AS TO THE ADMISSIBILITY OF

                      Application No. 11662/85
                      by Gerhard OBERSCHLICK
                      against Austria


        The European Commission of Human Rights sitting in private
on 10 May 1989, the following members being present:

              MM. J.A. FROWEIN, Acting President
                  S. TRECHSEL
                  G. SPERDUTI
                  G. JÖRUNDSSON
                  A. WEITZEL
                  J.-C. SOYER
                  H.G. SCHERMERS
                  H. DANELIUS
                  G. BATLINER
             Sir  Basil HALL
             MM.  F. MARTINEZ
                  C.L. ROZAKIS
             Mrs.  J. LIDDY
             Mr.  L. LOUCAIDES

             Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 16 June 1985
by Gerhard Oberschlick against Austria and registered on
29 July 1985 under file No. 11662/85;

        Having regard to the respondent Government's observations of
23 February 1988 and the applicant's reply of 21 April 1988;

        Having deliberated on 6 and 10 May 1989;

        Decides as follows:

THE FACTS

        The facts agreed between the parties may be summarised as
follows.

        The applicant is an Austrian citizen, born in 1942 and
resident in Vienna.  Before the Commission he is represented by
Mr.  R.K. Fiebinger, a lawyer practising in Vienna.

        The applicant, who is a journalist, complains of defamation
proceedings taken against him in 1983 by Mr.  G.M., at that time
Secretary-General of the Austrian Liberal Party (FPÖ).

        In a television programme Mr.  G.M. had suggested that the
family allowances for Austrian women be raised by 50% in order to
prevent abortions based on financial reasons.  At the same time it was
proposed that the family allowances paid by the Austrian State to
immigrant mothers be cut by 50%.

        As a reaction to these statements the applicant and several
other persons laid a criminal information (Strafanzeige) on 20 April 1983
against Mr.  G.M. for suspicion of

        - incitement to hatred (Verhetzung, Section 283 of the
          Penal Code (Strafgesetzbuch)),

        - instigation and approval of criminal offences (Aufforderung
          zu mit Strafe bedrohten Handlungen und Gutheissung mit
          Strafe bedrohter Handlungen, Section 282 of the Penal Code),
          and

        - activities contrary to Sections 3 and 3 (d) of the National
          Socialism Prohibition Act (Verbotsgesetz).

        In the reasons it was argued that Mr.  G.M.'s public statement
was tantamount to instigating hatred or contempt against foreign
workers in Austria, and also inviting Parliament and the Government to
engage in activities banned by the National Socialism Prohibition
Act.  His proposals corresponded to National Socialist ideology as laid
down in the Party Programme of 1920.  This showed that he had acted in
line with National Socialist thinking.

        On the same day, 20 April 1983, the full text of the criminal
information was published in the periodical "FORUM" under the headline
"Criminal information against G.M.".  On the cover page of the
relevant issue of "FORUM" a hint was made to this publication by a
line in bold print:  "Criminal information against Liberal Party
Secretary" ("Strafanzeige gegen FPÖ-Generalsekretär").

        On 22 April 1983, Mr.  G.M. brought a private prosecution
against the applicant and the other signatories of the criminal
information for defamation (üble Nachrede, Section 111 of the
Penal Code).  Subsection (1) of this provision makes it a criminal
offence to state before others that a person has contemptible features
or attitudes, or to accuse him of dishonest behaviour or of behaviour
contrary to good morals which is liable to scorn, or to degrade him
in public opinion.  By virtue of subsection (2) the offence is
aggravated if it is committed in print or broadcast or otherwise in
such a manner that the defamation becomes accessible to a broad
public.  A person will not be punished if it is shown that the

allegation made is true, but in the cases coming only under subsection
(1) it is sufficient to prove that the circumstances were such as
to give the person making the allegation sufficient grounds to
believe that the statement was true (subsection (3)).  According to
Section 112 the burden of proof is on the defendant party.

        Mr.  G.M. also requested the immediate seizure of the relevant
issue of "FORUM" under Sections 33 and 36 of the Media Act, and the
adjudication of compensation to be paid to him by the owners of
"FORUM", according to Section 6 of the Media Act.

        The case was considered the same day, 22 April 1983, by the
Review Chamber (Ratskammer) of the Regional Criminal Court
(Landesgericht für Strafsachen) of Vienna.  It found that the publication
did not constitute the criminal offence under Section 111 of the Penal
Code.  The case did not concern the wrong attribution of a certain
(dishonest) behaviour, but only value judgments (Bewertung) on a
behaviour which as such had been correctly described.  Accordingly the
proceedings were discontinued under Section 485 para. 1 (4) of the
Code of Criminal Procedure (Strafprozessordnung).

        On 31 May 1983 the Vienna Court of Appeal (Oberlandesgericht)
quashed the above decision on the appeal (Beschwerde) of Mr.  G.M.  It
held that for the average reader the publication must have created the
impression that a contemptible attitude (verächtliche Gesinnung) was
ascribed to the latter.  The authors had disregarded the standard of
fair journalism by going beyond a comparative and critical analysis of
Mr.  G.M.'s statement and insinuating motives to him which he had not
himself expressed, in particular by alleging that he had been guided
by National Socialist attitudes.  Accordingly the case was referred
back to the Regional Court.

        On 1 June 1983 the public prosecutor's office in Vienna
decided that there were not sufficient reasons to prosecute Mr.  G.M.
on the basis of criminal information laid against him by the applicant
and others (Zurücklegung der Strafanzeige).

        At a hearing on 20 July 1983 the Regional Court decided to
sever the defamation proceedings against the applicant's co-accused
because, although they had signed the criminal information against
Mr.  G.M., they had not been associated with its publication in "FORUM".
These proceedings were referred to the Vienna District Court for
Criminal Affairs (Strafbezirksgericht) which subsequently discontinued
them on 9 April 1984.

        The trial of the defamation case against the applicant was
held by the Regional Court on 11 May 1984.  The Court took evidence by
consulting various documents, hearing Mr.  G.M. as a witness and
hearing the applicant.  The applicant offered evidence that he
had written the truth (Wahrheitsbeweis) and claimed that in this
respect it was sufficient that the criminal information had actually
been laid against Mr.  G.M. in the terms published in "FORUM".  He
further claimed that by reporting the criminal suspicion he had acted
in the exercise of a legal duty, and that therefore he was exculpated
according to Section 114 of the Penal Code.  The fact that the legal
qualification of Mr.  G.M.'s statement might have been erroneous could
not be held against him because he was not a lawyer.

        However, in its judgment of the same day, the Regional Court
convicted him of the offence of defamation under Section 111 (1) and
(2) of the Penal Code, imposing a fine of AS 4000.-, to be replaced in
case of default by 25 days' imprisonment.  Simultaneously, several
measures were pronounced against the owners of "FORUM": the seizure of
the relevant issue of this periodical (Section 33 of the Media Act),
the publication of the judgment (Section 34 of the Media Act), the
joint liability of the owners of "FORUM" for the payment of the fine
(Section 35 (1) of the Media Act), and the adjudication of
compensation to Mr.  G.M. in the amount of AS 5000.- (Section 6 of the
Media Act).

        The Regional Court held that it was bound by the decision of
the Court of Appeal of 31 May 1983 according to which the objective
conditions of the offence of defamation were fulfilled despite the
fact that the publication had the form of a criminal information.  The
applicant's defence  did not convince the Court.  In the Court's view
it was not sufficient that Mr.  G.M. had made the criticised statement
and that a criminal information had been laid regarding this statement
in the terms published in "FORUM".  Mr.  G.M.'s statements showed a
hostile attitude to foreigners, but did not amount to a National
Socialist attitude nor to a criminal offence.  Therefore the applicant
had failed to establish the truth of his allegations in this respect.

        The fact that the publication was only a reprint of the
criminal information laid against Mr.  G.M. did not exculpate the
applicant.  While everyone was free to report facts to the police
which he considered to constitute a criminal offence, it went far
beyond the mere reporting of a criminal suspicion to publish the
criminal information in question in a periodical and thus to make it
accessible to the general public.  In this respect the applicant could
not invoke a legal duty or even a legal right.

        The applicant appealed against his conviction and sentence.
He also applied for a correction of the trial court's record which,
according to him, failed to mention certain statements of Mr.  G.M.
which were of importance for judging the latter's attitudes and thus
for the assessment of the evidence showing the truth of the
applicant's allegations.  Allegedly, Mr.  G.M. had at the trial inter
alia confirmed his attitude that he was opposed to excessive
immigration of foreigners ("Überfremdung") and that for technical
reasons he approved the "stop foreigners" campaign ("Ausländer Halt")
which, as the applicant observes, was staged by a right wing political
party and was subsequently prohibited.  Mr.  G.M. had also admitted
having considered measures of social policy directed against the
children of foreign workers in Austrian schools.  These statements,
however, did not appear in the trial record.

        On 4 October 1984 the Regional Court rejected the application
for correction of the record as being inadmissible.  It stated that
after five months the judge had no recollection of the detailed
formulations used, and that nothing in the notes of the transcriber
supported the applicant's request.

        On 16 December 1984 the applicant's appeal (Berufung) against
his conviction and sentence was rejected by the Vienna Court of
Appeal.  The Court observed that the ruling refusing a correction of
the trial record was final and that there was no appearance that
requests made during the trial had not been determined.  Moreover, the
allegedly important statements of Mr.  G.M. were irrelevant for the
Court's decision.

        The Regional Court had not been legally bound to follow the
Court of Appeal's earlier decision concerning the qualification of the
offence.  However, the Court of Appeal saw no reason to depart from
that decision.  The case did not concern the (possibly wrong) legal
qualification of Mr.  G.M.'s statements by the applicant, but
allegations putting a stain on Mr.  G.M.'s character which objectively
could not be based on these statements.

        The Regional Court had rightly found that the applicant had
failed to show that his allegations were true.  The fact that a short
report on the criminal information against Mr.  G.M. would not have
been punishable did not justify the conclusion that a full reprint
of the criminal information was not punishable either.  The
presentation of the publication in the form of a criminal information
must have created the impression for the average reader that a
particularly serious reproach was made against Mr.  G.M.'s character.
Neither the right to report a criminal suspicion (Section 86 (1) of
the Code of Criminal Procedure) nor the exception stipulated in
Section 114 (2) of the Penal Code justified the full publication of
the criminal information because it was not proportionate ("mangels
Anlassadäquanz"):  National Socialist attitudes had been insinuated to
Mr.  G.M. without a sufficient basis in the facts.

        The written judgment was served on the applicant on
7 January 1985.


COMPLAINTS

1.      The applicant alleges a violation of his right to freedom of
expression as guaranteed by Article 10 of the Convention.  He does not
claim that the legal provisions of the Austrian Penal Code concerning
the offence of defamation are in breach of this provision, but
contends that the application of these provisions in his case cannot
be justified under Article 10 para. 2, in particular that his
conviction was not "necessary in a democratic society" for "the
protection of the reputation or rights of others".  He claims that the
publication in question constituted a value judgment concerning the
behaviour of a leading politician and that under the Commission's
case-law (in particular No. 9815/82, Lingens v.  Austria, Comm.  Report
11.10.84, and No. 8803/79, Lingens and Leitgeb v.  Austria, Dec.
11.12.81, D.R. 26 p. 171) such value judgments must in principle be
admitted in publications of the press in a democratic society, because
they are by their nature not accessible to proof of truth.

2.      In addition, the applicant alleges violations of his
procedural rights under Articles 6 and 13 of the Convention.

        He claims that it was contrary to Article 6 read in
conjunction with Article 13 that certain judges of the Court of Appeal
had earlier participated in the decision of the Review Chamber of the
Regional Court to discontinue the proceedings, or in the decision on
the appeal against the Review Chamber's decision.  This was contrary
to Section 489 para. 3 of the Austrian Code of Criminal Procedure and
the impartiality of the Court and the fairness of the proceedings were
thereby impaired.

        The applicant further complains that in the second round of
proceedings he was deprived of an effective remedy against the Regional
Court's decision by the Court of Appeal because this Court had already
pronounced itself on the merits in the first round.  The applicant
claims that, pending the entry into force of Protocol No. 7 to the
Convention, a right to effective criminal appeal proceedings can be
derived from Article 13 of the Convention.

        The applicant finally complains that it was incompatible with
Article 13 of the Convention and contrary to the principles of fair
trial that his request for a correction of the record of the trial of
11 May 1984 was rejected.  He states that this record was of
fundamental importance for the proof of truth.


PROCEEDINGS

        The application was introduced by a letter which the applicant
addressed to the Commission on 16 June 1985.  This letter was received
on 25 June 1985 and following the submission of the application form
the case was registered on 29 July 1985, 25 June 1985 being indicated
as the date of introduction.

        On 9 November 1987 the Commission decided to give notice of
the application to the respondent Government, in accordance with Rule
42, para. 2 (b) of its Rules of Procedure, and to invite them to
submit before 5 February 1988 their observations in writing on the
admissibility and merits of the application.  At the request of the
Government this time-limit was subsequently extended until 15 March 1988.

        The Government submitted their observations on 23 February 1988
and the applicant replied thereto on 21 April 1988.


THE LAW

1.      The Government claim that the applicant has not complied with
the rule under Article 26 (Art. 26) of the Convention according to which the
Commission may only deal with a matter "within a period of six months
from the date on which the final decision was taken".  They observe
that, according to the information provided by the Commission when
communicating the case to the Government, the application was
introduced on 25 June 1985 whereas the final domestic decision was
pronounced by the Vienna Court of Appeal on 16 December 1984, i.e.
more than six months before this date.  The fact that the written
judgment was served upon the applicant on 7 January 1985 is irrelevant
in the Government's opinion which in this respect relies on the
Commission's decision on the admissibility of Application No. 5759/72
(Dec. 20.5.75, D.R. 6 p. 15).  The applicant has replied to this that he
actually introduced the application on 16 June 1985.  Indeed his first
letter, setting out the substance of the case, is dated 16 June 1985.
In these circumstances the application must, in accordance with the
usual practice of the Commission, be regarded as having been
introduced on 16 June 1985, i.e. the last day of the six months' time- limit
provided for in Article 26 (Art. 26), if that time-limit should have to be
counted as from the date when the final judgment was pronounced orally.
Accordingly the application cannot be rejected as having been filed out of
time.

2.      The applicant complains that his conviction for defamation of a
politician and the related seizure of his publication constituted an
unjustified interference with his right to freedom of expression as guaranteed
by Article 10 (Art. 10) of the Convention.  This provision reads as follows:

   "(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. ...

    (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 pre-
        scribed 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 and morals, for 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."


        The applicant's freedom of expression under Article 10 para. 1
(Art. 10-1) of the Convention has been interfered with by his conviction and
sentence for the publication in the periodical "FORUM".

        The applicant claims that this interference was not covered by
Article 10 para. 2 (Art. 10-2), in particular that it was not necessary in a
democratic society for the protection of the reputation of others to
interfere with a publication which was merely a reprint of a criminal
information which had actually been laid and which expressed critical
value judgments on the behaviour of a politician in the form of a
legal qualification of this behaviour.

        The Government submit, in particular, that with appropriate
legal advice the applicant should have realised that the suspicion of
the criminal offences alleged by him was wholly unfounded.  The
applicant was entitled, but not obliged, to lay a criminal information,
and in this context he was not required to qualify the reported facts
from a legal point of view.  If he did so and overstepped the limits
of what was necessary he was responsible for his action.  In any event
he had not been convicted for the fact of having laid a criminal
information which was legally untenable, but only because he had
published it.  This was not merely the expression of an opinion in the
form of a value judgment which was not susceptible of being proven as
true.  The arguability of the legal qualification of given facts can
be verified by reference to the applicable laws and the relevant
case-law.  In this context allowance must be made for a certain degree
of legal uncertainty, justifying the adoption of different opinions.
However, in the present case the legal opinion expressed by the
applicant was totally unreasonable ("geradezu denkunmöglich"), since
hardly any of the elements of the criminal offences alleged by him
were met.  In these circumstances it was possible to assess the
question of the correctness of the legal opinion expressed by him.
The applicant used an objectively and subjectively wrong legal opinion
concerning a politician's behaviour in order to insinuate a despicable
attitude to the latter.  While politicians were required to sustain a

higher degree of criticism than other people, there were nevertheless
limits to such criticism.  The unproven allegation of National
Socialist attitudes constituted a massive attack on a person's
reputation also if he was a politician.  The applicant's conviction of
defamation was therefore justified, in particular as the sanctions
imposed were not disproportionate.

        The Commission has considered these arguments, but finds that
the applicant's complaint cannot, at this stage, be rejected as being
manifestly ill-founded.  It raises complex issues of law and fact
concerning the application of Article 10 (Art. 10) of the Convention which
require a determination on the merits.

3.      The applicant has further submitted a number of procedural complaints.
He has invoked Articles 13 and 6 (Art. 13, 6) in this respect, but the
Commission considers that only the latter provision is applicable.  In fact the
applicant was charged with a criminal offence, and therefore was entitled to
the procedural guarantees enshrined in Article 6 paras. 1 to 3 (Art. 6-1, 6-2,
6-3).  As these provisions are more specific than those contained in Article 13
(Art. 13) of the Convention, there is no room to apply the latter Article.

        Article 6 para. 1 (Art. 6-1), first sentence, of the Convention
provides:

        "In the determination of his civil rights and
        obligations or of any criminal charge against him,
        everyone is entitled to a fair and public hearing
        within a reasonable time by an independent and
        impartial tribunal established by law."


        The applicant claims that the Court of Appeal which dealt with
the case in the second round of the proceedings lacked impartiality,
because it included judges who had participated in the first round of
the proceedings, and who would have been excluded by virtue of
Section 489 para. 3 of the Austrian Code of Criminal Procedure.
The applicant also claims that he has not had a fair hearing because
the Court of Appeal had the same composition as in the first round of
proceedings and therefore had preconceived ideas when examining the
applicant's appeal in the second round.

        In this respect the Commission first notes from the information
provided by the Government that no member of the Court of Appeal had
previously been involved in the Regional Court's proceedings.

        However, the Court of Appeal had the same President in both
rounds of the proceedings.  Under Section 489 para. 3 of the Code of
Criminal Procedure the President should not have participated on the
second occasion.

        The Government submit that the applicant has not exhausted the
domestic remedies in this respect as he failed to raise the issue of
the composition of the court immediately at the trial.  The applicant,
on the other hand, states that neither he nor his defence counsel knew
the presiding judge and that the defence only learnt from the decision
when it was served that he had been the same person who had also
presided over the Court of Appeal in the first round of proceedings.
In these particular circumstances the applicant must be absolved from
using the remedy indicated by the Government, and therefore this part
of the application cannot be rejected for failure to exhaust domestic
remedies.

        As regards the substance of the applicant's above complaint,
the Commission finds that it cannot at this stage be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.  In particular the fact that a legally excluded judge took part
in the Court of Appeal's proceedings raises an issue as to whether the Court
was "impartial" and "established by law" within the meaning of Article 6 para.
1 (Art. 6-1) of the Convention.  This issue requires a determination on the
merits.

4.      The applicant finally complains of the Regional Court's
refusal to rectify the record of the trial as requested by him.  He
claims that the record did not correctly reflect the position stated
by the private prosecutor, who had been heard as a witness, and that
this was of particular relevance for the proof of the truth of the
applicant's allegations.

        The Government submit that in this respect the applicant has
failed to comply with the six-months rule as laid down in Article 26
(Art. 26) of the Convention because the final decision here was the
decision of the trial judge of 4 October 1984.  However, the
Commission notes that the question of the trial record was in fact
considered in the Court of Appeal's decision of 16 December 1984.  In
these circumstances the applicant's above complaint cannot be rejected
as having been filed out of time.

        The Commission notes that the question of the trial record
could be of relevance for the proceedings of the Court of Appeal and,
in particular, the fairness thereof.  It considers that this issue
cannot be severed from the applicant's other complaints under Article 6
(Art. 6) and therefore must also be determined as to the merits.


        For these reasons, the Commission


        DECLARES THE APPLICATION ADMISSIBLE,
        without prejudging the merits of the case.


Secretary to the Commission            Acting President of the Commission



   (H.C. KRÜGER)                               (J.A. FROWEIN)