OBERSCHLICK v. AUSTRIA (no. 2) (47/1996/666/852) 1 July 1997

OBERSCHLICK v. AUSTRIA (no. 2) (47/1996/666/852) 1 July 1997: Political discussion -- Applicant's article: could be considered polemical, but did not on that account constitute gratuitous personal attack as he had provided an objectively understandable explanation, derived from speech of politician

The judicial decisions challenged before the Court had to be considered in light of case as a whole, including article in question and circumstances in which it had been written - politician concerned clearly intended to be provocative and consequently to arouse strong reactions.

Applicant's article: could be considered polemical, but did not on that account constitute gratuitous personal attack as he had provided an objectively understandable explanation, derived from speech of politician concerned, for using term complained of - constituted part of political discussion provoked by that speech and amounted to an opinion.

Calling a politician a Trottel (idiot) in public might offend him - in instant case, however, word did not seem disproportionate to indignation knowingly aroused by politician concerned - article's polemical tone: protected by Article 10.

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 spirtitual 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 "PS.: 'Trottel' statt 'Nazi'" ("PS.: `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.

...

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 (idiot) 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.
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

24. Mr Oberschlick argued that the decisions in which he was held to be guilty of insult had infringed his right to freedom of expression as secured in Article 10 of the Convention, which provides:

"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 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."

25. His conviction by the Vienna Regional Court on 23 May 1991 (see paragraph 11 above), upheld by the Vienna Court of Appeal on 25 March 1992 (see paragraph 18 above), had indisputably amounted to an "interference" with the exercise of freedom of expression.

Those appearing before the Court also agreed that the interference was "prescribed by law" - Article 115 of the Criminal Code (see paragraph 19 above) - and its purpose was to protect "the reputation or rights of others", within the meaning of Article 10 § 2.

The oral argument dealt with the question whether the interference was "necessary in a democratic society" in order to achieve that end.

26. In the applicant's submission, the word Trottel had not been used by chance; it was the only word that could both draw public attention to how outrageous the arguments in Mr Haider's speech were and sum up the criticism of him in the article in issue. Both the words and the tone had been chosen to show Mr Haider and readers just how illogical, unreasonable and dangerous his words at the Ulrichsberg had been in that they were such as to deprive the speaker himself and most citizens of the right to freedom of opinion. That being so, it was in the public interest to warn people at large against the ideas of the person who was at that time Governor of the Land of Carinthia and was even regarded as a possible candidate for the position of Federal Chancellor. In sum, the word Trottel had been directed not against the speaker but against what he had said, as any average reader had been able to see.

27. The Commission accepted that the word in issue could be considered insulting but was of the view that in the circumstances of the case and regard being had in particular to the views expressed by Mr Haider, the applicant's conviction represented a disproportionate interference with the exercise of his freedom of expression.

28. The Government pointed out that the conviction in question related not to Mr Oberschlick's criticism of Mr Haider but merely to the use of the word Trottel. Far from being able to be regarded as the expression of an opinion, it was nothing but an insult used to denigrate and disparage an individual in public. That was not acceptable in a democratic society, even where the person being attacked had defended extreme opinions which were intended to provoke. In order to maintain a minimum level in political debate, certain basic rules had to be observed. Insults, denigrations and offensive language could not enjoy general, unlimited protection under the Convention as they made no positive contribution to the political development of society. They were more likely to poison the climate by prompting a desire for retaliation. In its own interests a democratic society could not tolerate such an escalation.

29. The Court reiterates that, subject to paragraph 2 of Article 10 of the Convention, freedom of expression is applicable not only to "information" and "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.

These principles are of particular importance with regard to the press. While it must not overstep the bounds set, inter alia, for "the protection of the reputation of others", its task is nevertheless to impart information and ideas on political issues and on other matters of general interest.

As to the limits of acceptable criticism, they are wider with regard to a politician acting in his public capacity than in relation to a private individual. A politician inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism. He is certainly entitled to have his reputation protected, even when he is not acting in his private capacity, but the requirements of that protection have to be weighed against the interests of open discussion of political issues, since exceptions to freedom of expression must be interpreted narrowly (see, in particular, the Oberschlick v. Austria (no. 1) judgment of 23 May 1991, Series A no. 204, pp.25-26, §§ 57-59, and the Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria judgment of 19 December 1994, Series A no. 302, p. 17, § 37).

30. The Court notes that Mr Oberschlick was convicted for having insulted Mr Haider by describing him as a Trottel in the title and in the main body of the article he published in Forum. The Regional Court considered that the word itself was insulting and that its mere use was enough to justify the conviction (see paragraph 12 above). The Vienna Court of Appeal took the view that the mere fact that the word in question also appeared in the title of the article made it insulting since readers who had read neither the article nor Mr Haider's speech and the comments on it would link the word not with what Mr Haider had said but with his own person (see paragraph 18 above).

31. The Court disagrees. It wishes to point out in this connection that the judicial decisions challenged before it must be considered in the light of the case as a whole, including the applicant's article and the circumstances in which it was written see the Oberschlick (no. 1) judgment cited above, p. 26, § 60).

The most important of these is Mr Haider's speech, which Mr Oberschlick was reporting on in his article. In claiming, firstly, that all the soldiers who had served in the Second World War, whatever side they had been on, had fought for peace and freedom and had contributed to founding and building today's democratic society and in suggesting, secondly, that only those who had risked their lives in that war were entitled to enjoy freedom of opinion, Mr Haider clearly intended to be provocative and consequently to arouse strong reactions.

32. As to Mr Oberschlick's article, it was published together with the speech in question and an article by a writer who was also reacting to what Mr Haider had said. In his article the applicant briefly explained, in some twenty lines, why Mr Haider's remarks had prompted him to describe him as a Trottel rather than as a Nazi - mainly because in his speech Mr Haider had excluded himself from enjoying any freedom of opinion.

33. In the Court's view, the applicant's article, and in particular the word Trottel, may certainly be considered polemical, but they did not on that account constitute a gratuitous personal attack as the author provided an objectively understandable explanation for them derived from Mr Haider's speech, which was itself provocative. As such they were part of the political discussion provoked by Mr Haider's speech and amount to an opinion, whose truth is not susceptible of proof. Such an opinion may, however, be excessive, in particular in the absence of any factual basis, but in the light of the above considerations that was not so in this instance (see, as the most recent authority, the De Haes and Gijsels v. Belgium judgment of 24 February 1997, Reports of Judgments and Decisions - 1997-.., p. ..., § 47).

34. It is true that calling a politician a Trottel in public may offend him. In the instant case, however, the word does not seem disproportionate to the indignation knowingly aroused by Mr Haider. As to the polemical tone of the article, which the Court should not be taken to approve, it must be remembered that Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see among other authorities, the Oberschlick (no. 1) judgment cited above, p. 15, § 57).

35. In conclusion, the Court considers that the necessity of the interference with the exercise of the applicant's freedom of expression has not been shown.

There has therefore been a breach of Article 10.

WORM v. AUSTRIA (83/1996/702/894) 29 August 1997: journalist's conviction for publishing an article considered capable of influencing outcome of criminal proceedings -- Applicant's conviction constituted interference with his right to freedom of expression.

II. ARTICLE 10 OF THE CONVENTION

Applicant's conviction constituted interference with his right to freedom of expression.

A. Whether interference was "prescribed by law"

Convictions for "prohibited influence on criminal proceedings" have legal basis in domestic law (s. 23 of Media Act) - application of that provision to applicant's case not beyond what could be reasonably foreseen in circumstances - impugned conviction was "prescribed by law".

Interference aimed at "maintaining the authority and impartiality of the judiciary" - Contracting States entitled to take account of considerations going to general protection of the fundamental role of courts in a democratic society - various reasons given for conviction fell within that aim - not necessary to examine separately whether interference aimed at protecting right to presumption of innocence.

Reasons given for conviction were "relevant" with regard to aim pursued.

Courts cannot operate in vacuum - there is room for discussion of subject-matter of criminal trials in specialised journals, in general press or amongst public at large - reporting, including comment, on court proceedings contributes to their publicity in consonance with Article 6 § 1 requirement that hearings be public - particularly where a public figure is involved - limits of acceptable comment wider as regards a politician than as regards private individuals - public figures nonetheless entitled to enjoyment of fair-trial guarantees on same basis as every other person.

Conviction at issue not directed against applicant's right to inform in an objective manner about public figure's trial but against unfavourable assessment of an element of evidence at the trial - applicant clearly stated opinion on accused's guilt - appeal court took into account impugned article in its entirety – article cannot be said to be incapable of warranting conclusion as to its potential for influencing outcome of trial.

It was primarily for appeal court to evaluate likelihood that article would be read by at least the lay judges and to ascertain applicant's criminal intent - appeal court entitled to punish applicant's attempt to usurp courts' role.

Interests of applicant and public in imparting and receiving ideas concerning matter of general concern not such as to outweigh considerations as to adverse consequences of diffusion of impugned article for the authority and impartiality of the judiciary in Austria - reasons adduced to justify interference also "sufficient".

Given amount of fine and fact that publishing firm was made jointly and severally liable for payment, sanction not disproportionate to aim.

Applicant's conviction and sentence "necessary in a democratic society".

36. It was uncontested that the applicant's conviction constituted an interference with his right to freedom of expression as guaranteed by paragraph 1 of Article 10 and the Court sees no reason to hold otherwise. It must therefore be examined whether the interference was justified under the second paragraph of that provision.

37. It was common ground that convictions for "prohibited influence on criminal proceedings" have a legal basis in domestic law, namely section 23 of the Media Act (see paragraph 23 above).

The applicant maintained, however, that the facts in his case did not fall within the ambit of that provision and that the Vienna Court of Appeal had erred in its finding that his article was calculated to influence the criminal proceedings against Mr Androsch.

38. The Court reiterates that the relevant national law must be formulated with sufficient precision to enable the persons concerned - if need be with appropriate legal advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. It is primarily for the national authorities, notably the courts, to interpret and apply domestic legislation (see, inter alia, the Chorherr v. Austria judgment of 25 August 1993, Series A no. 266-B, pp. 35-36, §§ 24-25). In the present case, the Court is satisfied that the Vienna Court of Appeal's application of section 23 of the Media Act to the applicant's case did not go beyond what could be reasonably foreseen in the circumstances.

Accordingly, the Court concludes that the impugned conviction was "prescribed by law".

B. Whether the interference pursued a legitimate aim

39. In the present case it was not contested that the applicant's conviction was aimed at "maintaining the authority and impartiality of the judiciary" and that it thus pursued a legitimate aim under the Convention.

40. In this regard, the Court has consistently held that the expression "authority and impartiality of the judiciary" has to be understood "within the meaning of the Convention". For this purpose, account must be taken of the central position occupied in this context by Article 6 which reflects the fundamental principle of the rule of law (see, inter alia, the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, p. 34, § 55).

The phrase "authority of the judiciary" includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the settlement of legal disputes and for the determination of a person's guilt or innocence on a criminal charge; further, that the public at large have respect for and confidence in the courts' capacity to fulfil that function (ibid., mutatis mutandis).

"Impartiality" normally denotes lack of prejudice or bias (see the Piersack v. Belgium judgment of 1 October 1982, Series A no. 53, p. 14, § 30). However, the Court has repeatedly held that what is at stake in maintaining the impartiality of the judiciary is the confidence which the courts in a democratic society must inspire in the accused, as far as criminal proceedings are concerned, and also in the public at large (see, mutatis mutandis, among many other authorities the Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, § 30).

It follows that, in seeking to maintain the "authority and impartiality of the judiciary", the Contracting States are entitled to take account of considerations going - beyond the concrete case - to the protection of the fundamental role of courts in a democratic society.

41. In view of the above, the various reasons contained in the judgment of the Vienna Court of Appeal of 19 October 1992 (see paragraphs 17 to 22 above) are to be regarded as falling within the aim of "maintaining the authority and impartiality of the judiciary".

42. The Government submitted that the applicant's conviction also pursued the aim of protecting Mr Androsch's right to the presumption of innocence. Having regard to its analysis in the preceding paragraphs, the Court does not find it necessary to address this question separately.

43. The applicant asserted that his right to freedom of expression had been restricted beyond the limits imposed by the second paragraph of Article 10 of the Convention. He submitted that since the subject matter of his report was the trial of a former Minister of Finance for tax offences committed when in office, indisputably an issue of public concern, the limits of permissible criticism should be wider. As to the risk of influencing the outcome of Mr Androsch's trial, he pointed out that the passage where the latter's responsibility for tax evasion was alluded to referred to activities for which Mr Androsch had already been convicted and which were well-known to the court.

44. The Commission expressed the opinion that the Vienna Court of Appeal did not weigh the public interest in preventing undue influence of the media on pending criminal proceedings, against the public interest in receiving information relating to the conduct of a former Minister of Finance facing charges of tax evasion. When examining whether the incriminated text was likely to influence the outcome of the proceedings, the appeal court, unlike the first-instance court, had not taken the wording and the content of the two-page article as a whole into account. Having regard to its specific context, the conclusion suggested by the applicant in one passage, namely that Mr Androsch was evading taxes, appeared as merely describing a state of suspicion, which the members of the trial court, including the lay judges, were in a position to evaluate independently. The Commission further observed that the appellate court should have dealt with the applicant's defence that the incriminated passage merely paraphrased a statement the public prosecutor had made at the trial.

The Commission accordingly concluded that the reasons adduced by the Court of Appeal were not sufficient for the purposes of Article 10 § 2. The interference with the applicant's right to freedom of expression could thus not be said to have been "necessary in a democratic society" for maintaining the "authority and impartiality of the judiciary".

45. At the hearing, the Delegate of the Commission submitted that the question of necessity under Article 10 § 2 would have required that the domestic courts ascertain whether any real influence had indeed been exerted on the lay judges.

46. For the Government, the applicant's conduct went beyond the limits of permissible reporting on a pending trial. Even if the entire content of the article were to be taken into account, there was no question that the incriminated statement amounted to a typical predetermination by the media of an accused's guilt. If the statement at issue was indeed a quotation of the public prosecutor, the applicant would have had to indicate it, which he did not.

They further pointed out that although lay judges are likely to read press reports on the cases they try, Austrian law, unlike other legal systems, does not seek to insulate them from exposure to outside influence while they are exercising their functions. There was therefore a high probability that the opinion of Mr Worm, leading expert of the "Causa Androsch", would exert influence on those judges, thereby jeopardising the impartiality of the court.

The Government finally submitted that the fine imposed on the applicant was not disproportionate to the aim pursued.

47. The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance (see, among other authorities, the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 23, § 31).

As a matter of general principle, the "necessity" for any restriction on freedom of expression must be convincingly established (see the Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, pp. 28-29, § 50). Admittedly, it is in the first place for the national authorities to assess whether there is a "pressing social need" for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In the present context, however, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued.

The Court's task, in exercising its supervisory function, is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In so doing, the Court must 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" (see, among many other authorities, the Goodwin v. the United Kingdom judgment of 27 March 1996, Reports of Judgments and Decisions 1996-II, pp. 500-501, § 40).

48. In the instant case, the Vienna Court of Appeal, after carefully examining the character of the incriminated article, concluded that it was objectively capable of influencing the outcome of the proceedings. The Court of Appeal also dealt with the question of the applicant's intent in publishing the article, in particular saying that it could be inferred from the article that he wished to usurp the position of the judges dealing with the case (see paragraphs 16-21 above).

The reasons given by the Court of Appeal were therefore "relevant" with regard to the aim pursued. It remains to be ascertained whether they were also "sufficient" for that same purpose.

49. In assessing this question, the Court recalls that the domestic margin of appreciation is not identical as regards each of the aims listed in Article 10 § 2. With respect to the notion of the "authority and impartiality of the judiciary", the Court has already noted its objective character and the fact that, in this area, the domestic law and practice of the member States of the Council of Europe reveal a fairly substantial measure of common ground (see, mutatis mutandis, the Sunday Times (no. 1) judgment, cited above, p. 36, § 59). This does not mean that absolute uniformity is required and, indeed, since the Contracting States remain free to choose the measures which they consider appropriate, the Court cannot be oblivious of the substantive or procedural features of their respective domestic laws (ibid., pp. 37-38, § 61). It cannot thus hold that the applicant's conviction was contrary to Article 10 of the Convention simply because it might not have been obtained under a different legal system.

50. Restrictions on freedom of expression permitted by the second paragraph of Article 10 "for maintaining the authority and impartiality of the judiciary" do not entitle States to restrict all forms of public discussion on matters pending before the courts.

There is general recognition of the fact that the courts cannot operate in a vacuum. Whilst the courts are the forum for the determination of a person's guilt or innocence on a criminal charge (see paragraph 40 above), this does not mean that there can be no prior or contemporaneous discussion of the subject matter of criminal trials elsewhere, be it in specialised journals, in the general press or amongst the public at large (see, mutatis mutandis, the Sunday Times (no. 1) judgment, cited above, p. 40, § 65).

Provided that it does not overstep the bounds imposed in the interests of the proper administration of justice, reporting, including comment, on court proceedings contributes to their publicity and is thus perfectly consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them (ibid.). This is all the more so where a public figure is involved, such as, in the present case, a former member of the Government. Such persons inevitably and knowingly lay themselves open to close scrutiny by both journalists and the public at large (see, among other authorities, the Lingens v. Austria judgment of 8 July 1986, Series A no 103, p. 26, § 42). Accordingly, the limits of acceptable comment are wider as regards a politician as such than as regards a private individual (ibid.).

However, public figures are entitled to the enjoyment of the guarantees of a fair trial set out in Article 6, which in criminal proceedings include the right to an impartial tribunal, on the same basis as every other person. This must be borne in mind by journalists when commenting on pending criminal proceedings since the limits of permissible comment may not extend to statements which are likely to prejudice, whether intentionally or not, the chances of a person receiving a fair trial or to undermine the confidence of the public in the role of the courts in the administration of criminal justice.

51. The applicant was convicted of having attempted to exert prohibited influence on the outcome of the criminal proceedings concerning Mr Androsch. He was sentenced to a fine of ATS 48,000, or twenty days' imprisonment in case of default of payment (see paragraph 15 above).

As summarised above (see paragraphs 17-22) the Vienna Court of Appeal first considered whether the impugned article was objectively capable of influencing the outcome of the proceedings pending at the material time before the Vienna Regional Criminal Court.

It found that the applicant had commented unfavourably on the answers given by Mr Androsch at the trial and not merely carried out a critical psychological analysis, as held by the first-instance court. The court further considered that it could not be excluded that the members of Mr Androsch's trial court, more particularly, the lay judges might read the article. It concluded that the applicant's article fell within the ambit of section 23 of the Media Act.

The appellate court held that Mr Worm's long-standing involvement in the "Causa Androsch" - he had been researching into the case since 1978 and had written more than a hundred articles about it - reinforced the impression gained from the wording of the article that he had written it with the intention of influencing the outcome of the proceedings. From the beginning, the applicant had been convinced that Mr Androsch had committed tax evasion and had stated so. In his article, he had not only criticised Mr Androsch; he had deliberately attempted to lead the reader to conclude that Mr Androsch was guilty of the charges against him and had predicted his conviction.

52. The Court of Appeal's judgment was not directed to restricting the applicant's right to inform the public in an objective manner about the development of Mr Androsch's trial. Its criticism went essentially to the unfavourable assessment the applicant had made of the former minister's replies at trial, an element of evidence for the purposes of section 23 of the Media Act. The Court does not share the Commission's view that the passage where it is implied that Mr Androsch was evading taxes merely described a state of suspicion. In particular, the words "permits no other interpretation than that Androsch was evading taxes" point rather to a clearly stated opinion that Mr Androsch was guilty of the charges against him. This view was, moreover, formulated in such absolute terms that the impression was conveyed to the reader that a criminal court could not possibly do otherwise than convict Mr Androsch.

53. The Court considers that it transpires from the Court of Appeal's judgment that it did take into account the incriminated article in its entirety. Further, the content of the article cannot be said to be incapable of warranting the conclusion arrived at by the Vienna Court of Appeal as to the article's potential for influencing the outcome of Mr Androsch's trial.

54. Having regard to the State's margin of appreciation, it was also in principle for the appellate court to evaluate the likelihood that at least the lay judges would read the article as it was to ascertain the applicant's criminal intent in publishing it. As to the latter point, the Court of Appeal pointed out that "it can be inferred from the article that [the applicant] wished to usurp the position of the judges dealing with the case" (see paragraph 20 above). In this respect, to paraphrase the Court's words in its judgment in the Sunday Times v. the United Kingdom (no. 1) case (cited above), it cannot be excluded that the public's becoming accustomed to the regular spectacle of pseudo-trials in the news media might in the long run have nefarious consequences for the acceptance of the courts as the proper forum for the determination of a person's guilt or innocence on a criminal charge (p. 39, § 63). For this reason, the fact that domestic law as interpreted by the Vienna Court of Appeal did not require an actual result of influence on the particular proceedings to be proved (see paragraph 18 above) does not detract from the justification for the interference on the ground of protecting the authority of the judiciary.

55. The above findings are not called into question by the assertion - disregarded by the appellate court - that the incriminated passage was a quotation of a statement made by the public prosecutor at trial. In the first place, even assuming that the public prosecutor actually made such remarks, the applicant ought to have indicated that he was merely quoting them. In any event, it was the public prosecutor's role, and not that of the applicant, to establish Mr Androsch's guilt.

56. Against this background, the Court concludes that the reasons adduced by the Vienna Court of Appeal to justify the interference with the applicant's right to freedom of expression resulting from his conviction were also "sufficient" for the purposes of Article 10 § 2. In particular, the respective interests of the applicant and the public in imparting and receiving his ideas concerning a matter of general concern which was before the courts were not such as to outweigh the considerations relied on by the Vienna Court of Appeal as to the adverse consequences of the diffusion of the impugned article for the authority and impartiality of the judiciary in Austria.

57. Given the amount of the fine and the fact that the publishing firm was ordered to be jointly and severally liable for payment of it (see paragraph 15 above), the sanction imposed cannot be regarded as disproportionate to the legitimate aim pursued.

58. The Court accordingly finds that the national courts were entitled to consider that the applicant's conviction and sentence were "necessary in a democratic society" for maintaining both the authority and the impartiality of the judiciary within the meaning of Article 10 § 2 of the Convention.

59. In sum, there has been no violation of Article 10 of the Convention.

BOWMAN v. THE UNITED KINGDOM (141/1996/762/959) 19 February 1998: prosecution following distribution of leaflets by abortion campaigner prior to general election -- margin of appreciation in striking balance between rights to free elections and freedom of expression –legitimate aim.

I. GOVERNMENT’S PRELIMINARY OBJECTION (applicant’s status as "victim")

Prosecution brought against applicant - indication to her that she ran risk of being prosecuted again in future unless she modified her conduct - in these circumstances she could claim to have been directly affected by law and therefore to be "victim" within meaning of Article 25 § 1 of the Convention.

Conclusion: rejected (unanimously).

II. ARTICLE 10 OF THE CONVENTION

Prohibition in section 75 of 1983 Act of expenditure in excess of GBP 5 by unauthorised persons on publications etc. during election period amounted to restriction on freedom of expression.

Restriction was "prescribed by law".

Protection of rights of others, namely candidates for election and electorate.

States have margin of appreciation in striking balance between rights to free elections and freedom of expression.

Section 75 of 1983 Act operated for all practical purposes as total barrier to applicant’s publishing information with a view to influencing voters in favour of anti-abortion candidate - not necessary to set limit on expenditure as low as GBP 5 to achieve aim of securing equality between candidates - restriction disproportionate.

Conclusion: violation (fourteen votes to six).
I. THE CIRCUMSTANCES OF THE CASE

10. Mrs Phyllis Bowman was born in 1926 and lives in London. She is the executive director of the Society for the Protection of the Unborn Child ("SPUC"), an organisation of approximately 50,000 members which is opposed to abortion and human embryo experimentation and seeks changes to the present United Kingdom law which permits abortion up to 22 weeks and embryo experimentation up to 14 days.

11. The major political parties have no policies with regard to abortion and embryo experimentation: these are regarded as moral issues and members of Parliament are allowed to vote on proposed legislation according to their consciences. Mrs Bowman and SPUC therefore took the view that, if electors were to be in a position to bring about changes to the law through their choice of representative, it was important for them to be informed of the opinions of candidates standing for election with regard to abortion and related issues.

12. In the period immediately before the Parliamentary elections in April 1992, Mrs Bowman therefore arranged to have some one and a half million leaflets distributed in constituencies throughout the United Kingdom, including, in the constituency of Halifax, 25,000 copies of a leaflet which read as follows:

"We are not telling you how to vote, but it is essential for you to check on Candidates’ voting intentions on abortion and on the use of the human embryo as a guinea-pig…

13. Mrs Bowman was charged with an offence under subsections 75(1) and (5) of the Representation of the People Act 1983 ("the 1983 Act"), which prohibits expenditure of more than five pounds sterling ("GBP") by an unauthorised person during the period before an election on conveying information to electors with a view to promoting or procuring the election of a candidate (see paragraphs 19-21 below).

14. At Mrs Bowman’s trial at Southwark Crown Court on 27 September 1993, the judge directed her acquittal, because the summons charging her with the offence had not been issued within one year of the alleged prohibited expenditure, in accordance with the time-limit stipulated in section 176 of the 1983 Act. The proceedings were, nonetheless, reported in the press.

15. In 1979, Mrs Bowman had been convicted of an offence under section 75 of the 1983 Act in respect of a leaflet distributed prior to the Ilford North by-election and in 1982 she had also been convicted in respect of a leaflet distributed during the elections for the European Parliament. On both occasions she was ordered to pay a fine and the prosecution costs

31. The Government submitted that there had been no restriction of Mrs Bowman’s right to freedom of expression, since section 75 of the 1983 Act restricted only the freedom of unauthorised persons to incur expenditure with a view to promoting or procuring the election of a particular candidate in a parliamentary election, but not their freedom to express opinions or disseminate information more generally (see paragraph 19 above).

32. The Commission, like the applicant, observed that the fact that the prosecuting authorities obviously regarded her conduct as falling within the statutory prohibition caused, through the fear of prosecution, a restriction on her freedom of expression.

33. The Court notes that section 75 of the 1983 Act does not directly restrain freedom of expression, but instead limits to GBP 5 the amount of money which unauthorised persons are permitted to spend on publications and other means of communication during the election period. Moreover, it does not restrict expenditure on the transmission of information or opinions in general, but only that incurred during the relevant period "with a view to promoting or procuring the election of a candidate".

Nonetheless, there can be no doubt that the prohibition contained in section 75 amounted to a restriction on freedom of expression, which directly affected Mrs Bowman (see paragraph 29 above).

34. It remains to be considered whether this restriction was "prescribed by law", pursued a legitimate aim and was "necessary in a democratic society".

35. The Court considers, and indeed this was not disputed before it, that the restriction on expenditure provided for by section 75 of the 1983 Act was "prescribed by law".

36. The Government maintained that the spending limit in section 75 of the 1983 Act pursued the aim of protecting the rights of others in three ways. First, it promoted fairness between competing candidates for election by preventing wealthy third parties from campaigning for or against a particular candidate or issuing material which necessitated the devotion of part of a candidate’s election budget, which was limited by law (see paragraph 18 above), to a response. Secondly, the restriction on third-party expenditure helped to ensure that candidates remained independent of the influence of powerful interest groups. Thirdly, it prevented the political debate at election times from being distorted by having the discussion shifted away from matters of general concern to centre on single issues.

37. In the applicant’s view, section 75, far from pursuing a legitimate aim, only operated to curtail democratic freedom of expression. It was improbable in the extreme that single issue groups, such as SPUC, could distract voters from the mainstream political platforms to such a degree as to hinder the electoral process. Furthermore, the restriction on expenditure could not properly be said to ensure equality between candidates, because they were already subject to inequalities depending on whether or not they received the support of one of the major political parties, which were free to spend unlimited amounts on campaigning at national level as long as they did not attempt to promote or prejudice any particular candidate (see paragraph 22 above).

38. The Court finds it clear that the purpose of section 75, particularly taken in the context of the other detailed provisions on election expenditure in the 1983 Act, is to contribute towards securing equality between candidates. It therefore concludes, as did the Commission, that the application of this law to Mrs Bowman pursued the legitimate aim of protecting the rights of others, namely the candidates for election and the electorate in Halifax and, to the extent that the prosecution was intended to have a deterrent effect, elsewhere in the United Kingdom.

It considers that the arguments advanced by the applicant on this point are of greater relevance to the issue whether the restriction was "necessary in a democratic society", to which question it now turns.

D. "Necessary in a democratic society"

39. The Government maintained that section 75 of the 1983 Act imposed only a partial restriction on expenditure (see paragraph 31 above), which was no more extensive than was necessary to achieve the legitimate aims pursued. They pointed out that there had been other means of communication open to Mrs Bowman, for example, she could have started her own newspaper, had letters or articles published in the press, given interviews on radio or television, stood for election herself or published leaflets with the purpose of informing the electorate without promoting or opposing any particular candidate.

40. The applicant, as did the Commission, considered that the restriction was disproportionate. She contended that there was no pressing social need to suppress the dissemination of factually accurate information about the position of candidates for public office on important moral issues; on the contrary, there was a pressing need to permit such matters to be put on the political agenda prior to elections. Despite the Government’s submission that the restriction was necessary to ensure equality between candidates, there was no indication that Mrs Bowman’s leaflets had operated to disadvantage any particular candidate, since it was possible that the information they contained attracted as many supporters as opponents of the different policies on abortion. Furthermore, she asserted that the restriction was illogical since no limit was placed on the powers of the mass media to publish material in support of or opposition to candidates or on the political parties and their supporters to pay for advertising at national or regional levels as long as they did not attempt to promote or prejudice the electoral prospects of any particular candidate.

41. The Court observes, in the first place, that the limitation on expenditure prescribed by section 75 of the 1983 Act is only one of the many detailed checks and balances which make up United Kingdom electoral law. In such a context, it is necessary to consider the right to freedom of expression under Article 10 in the light of the right to free elections protected by Article 3 of the First Protocol to the Convention, which provides:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

42. Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system (see the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 22, § 47 and the Lingens v. Austria judgment of 8 July 1986, Series A no. 103-B, p. 26, §§ 41-42). The two rights are inter-related and operate to reinforce each other: for example, as the Court has observed in the past, freedom of expression is one of the "conditions" necessary to "ensure the free expression of the opinion of the people in the choice of the legislature" (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 24, § 54). For this reason, it is particularly important in the period preceding an election that opinions and information of all kinds are permitted to circulate freely.

43. Nonetheless, in certain circumstances the two rights may come into conflict and it may be considered necessary, in the period preceding or during an election, to place certain restrictions, of a type which would not usually be acceptable, on freedom of expression, in order to secure the "free expression of the opinion of the people in the choice of the legislature". The Court recognises that, in striking the balance between these two rights, the Contracting States have a margin of appreciation, as they do generally with regard to the organisation of their electoral systems (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, pp. 23 and 24, §§ 52 and 54).

44. Turning to the facts of the present case, the Court’s task is to determine whether, in all the circumstances, the restriction on Mrs Bowman’s freedom of expression was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities in justification of it were relevant and sufficient (see the above-mentioned Lingens judgment, p. 26, § 40).

45. In this connection it finds it significant that the limitation on expenditure contained in section 75 of the 1983 Act was set as low as GBP 5. It recalls that this restriction applied only during the four to six weeks preceding the general election (see paragraphs 16 and 18-19 above). However, although it is true that Mrs Bowman could have campaigned freely at any other time, this would not, in the Court’s view, have served her purpose in publishing the leaflets which was, at the very least, to inform the people of Halifax about the three candidates’ voting records and attitudes on abortion, during the critical period when their minds were focussed on their choice of representative (see paragraph 11 above).

46. The Court notes the Government’s submission that the applicant could have made use of alternative methods to convey the information to the electorate. However, it is not satisfied that, in practice, she had access to any other effective channels of communication. For example, it has not been demonstrated that she had any way of ensuring that the material contained in the leaflets was published in a newspaper or broadcast on radio or television. Although she could herself have stood for election and thus become entitled to incur the statutory amount of expenses allowed to candidates, this would have required her to pay a deposit of GBP 500, which she would in all probability have forfeited (see paragraphs 17 and 18 above). Furthermore, it was not her desire to be elected to Parliament, but only to distribute leaflets to voters.

47. In summary, therefore, the Court finds that section 75 of the 1983 Act operated, for all practical purposes, as a total barrier to Mrs Bowman’s publishing information with a view to influencing the voters of Halifax in favour of an anti-abortion candidate. It is not satisfied that it was necessary thus to limit her expenditure to GBP 5 in order to achieve the legitimate aim of securing equality between candidates, particularly in view of the fact that there were no restrictions placed upon the freedom of the press to support or oppose the election of any particular candidate or upon political parties and their supporters to advertise at national or regional level, provided that such advertisements were not intended to promote or prejudice the electoral prospects of any particular candidate in any particular constituency (see paragraph 22 above). It accordingly concludes that the restriction in question was disproportionate to the aim pursued.

It follows that there has been a violation of Article 10 of the Convention.

SCHÖPFER v. SWITZERLAND (56/1997/840/1046) 20 May 1998: disciplinary penalty imposed on lawyer following criticisms of the judiciary made at a press conference -- proper administration of justice-- balance to be struck between various interests involved, which include public’s right to receive information, requirements of proper administration of justice and dignity of legal profession.

ARTICLE 10 OF THE CONVENTION

Special status of lawyers gives them central position in administration of justice as intermediaries between public and courts - legitimate to expect them to contribute to proper administration of justice, and thus to maintain public confidence therein.

Applicant first publicly criticised administration of justice in Hochdorf and then exercised a legal remedy which proved effective - conduct scarcely compatible with contribution it is legitimate to expect lawyers to make to maintaining public confidence in judicial authorities.

Freedom of expression secured to lawyers too, who are entitled to comment in public on administration of justice, but their criticism must not overstep certain bounds - balance to be struck between various interests involved, which include public’s right to receive information about questions arising from judicial decisions, requirements of proper administration of justice and dignity of legal profession.

General nature, seriousness and tone of complaints raised in public – applicant was lawyer – criminal proceedings still pending – competent authorities not first applied to via legal channels - modest amount of fine - margin of appreciation not exceeeded.

6. The applicant, who is a lawyer and former member of the Cantonal Council (Großrat), lives in Root (Canton of Lucerne). At the material time he was an advocate acting as defence counsel for a Mr S, who had been placed in detention pending trial (Untersuchungshaft) on suspicion of committing a number of thefts.

7. On 6 November 1992 Mr S’s wife informed Mr Schöpfer that the two district clerks (Amtsschreiber) of the Hochdorf district authority (Amtsstatthalteramt) had urged her to instruct a different lawyer to defend her husband if he wished to be released.

A. The applicant’s public statements

On 9 November 1992 the applicant then held a press conference in his office in Lucerne at which he declared that at the Hochdorf district authority offices both the laws of the Canton of Lucerne and human rights were flagrantly disregarded, and had been for years .He pointed out that he was speaking to the press because it was his last resort.

14. On 16 November 1992 the Lucerne Bar’s Supervisory Board (Aufsichtsbehörde über die Rechtsanwälte) informed Mr Schöpfer that his conduct raised certain ethical questions, relating in particular to the need for discretion (Zurückhaltung) with regard to pending proceedings and to covert publicity, and asked him what he had to say on the matter.

In a letter of 18 November which he communicated to the press, the applicant replied that he had acted only in the general interest and in that of his client.

15. On 16 November 1992 the Hochdorf prefect had lodged a complaint (Anzeige) with the Supervisory Board and asked for disciplinary proceedings to be brought against Mr Schöpfer. He asserted that by his statements the latter had not only slandered the prefect and his two district clerks but had also been guilty of a serious breach of lawyers’ professional ethics (Standesregeln) by spreading false accusations through the media rather than making use of the available legal remedies.

16. On 21 December 1992 the Supervisory Board brought disciplinary proceedings against the applicant.

On 15 March 1993, pursuant to Article 13 of the Statute of the Bar (Anwaltsgesetz) of the Canton of Lucerne (see paragraph 18 below), it fined him CHF 500 for a breach of professional ethics (Verletzung von Berufs- und Standespflichten).

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

23. Mr Schöpfer alleged that the penalty imposed on him by the Lawyers’ Supervisory Board had breached Article 10 of the Convention.

24. The penalty in issue incontestably amounted to "interference" with the applicant’s exercise of his freedom of expression. The participants in the proceedings agreed that it was "prescribed by law" and pursued a legitimate aim for the purposes of Article 10 § 2, namely maintaining the authority and impartiality of the judiciary. It is apparent from the Supervisory Board’s decision of 15 March 1993 that the penalty in question was imposed on the applicant because, inter alia, he had disparaged all the canton’s judicial authorities (see paragraph 16 above)

The Court, which agrees with the participants on this point, must now determine, therefore, whether the interference was "necessary in a democratic society" in order to achieve that aim.

29. The Court reiterates that the special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. Such a position explains the usual restrictions on the conduct of members of the Bar (see the Casado Coca v. Spain judgment of 24 February 1994, Series A no. 285-A, p. 21, § 54).

Moreover, the Court has already held that the courts - the guarantors of justice, whose role is fundamental in a State based on the rule of law - must enjoy public confidence (see the De Haes and Gijsels v. Belgium judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, p. 234, § 37). Regard being had to the key role of lawyers in this field, it is legitimate to expect them to contribute to the proper administration of justice, and thus to maintain public confidence therein.

30. In the present case Mr Schöpfer held his press conference on 9 November 1992, stating on that occasion, inter alia, that the journalists were his last resort (see paragraph 8 above). On 18 November 1992 he appealed to the Lucerne Court of Appeal against the Hochdorf prefect’s refusal of the application for his client’s release. The Court of Appeal dismissed the appeal for lack of standing, but upheld the complaint that bringing Mr Schöpfer’s client before one of the district clerks had been unlawful. It accordingly ordered its decision to be brought to the attention of the Public Prosecutor’s Office, as the prefect’s supervisory authority (see paragraph 13 above).

31. Thus Mr Schöpfer first publicly criticised the administration of justice in Hochdorf and then exercised a legal remedy which proved effective with regard to the complaint in question. In so doing his conduct was scarcely compatible with the contribution it is legitimate to expect lawyers to make to maintaining public confidence in the judicial authorities.

32. The above finding is reinforced by the seriousness and general nature of the criticisms made by the applicant and the tone in which he chose to make them. For example, he said at the press conference that he was speaking to the journalists because they were his last resort and because at the Hochdorf district authority offices the laws of the Canton of Lucerne and human rights had for years been flagrantly disregarded (see paragraph 8 above). On 13 November 1992 a daily newspaper published a summary of a press release in which Mr Schöpfer had stated that his client’s arrest had breached the Convention and – "in a crude and unacceptable manner" – the cantonal Code of Criminal Procedure" (see paragraph 12 above).

33. It is true that Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see the De Haes and Gijsels judgment, cited above, p. 236, § 48). It also goes without saying that freedom of expression is secured to lawyers too, who are certainly entitled to comment in public on the administration of justice, but their criticism must not overstep certain bounds. In that connection, account must be taken of the need to strike the right balance between the various interests involved, which include the public’s right to receive information about questions arising from judicial decisions, the requirements of the proper administration of justice and the dignity of the legal profession (see the Casado Coca judgment, cited above, p. 21, § 55, and the De Haes and Gijsels judgment, cited above, pp. 233-34, § 37). Because of their direct, continuous contact with their members, the Bar authorities and a country’s courts are in a better position than an international court to determine how, at a given time, the right balance can be struck. That is why they have a certain margin of appreciation in assessing the necessity of an interference in this area, but this margin is subject to European supervision as regards both the relevant rules and the decisions applying them (see the Casado Coca judgment, cited above, pp. 20-21, §§ 50 and 55).

34. The Court notes that Mr Schöpfer – who was a lawyer – had raised in public his complaints on the subject of criminal proceedings which were at that time pending before a criminal court. In addition to the general nature, the seriousness and the tone of the applicant’s assertions, the Court notes that he first held a press conference, claiming that this was his last resort, and only afterwards lodged an appeal before the Lucerne Court of Appeal, which was partly successful. He also omitted to apply to the other supervisory body for the district authority, the Public Prosecutor’s Office, whose ineffectiveness he did not attempt to establish except by means of mere assertions. Having regard also to the modest amount of the fine imposed on the applicant, the Court considers that the authorities did not go beyond their margin of appreciation in punishing Mr Schöpfer. There has accordingly been no breach of Article 10.