Lingens v Austria

• Judgment Date: 08 July 1986
• ECLI: ECLI:CE:ECHR:1986:0708JUD000981582
• Respondent State: Austria
• Date: 08 July 1986
• Counsel: N/A
• Applied Rules: 10;10-1;10-2;41
• Official Gazette Publication: [object Object]
• Application Number: 9815/82
• Court: Plenary (European Court of Human Rights)

COURT (PLENARY)

CASE OF LINGENS v. AUSTRIA

(Application no. 9815/82)

JUDGMENT

STRASBOURG

8 July 1986

In the Lingens case[*],

The European Court of Human Rights, taking its decision in plenary session in pursuance of Rule 50 of the Rules of Court and composed of the following judges:

Mr. R. Ryssdal, President,

Mr. W. Ganshof van der Meersch,

Mr. J. Cremona,

Mr. G. Wiarda,

Mr. Thór Vilhjálmsson,

Mrs. D. Bindschedler-Robert,

Mr. G. Lagergren,

Mr. F. Gölcüklü,

Mr. F. Matscher,

Mr. J. Pinheiro Farinha,

Mr. L.-E. Pettiti,

Mr. B. Walsh,

Sir Vincent Evans,

Mr. R. Macdonald,

Mr. C. Russo,

Mr. R. Bernhardt,

Mr. J. Gersing,

Mr. A. Spielmann,

and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy Registrar,

Having deliberated in private on 27 November 1985 and 23-24 June 1986,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The present case was referred to the Court, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"), on 13 December 1984 by the European Commission of Human Rights ("the Commission") and, subsequently, on 28 January 1985, by the Federal Government of the Republic of Austria ("the Government"). The case originated in an application (no. 9815/82) against Austria lodged with the Commission on 19 April 1982 under Article 25 (art. 25) by Mr. Peter Michael Lingens, an Austrian national.

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the Republic of Austria recognised the compulsory jurisdiction of the Court (Article 46) (art. 46), and the Government’s application referred to Article 48 (art. 48). They sought a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 (art. 10).

2. In response to the inquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, Mr. Lingens stated that he wished to take part in the proceedings pending before the Court and designated the lawyer who would represent him (Rule 30).

3. The Chamber of seven judges to be constituted included, as ex officio members, Mr. F. Matscher, the elected judge of Austrian nationality (Article 43 of the Convention) (art. 43), and Mr. G. Wiarda, the President of the Court (Rule 21 para. 3 (b)). On 23 January 1985, the President drew by lot, in the presence of the Registrar, the names of the five other members, namely Mrs. D. Bindschedler-Robert, Mr. G. Lagergren, Sir Vincent Evans, Mr. R. Bernhardt and Mr. J. Gersing (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

4. Mr. Wiarda assumed the office of President of the Chamber (Rule 21 para. 5). After consulting, through the Deputy Registrar, the Agent of the Government, the Commission’s Delegate and Mr. Lingens’ lawyer, he

- decided, on 11 February 1985, that there was no call at that stage for memorials to be filed (Rule 37 para. 1);

- directed, on 4 July, that the oral proceedings should open on 25 November 1985 (Rule 38).

On 30 January, the President had granted the applicant’s lawyer leave to use the German language during the proceedings (Rule 27 para. 3).

5. On 4 May 1985, the International Press Institute (IPI), through Interights, sought leave to submit written observations under Rule 37 para. 2. On 6 July, the President agreed, subject to certain conditions.

After an extension of the time-limit originally granted, these observations were received at the Court’s registry on 1 October 1985.

6. On 25 September 1985, the Chamber had decided under Rule 50 to relinquish jurisdiction forthwith in favour of the plenary Court.

In a letter received at the registry on 13 November the applicant submitted his claims under Article 50 (art. 50) of the Convention.

7. The hearings, presided over by Mr. Ryssdal who had become President of the Court on 30 May 1985, were held in public at the Human Rights Building, Strasbourg, on 25 November 1985. Immediately before they opened, the Court had held a preparatory meeting.

There appeared before the Court:

- for the Government

Mr. H. Türk, Legal Adviser,

Ministry of Foreign Affairs, Agent,

Mr. W. Okresek, Federal Chancellery,

Mr. G. Felsenstein, Ministry of Justice, Advisers;

- for the Commission

Mr. H.G. Schermers, Delegate;

- for the applicant

Mr. W. Masser, Rechtsanwalt, Counsel,

Mr. P.M. Lingens, Applicant.

The Court heard addresses by Mr. Türk and Mr. Okresek for the Government, by Mr. Schermers for the Commission and by Mr. Masser for the applicant and Mr. Lingens himself, as well as their replies to its questions.

On 6 December 1985 and 17 March 1986, Mr. Masser, complying with a request by the President, filed with the registry several documents giving further particulars of the applicant’s claims for just satisfaction. The Government replied on 18 March 1986.

AS TO THE FACTS

8. Mr. Lingens, an Austrian journalist born in 1931, resides in Vienna and is editor of the magazine Profil.

I. THE APPLICANT’S ARTICLES AND THEIR BACKGROUND

9. On 9 October 1975, four days after the Austrian general elections, in the course of a television interview, Mr. Simon Wiesenthal, President of the Jewish Documentation Centre, accused Mr. Friedrich Peter, the President of the Austrian Liberal Party (Freiheitliche Partei Österreichs) of having served in the first SS infantry brigade during the Second World War. This unit had on several occasions massacred civilians behind the German lines in Russia. Mr. Peter did not deny that he was a member of the unit, but stated that he was never involved in the atrocities it committed. Mr. Wiesenthal then said that he had not alleged anything of the sort.

10. The following day, Mr. Bruno Kreisky, the retiring Chancellor and President of the Austrian Socialist Party (Sozialistische Partei Österreichs), was questioned on television about these accusations.

Immediately before the television interview, he had met Mr. Peter at the Federal Chancellery. Their meeting was one of the normal consultations between heads of parties with a view to forming a new government; it had aroused great public interest because before the elections on 5 October the possibility of a Kreisky-Peter coalition government had been canvassed.

At the interview, Mr. Kreisky excluded the possibility of such a coalition because his party had won an absolute majority. However, he vigorously supported Mr. Peter and referred to Mr. Wiesenthal’s organisation and activities as a "political mafia" and "mafia methods". Similar remarks were reported the next day in a Vienna daily newspaper to which he had given an interview.

11. At this juncture, the applicant published two articles in the Vienna magazine Profil.

12. The first was published on 14 October 1975 under the heading "The Peter Case" ("Der Fall Peter"). It related the above events and in particular the activities of the first SS infantry brigade; it also drew attention to Mr. Peter’s role in criminal proceedings instituted in Graz (and later abandoned) against persons who had fought in that brigade. It drew the conclusion that although Mr. Peter was admittedly entitled to the benefit of the presumption of innocence, his past nevertheless rendered him unacceptable as a politician in Austria. The applicant went on to criticise the attitude of Mr. Kreisky whom he accused of protecting Mr. Peter and other former...