impairment by intoxication is presumed ‘at 0.8 per mille or more’. Be that as it may. I do not want (and the criminal law does not allow me) to reproach Frühbauer with his conviction at that time. After all, no one is immune from being similarly involved in a traffic accident. My accusation is a political one. When Frühbauer was appointed Transport Minister by Kreisky in 1970, he kept quiet about his conviction, or at least about the fact that at that time he still had a criminal record (noch vorbestraft war). In fact on 31 May 1967, the date of the judgment, the three-year period of suspension of his sentence began to run. Six weeks before the end of that period, on 21 April 1970, Mr Frühbauer was appointed Transport Minister but he continued to have a criminal record for a long time afterwards, because of the period which was then applicable with regard to the cancellation of such records. He was thus, to my knowledge, the only Minister of the Second Republic to have a criminal record ..." The applicant had verified the contents of the Profil article in a telephone conversation with its author. Furthermore, he had taken into account the judgment of 31 May 1967 of the Leoben Regional Court (Kreisgericht). In determining sentence, that court had regarded as an aggravating circumstance the fact that the accused had been driving after consuming alcohol in an amount that brought him close to the level at which a driver was presumed to be intoxicated (Alkoholisierung, 0.8 per mille). 11. On 4 September 1985 Mr Frühbauer requested the Klagenfurt Regional Court (Landesgericht, "the Regional Court") to initiate a preliminary investigation against Mr Schwabe. After completion of the investigation, Mr Frühbauer brought a private prosecution under Article 111 paras. 1 and 2 and Article 113 of the Criminal Code (see paragraphs 18 and 19 below). 12. On 26 September 1986 the applicant was convicted of defamation (Article 111 paras. 1 and 2 of the Criminal Code) and of having reproached a person with an offence for which he had already served his sentence (Article 113). The penalty imposed was a fine of 3,000 schillings or, in default of payment, thirty days’ imprisonment. The Regional Court also ordered the seizure of the relevant issue of the Neue Volkszeitung and the publication of its judgment and awarded to Mr Frühbauer compensation of 10,000 schillings, to be paid by the owners of the newspaper. In addition, the latter were declared to be jointly and severally liable for the payment of the fine and the complainant’s costs. After reciting the relevant facts, the Regional Court concluded that, contrary to Article 113, Mr Schwabe had reproached Mr Frühbauer with a conviction, relating to a traffic accident, that dated back about twenty years. Furthermore, his statement that the complainant was under the influence of alcohol and his comparison of the accident in question with Mr Tomaschitz’s, in addition to his criticism of the complainant for lacking political morals, amounted to defamation. 13. According to the Regional Court, Article 113 was primarily aimed at securing the reintegration of criminal offenders, but it was applicable irrespective of whether or not reproaching them with a previous conviction jeopardised that reintegration. Mr Schwabe had not been obliged under Article 114 para. 2 of the Criminal Code (see paragraph 18 below) to make the impugned statement. The fact that a political party felt embarrassed about a car accident of one of its officials was not an excuse for "digging out" a very old accident of an official of the opposite party. Moreover, the applicant had not been under a duty to reply to a political opponent, since Mr Wagner’s criticisms were addressed to Mayor Tomaschitz and not to him. In particular, Mr Schwabe, the Chairman of a small district organisation, did not need to react by defaming a third person. 14. In the Regional Court’s view, moreover, it was not open to the applicant to plead that his allegation that Mr Frühbauer had been driving under the influence of alcohol was correct. The man in the street would conclude from such a statement that the latter - like Mr Tomaschitz - had had a blood alcohol content of more than 0.80 per mille at the time of the accident. In fact, a lower level was tolerated by the legislature and the public, and the applicant had not mentioned that the complainant had not been convicted of drunken driving (in alkoholbeeinträchtigtem Zustand). Neither could Mr Schwabe maintain that he had intended to refer to a blood alcohol content lower than 0.8 per mille. The aim of his press release had been to put both accidents in moral terms on an equal footing, which would entail the same consequence, namely the resignation of the two officials concerned. That, together with the title of the article, "Different standards?", could have led the reader to believe that the complainant’s blood alcohol content had also attained the forbidden level at the time of his accident. The defendant also could not claim that his press release had been directed not against Mr Frühbauer, but against Mr Wagner. It was true that the criticism relating to a lack of political morals had been primarily aimed not at the latter, who was responsible in principle for the political morals of the SPÖ, but at the former, who had not resigned after his accident. However, that particular allegation could not in itself constitute defamation, since a politician had to be tolerant in this respect; what was decisive in the present case was the comparison of the two accidents from a moral point of view. In respect of this defamation too, the applicant could not rely on Article 114 para. 2 of the Criminal Code, because, as he had or should have been aware, the impugned statement had been incorrect. Furthermore, in the present case proof of good faith (Article 111 para. 3; see paragraph 18 below) was not relevant, since the offence had taken place through a publication; neither was proof of proper journalistic care (section 29 of the Media Act, Mediengesetz; see paragraph 21 below), since the defendant was not a journalist. As to proof of truth, the Regional Court considered evidence given by a witness of Mr Frühbauer’s accident in 1966, as well as the expert opinions submitted in the relevant criminal proceedings in 1967, and concluded that Mr Schwabe had failed to prove the truth of his allegations. 15. On 5 February 1987 the applicant lodged an appeal (Berufung) against his conviction with the Graz Court of Appeal (Oberlandesgericht). He submitted in particular that he had written his press release in the context of a political discussion and in reply to criticisms by the Head of the Carinthian Government expressed in respect of a member of the ÖVP and of that party, and that the release had not been directed against Mr Frühbauer. He had, accordingly, felt himself obliged to defend his own party and to inform the public about the Head of the Provincial Government’s political morals and apparent motives. He had then remembered the 1984 Profil article (see paragraph 10 above) and found that the two accidents raised the same problem, namely whether it was proper for a person with a criminal conviction to exercise official functions. He had thought that this question was worth discussing and wanted to draw the attention of the public to a possible information lacuna. Finally, he had considered his statement about the complainant having driven under the influence of alcohol to be correct, since it was based on the formulation used by the Leoben Regional Court in its judgment of 31 May 1967 (see paragraph 10 above); and it was also justified in the context of a political discussion. 16. On 29 April 1987 the Court of Appeal dismissed Mr Schwabe’s appeal. The court observed that the applicant’s statement had clearly amounted to a reproach concerning a criminal conviction for which the sentence had already been served, within the meaning of Article 113 of the Criminal Code. In its view, he had not been compelled to reply to Mr Wagner. Neither had he been given any mandate to reply in the name of the ÖVP, nor had he himself been addressed directly as Chairman of the Young ÖVP or as a member of the party’s executive committee. Someone who by his conduct has given good reason for criticising him must accept attacks on his honour to a greater extent than someone who has not. Furthermore, Mr Frühbauer himself had made no statement which called for reaction on the part of Mr Schwabe. The court also upheld the Regional Court’s judgment in all other respects. 17. The judgment was served on the applicant on 4 September 1987. He thereupon requested the Attorney-General (Generalprokurator) to file a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes), with reference, inter alia, to the right to freedom of expression under Article 10 (art. 10) of the Convention and to the Lingens v. Austria judgment of 8 July 1986 (Series A no. 103-B). Mr Schwabe was informed on 27 October 1987 that the Attorney- General did not intend to take any action. 18. Article 111 of the Criminal Code provides: "1. Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ... 2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine ... 3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true." Under Article 112, "evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the correctness of the statement or his good faith ...". Under Article 114 para. 1 "conduct of the kind mentioned in Article 111 ... is justified if it constitutes the fulfilment of a legal duty or the exercise of a right". Under paragraph 2 of the same provision "a person who is forced for special reasons to make an allegation within the meaning of Article 111 ... in the particular form and manner in which it was made, is not to be punished, unless that allegation is untrue and the offender could have been aware thereof if he had acted with the necessary care". 19. Article 113 of the Criminal Code reads as follows: "Anyone who in such a way that it may be perceived by a third person reproaches another with having committed a criminal offence in respect of which the sentence has already been served, or has been waived or reduced (even if only conditionally) or in respect of which the sentence has been provisionally deferred shall be liable to imprisonment not exceeding three months or a fine ..." 20. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim compensation from him. Furthermore, the publisher may be declared to be liable jointly 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), as well as the publication of the judgment in so far as this appears necessary for the information of the public (section 34). 21. Section 29 of the Media Act provides as follows: "1. A media owner (publisher) or media employee shall not be punishable for an offence relating to material appearing in the media, in respect of which proof of truth is admissible, not only if proof of truth has been brought but also if there was a predominant public interest in publication and even with proper journalistic care being applied he had sufficient grounds for considering the statement to be true. However, in respect of such an offence relating to a person’s private life, a media owner (publisher) or media employee shall not be punishable only if the statement is true and directly connected with public affairs. 2. Such proof is to be received only if the accused relies thereon. In cases within the first sentence of paragraph 1, the court must receive proof of truth, if tendered by the accused and admissible, even if it assumes that the exercise of proper journalistic care has been proved. 3. If an accused is acquitted only because the conditions specified in the first sentence of paragraph 1 are met, the court must, in analogous application of section 34, order publication of the finding that proof of truth has not been tendered or has not succeeded, and order that the accused is to bear the costs of the criminal proceedings including the costs of such publication. 4. Article 111 para. 3 and Article 112 of the Criminal Code shall not apply."