Case of European Court of Human Rights, May 23, 1991 (case Oberschlick v. Austria (no. 1))

Resolution Date:May 23, 1991

Information Note on the Court’s case-law No.

May 1991

Oberschlick v. Austria (no. 1) - 11662/85

Judgment 23.5.1991

Article 10

Journalist's conviction for defamation of a politician: violation

[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]

I.              PRELIMINARY OBJECTION

Government plea that application lodged out of time:

– as regards main complaints under Article 6 § 1 and Article 10 of the Convention, application was posted within the six-month time-limit;

– as regards complaint concerning rectification of the trial record, period runs, for procedural decisions of kind involved, only from same date as is relevant with regard to the final decision on the merits.

Conclusion: Preliminary objection rejected (unanimously).

II.              ARTICLE 6 § 1 OF THE CONVENTION

A.              Proceedings before the Vienna Regional Court

No reason to examine complaint concerning refusal to rectify trial record, which not pursued before the Court.

Regional Court's finding that it was bound by previous Court of Appeal decision, although contrary to domestic law, did not of itself violate the Convention: its conclusion that applicant guilty was fully-reasoned and upheld on appeal.

B.              Proceedings before the Vienna Court of Appeal

Court of Appeal composed of same judges as had sat in a first set of proceedings in the same case – applicant's complaints that it was not "impartial" and not "established by law" coincide in substance – domestic rule forbidding participation of those judges in the second set of proceedings manifests legislature's concern to remove all reasonable doubts as to impartiality – applicant's appeal accordingly heard by a tribunal whose impartiality national law recognised to be open to doubt.

Waiver of the right to an impartial tribunal not established – neither applicant nor his counsel were aware at the time that all three appeal judges had also participated in the first set of proceedings.

Conclusion: violation as regards the Court of Appeal, but not as regards the Regional Court (unanimously).

III.              ARTICLE 10 OF THE CONVENTION

Not disputed that interference with applicant's freedom of expression was "prescribed by law" and had legitimate aim of protecting the reputation or rights of others.

A.              General principles as to...

To continue reading

Request your trial