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.

Austria - journalist's conviction for publishing an article considered capable of influencing outcome of criminal proceedings (section 23 of the Media Act)

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".

B. Whether interference pursued a legitimate aim

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.

C. Whether interference was "necessary in a democratic society"

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".

Conclusion: no violation (seven votes to two).

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

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.

A. Whether the interference was "prescribed by law"

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.

C. Whether the interference was "necessary in a democratic society"

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.

| Return to Topic Menu | Return to Main Menu |