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IRIS 2001-4:3/2

European Court of Human Rights

Recent Judgment on Freedom of Expression in the Case of Jerusalem v. Austria

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Dirk Voorhoof

Media Law Section of the Communication Sciences Department, Ghent University, Belgium

In a judgment of 27 February 2001, the European Court of Human Rights once again recognised the importance of freedom of political debate in a democratic society, while re-emphasising the difference between factual allegations and value judgments. In the case of Jerusalem v. Austria, the applicant, Mrs Susanne Jerusalem, a member of the Vienna Municipal Council, alleged that an injunction prohibiting her from repeating certain statements violated her right to freedom of expression. In a speech in the course of a debate in the Municipal Council on the granting of public subsidies to associations, she had sharply criticised two associations, describing them as "sects" which had "a totalitarian character" and "fascist tendencies". The Regional Court granted an injunction prohibiting Mrs Jerusalem from repeating the statements. The injunction was upheld by the Court of Appeal and by the Supreme Court, both of which essentially reasoned that allegations such as "fascist tendencies" or "sects with a totalitarian character" were statements of fact which the applicant had failed to prove.

However, the European Court of Human Rights held unanimously that there had been a violation of Article 10 of the European Convention on Human Rights. The Court observed that the applicant was an elected politician and that freedom of expression is especially important for elected public representatives. The applicant's statements were made in the course of a political debate and, although not covered by immunity as they would have been in a session of the Regional Parliament, the forum was comparable to Parliament insofar as the public interest in protecting the participants' freedom of expression was concerned. According to the Court, "Parliament or such comparable bodies are the essential fora for political debate [in a democracy]. Very weighty reasons must be advanced to justify interfering with the freedom of expression exercised therein".

The Court regarded the statements of Mrs Jerusalem as value judgments and took into consideration the fact that she had offered documentary evidence which might have been relevant in showing that these value judgments were fair comment. By requiring the applicant to prove the truth of her statements, while at the same time depriving her of an effective opportunity to produce evidence to support them, the Austrian Courts had taken a measure that amounted to a disproportionate interference with her right to freedom of expression. The Court also stated that the requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 of the Convention. The Court concluded that the injunction preventing the repetition of the impugned statements was not necessary in a democratic society and hence violated Article 10.

The judgment will become final in accordance with Article 44 of the Convention, which governs the finalisation of judgments by the Court.

Judgment by the European Court of Human Rights (Third Section), Case of Jerusalem v. Austria, Application no. 26958/95 of 27 February 2001 EN