CASE OF PRAGER AND OBERSCHLICK v. AUSTRIA
Preliminary objection rejected (victim);No violation of Art. 10;Not necessary to examine Art. 14+10
C. Russo;R. Pekkanen
7. Mr Prager and Mr Oberschlick are journalists and live in Vienna. The latter is the publisher (Medieninhaber) of the periodical 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. 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." 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. 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." 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. 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. 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). 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 ...". 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.