10
LINGENS v. AUSTRIA JUGDMENT
too found that he was criticised in his capacity both as a party leader and as
a private individual.
The expression "the basest opportunism" meant that the person referred
to was acting for a specific purpose with complete disregard of moral
considerations and this in itself constituted an attack on Mr. Kreisky’s
reputation. The use of the words "had they been made by someone else"
(see paragraph 12 above) could not be understood as a withdrawal of the
criticism. As the defendant had not succeeded in proving the truth of it, the
court of first instance had been right to find him guilty of an offence.
According to the applicant, the expressions "immoral" and "undignified"
were his personal judgment of conduct which was not disputed, a judgment
made in exercise of his freedom of expression, guaranteed by Article 10
(art. 10) of the Convention. The Court of Appeal did not accept this
argument; it pointed out that Austrian law did not confer upon the
individual an unlimited right to formulate value-judgments and that Article
10 (art. 10) authorised limitations laid down by law for the protection, inter
alia, of the reputation of others. Furthermore, the task of the press was to
impart information, the interpretation of which had to be left primarily to
the reader. If a journalist himself expressed an opinion, it should remain
within the limits set by the criminal law to ensure the protection of
reputations. This, however, was not the position in the instant case. The
burden was on Mr. Lingens to establish the truth of his statements; he could
not separate his unfavourable value-judgment from the facts on which it was
based. Since Mr. Kreisky was personally convinced that Mr. Wiesenthal
used "mafia methods", he could not be accused of having acted immorally
or in an undignified manner.
30. The appeal judgment was published in Profil on 22 February 1982, as
required by the accessory penalty imposed on Mr. Lingens and his
publisher.
PROCEEDINGS BEFORE THE COMMISSION
31. In his application of 19 April 1982 to the Commission (no. 9815/82),
Mr. Lingens complained of his conviction for defamation through the press
(Article 111 para. 2 of the Criminal Code).
32. The Commission declared the application admissible on 5 October
1983. In its report of 11 October 1984 (Article 31) (art. 31), it expressed the
unanimous opinion that there had been a breach of Article 10 (art. 10). The
full text of the Commission’s opinion is reproduced as an annex to the
present judgment.