SCHWABE v.

AUSTRIA
ARTICLE 50 OF THE CONVENTION
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation to be made for the consequences of this decision or
measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

Carinthia Mayor and Austrian Socilaist Party (OVP) member Tomaschitz was convicted of causing
bodily harm and abandoning a victim in a traffic accident while under the influence of alcohol (at least
1.75 per mille); sentenced to 4 months in prison, political circles began talking about how he should
resign
Carinthian newspaper Kleine Zeitung quoted Provincial Government head Wagner of the SVP about
how Tomaschitz should resign, but the matters should otherwise be a matter primarily for the OVP
Later on, a Mr. Schwabe, a member of the SVP wrote an article in Klein Zeitung entitled Looking for
Morality in the OVP: Different standards?; the article basically referred to another member of the OVP,
Fruhbauer involved in a car accident while intoxicated
Fruhbauer asked for preliminary investigation against Mr. Schwabe for using the term intoxication
because in truth he was only assessed with an intoxication level of 0.8 per mille, saying that the article
was deceiving and was potentially damaging to his name
Convicted by the lower court, Schwabe filed an appeal with the CA which was dismissed on the ground
that Fruhbauer was cited wantonly, not just Mr. Wagner; Schwabe filed a plea with the Attorney-General
in reference to the right of freedom of expression under Article 10 of the convention, citing Lingens v.
Austria

ISSUE: Whether or not the right of Schwabe under Article 10 of the Convention (Right to freedom of
expression) was violated.
HELD/RATIO: YES. AUSTRIA TO INDEMNIFY SCHWABE.
NEWSPAPER ARTICLE WAS VALID UNDER ARTICLE 10
It is apparent from the release, when read as a whole, that the applicants main concern was to show that Mr
Wagner applied different and stricter standards of political morality to a "small mayor of a village", belonging
to another political party, than to his "party friend" and deputy (see paragraph 9 above). The applicants
press release did not try to compare the two traffic accidents from a legal point of view. It only sought to
make a statement concerning political morality. The reference to the 1966 accident was incidental to this
main issue, which was a matter of public interest.
Even if at the outset, as the Government maintained, neither the applicant nor Mr Frhbauer was directly
involved in the political discussion, which concerned primarily the Mayor and the Head of the Provincial
Government, the question subsequently became, following the latters intervention, a matter of general
debate on political morals between the two rival parties.
The applicants conviction for defamation stemmed, according to the Austrian courts, from the fact that he
failed to prove the truth of his statement. They interpreted the words "while under the influence of alcohol",
appearing in the press release, as meaning an alcohol content of 0.8 per mille or more, on the basis of the
comparison made with Mr Tomaschitzs accident
The Court does not, however, consider it established that the applicants statement about Mr Frhbauers
alcohol consumption was misleading. It moreover points out that the two accidents were not the subject of
direct comparison but were mentioned only in relation to the different attitude of Mr Wagner towards them. It
is significant that the applicant described both accidents in completely different terms (see paragraph 9
above). He nevertheless concluded that they had enough features in common to warrant the resignation of
both the politicians concerned.

The Court notes in this connection that the facts on which the applicant based his value-judgment were
substantially correct and his good faith does not give rise to serious doubts. He cannot be considered to
have exceeded the limits of freedom of expression.
SCHWABE TO BE INDEMNIFIED; PRINCIPLE OF INTERPRETATION TO BE READ IN CONTEXT WITH
ARTICLE 50
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and
if the internal law of the said Party allows only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."