CASE OF ANDREAS WABL v. AUSTRIA
No violation of Art. 10
6. In June 1988 the applicant participated in a protest campaign against the stationing of interceptor fighter planes (Abfangjäger) near Graz airport. In the course of a police action, Police Officer Fellner charged the applicant with having scratched his right arm, and he subsequently requested that the applicant be prosecuted for having caused grievous bodily harm (schwere Körperverletzung). In July 1988 the Graz Public Prosecutor's Office (Staatsanwaltschaft) informed the applicant that the investigation proceedings against him had been discontinued. 7. On 14 August 1988 the “Neue Kronen-Zeitung - Steirerkrone”, issued in Graz, published the following article, under the title “Styrian Green politician and member of Parliament injured civil servant/Request for him to be handed over on account of the risk of infection” and with the headline “Police Officer claims: AIDS test for Wabl!”. The article read as follows: “Dramatic contribution to the debate on the privilege of members of Parliament: Police Officer Walter Fellner (34) from Aflenz not only requests that Styrian Green politician and member of Parliament Andreas Wabl be handed over, but also that the member of Parliament - who is immune because of privileges, be subjected to an AIDS-test. Reason: Wabl scratched Fellner and drew blood. 'I don't dare to touch my wife and I can't even kiss my children' - Since he has been involved in a police action against the opponents of the [planes] the family life of Police Officer Walter Fellner is ruined. The fear of the immune deficiency syndrome paralyses the social relations and the sexual life of the father of three. The explosive background: On 10 June, shortly after the [planes] had been stationed, the Police Officer, a senior Police Inspector, participated in a police action in the area of a camp of opponents of the [planes] at Graz-Thalerhof airport. On this occasion, 'friction' developed between the demonstrators and the police. The result of an altercation between Fellner and the Green politician Andreas Wabl was two bleeding scratches, one five, the other ten, centimetres long, to Fellner's right lower arm. Two witnesses and the local medical officer confirmed the injuries. Fellner does not claim that the immune member of Parliament is suffering from the immune deficiency syndrome, but, as the Inspector told the 'Steirerkrone': 'The member of Parliament had been in contact with the other demonstrators and they were not particularly clean.' Criminal proceedings against Wabl on a charge of causing bodily injury have been discontinued on the ground of the triviality of the injury. Fellner nevertheless requests that the member of Parliament be handed over. 'Mr. Wabl has to undergo an AIDS-test, as he might have infected me', states Fellner and thereby asks the Green 'scratcher' to have a blood sample taken for the purposes of an immune deficiency syndrome test. Wabl's victim also intends to claim compensation for moral damages. As regards his claims for compensation, Fellner is represented by the Graz lawyer Candidus Cortolezis, who is known to be close to the opponents of the [planes] and not to the authorities who guard the [planes].” 8. This article, reproduced on pages 8 and 9 of the newspaper, was accompanied by a photograph showing the applicant and two police officers with the sub-title “AIDS-test for the privileged member of Parliament? Wabl (centre) in an altercation with the police.” 9. The article was announced on the front page as follows: “Green politician Wabl should have an AIDS test. The Police Officer Walter Fellner from Aflenz asks Green member of Parliament Andreas Wabl to undergo an AIDS-test. Wabl scratched Fellner and drew blood in the course of an altercation (pages 8/9).” 10. The applicant requested the author of the article in question, who had not contacted him prior to its publication, to publish a rectification as well as a statement drafted by the applicant. 11. The text of this statement, published in the "Steirerkrone" on 17 August 1988, read as follows: “In the context of the report on Fellner's request for an AIDS-test, the 'Steirerkrone' wishes to clarify that, when mentioning the disease AIDS, it never intended to defame, for personal or political reasons, the member of Parliament Andreas Wabl. We wish to apologise for any gross claims which were not appropriate to our standards of fairness and our reputation as journalists.” 12. This statement was printed as an annex to an article with the headline "Defamation of Green politician not intended/hygiene expert Möse reassures: 'No AIDS-infection from scratches!'", with the following text: “On Tuesday, the Graz 'hygiene-king', university professor Josef Möse, reassured the Police Officer Walter Fellner from Aflenz, who feared an infection with AIDS from scratches which were allegedly inflicted on him by Green member of Parliament Andreas Wabl. Möse: 'AIDS cannot be caught from scratches.' Möse, President of the Austrian AIDS Committee, informed the 'Steirerkrone': 'Nobody has anything to fear from a simple scratch. Infection is impossible.' The Head of the Graz Institute for Hygiene declared his immediate willingness to 'hold at any time an explanatory talk' with the senior Police Inspector and his family. As reported Fellner feared that he had been infected with the AIDS virus by two scratches to his right lower arm, which were inflicted on him in the course of an altercation with the Green member of Parliament Andreas Wabl. Criminal proceedings on a charges of causing bodily harm (superficial reddening) have been discontinued by the Graz Public Prosecutor's Office on the ground that the factual elements of the offence were not present.” 13. The article further referred to the applicant's claims that the matter was a political campaign intending to bring him into disrepute. 14. Also on 17 August 1988 the applicant, on the occasion of a press conference, commented on the events of 10 June 1988 and in particular the above articles of 14 and 17 August 1988. He informed the press of his opinion regarding the background to the events which he considered to be a "political character assassination" ("politischer Rufmord"). When asked by a journalist how he felt about the above events, the applicant replied as follows: “This is Nazi-journalism.” 15. This statement was quoted in the Austrian media. 16. On 29 August 1988 the company publishing the newspaper “Kronen-Zeitung” brought injunction proceedings under section 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) against the applicant with the Graz Regional Civil Court (Landesgericht für Zivilrechtssachen). It requested that the applicant be prohibited from repeating the statement according to which the contents of the “Kronen-Zeitung” were “Nazi-journalism” and to arrange for a rectification. 17. In the context of private prosecution proceedings instituted by the applicant in respect of the article of 14 August 1988, the Vienna Regional Criminal Court (Landesgericht für Strafsachen), as confirmed by the Vienna Court of Appeal (Oberlandesgericht) on 5 February 1990, convicted the company publishing the “Kronen-Zeitung” of defamation, pursuant to the Media Act (Mediengesetz), and ordered it to pay compensation to the applicant. 18. On 5 February 1993 the Graz Regional Civil Court dismissed the injunction claim. The Court observed that section 1330 of the Civil Code envisaged an injunction in respect of any statement of facts which jeopardised someone's reputation, income or livelihood, the untruth of which was known or must have been known. Considering all circumstances, and in particular the background of the press conference and the impugned statement, the Court found that the applicant had used the expression “Nazi-journalism” as a value-judgment. The Court based its decision on the statements made by the applicant and various witnesses, as well as on an expert opinion regarding the interpretation of the expression “Nazi-journalism”. 19. On 30 June 1993 the Graz Court of Appeal dismissed the plaintiff's appeal (Berufung). The Court of Appeal confirmed the findings of the first instance court that the impugned statement was a value-judgment. Furthermore, even assuming that the impugned statement was an untrue statement of fact, the plaintiff had failed to show that the applicant had known or should have known that this statement was untrue. In this respect, the Court of Appeal referred to the expert opinion according to which the defamation of political opponents with an alleged illness was an essential element of the journalism under the Nazi regime. Furthermore, even assuming that the impugned statement amounted to an insult, it was justified as a reaction to the plaintiff's previous publication on the applicant. 20. On 14 December 1993 the Austrian Supreme Court (Oberster Gerichtshof), upon the plaintiff's further appeal (außerordentliche Revision), reversed the Appeal Court's decision and issued an injunction against the applicant prohibiting him from repeating the statement that the article of 14 August 1988 amounted to “Nazi-journalism”, and similar statements. 21. According to the Supreme Court, section 1330 § 2 of the Civil Code presupposed facts, i.e. circumstances, the existence of which could be demonstrated. If a value-judgment was based on particular facts it comprised a statement of facts. The question whether or not “facts” had been disseminated had to be examined against the general context of the impugned statement, as understood by the man in the street. In this respect the interpretation least favourable to the offender had to be placed on the statement. Objective criticism presupposed that the value-judgment corresponded to unchallenged or proven facts. The Supreme Court further observed that, under section 1330 § 2 of the Civil Code, the plaintiff had to prove that the discrediting statement was untrue, unless the statement also amounted to an insult; in the latter case, the offender had to prove the truth of the statement concerned. The question whether or not a statement constituted an unlawful interference with a person's reputation could only be assessed by balancing all relevant circumstances. 22. The Supreme Court found that the applicant's reproach of “Nazi-journalism” had concerned an article published by the plaintiff, and had arisen on the occasion of a press conference concerning the plaintiff's defamatory report about the applicant. The impugned statement had been an answer to a question put by one of the journalists, and, in the circumstances, the Court had no doubt that this statement only related to the particular article of 14 August 1988. In this context, the applicant's statement was a value-judgment. In any event, there was no indication as to how the journalist had understood the applicant's reproach “Nazi-journalism”. 23. The Supreme Court considered further whether this value-judgment fell within the scope of section 1330 § 1 of the Civil Code. The plaintiff could claim an injunction under this provision if, considering all circumstances, the plaintiff's interests were not less important than the applicant's. The Supreme Court found that the plaintiff had an interest not to be associated with National Socialism. The reproach “Nazi-journalism” was close to a charge of criminal behaviour under the National Socialism Prohibition Act (Verbotsgesetz). The Supreme Court also noted that the applicant's statement was a reaction to an article published by the plaintiff which contained the assumption that the applicant was suffering from the immune deficiency syndrome, i.e. a contagious disease, which provokes fear and antipathy amongst the majority of the population. His indignation about the defamatory reporting might appear understandable but could not justify the reproach that the plaintiff's way of reporting came close to criminal behaviour, in particular as he himself could have brought proceedings under section 1330 of the Civil Code against the plaintiff. Balancing all circumstances, the Supreme Court concluded that the applicant's interests did not outweigh the plaintiff's. The right to freedom of expression could not justify such a serious attack on the plaintiff's reputation. For the same reasons, the impugned statement could not be regarded as permissible political criticism, which is supposed to provoke or shock. The Supreme Court also noted that, having regard to the applicant's submissions in the course of the proceedings, there was a risk that he would repeat the statement in question. 24. This decision was served on the applicant's counsel on 8 February 1994. 25. Section 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows: “(1) Anybody who, due to defamation, suffers real damage or loss of profit, may claim compensation. (2) The same applies if anyone is disseminating facts which jeopardise someone's reputation, income or livelihood, the untruth of which was known or must have been known to him. In this case there is also a right to claim a revocation and the publication thereof...” 26. After the Second World War, Austria introduced legislation penalising activities inspired by National Socialist ideas, i.e. the National Socialism Prohibition Act (Verbotsgesetz). In the State Treaty (Staatsvertrag) of 1955, Austria confirmed its undertaking to prohibit any such activities. 27. The applicant applied to the Commission on 7 July 1994. He alleged that the Supreme Court’s judgment of 14 December 1993 prohibiting him from repeating the reproach with “Nazi-journalism” constituted a violation of Article 10 of the Convention. 28. The Commission declared the application (no. 24773/94) admissible on 10 April 1997. In its report of 4 March 1998 (former Article 31 of the Convention), it expressed by a majority the opinion that there had been no violation of Article 10 of the Convention.