Injustice in Austria

Dr. Thomas Klestil
President of Austria

Dear Mr. President:

We are writing to you to express our grave concern about the recent conviction of University Professor Dr. Anton Pelinka for defamation of character because of a statement he had made to a foreign television station one year ago about Jörg Haider, recently retired FPÖ national chairman and current Landeshauptmann of Carinthia. We were not surprised, nor particularly worried, to learn that Haider had brought yet another lawsuit for an alleged defamation of character: this is his right, and has become his habit. What we do consider extremely troubling is the willingness of an Austrian judge to countenance such a transparent attempt by Haider to use the courts to intimidate his political critics. The verdict thus not only aims to silence Professor Pelinka by threatening his livelihood, but, if not forcefully opposed, it threatens to limit freedom of speech, and therefore political debate, in Austria at a time when it is most needed.

Many Austrian citizens, and friends of Austria abroad, have expressed their concerns about possible dangers to democratic freedoms in Austria since the Austrian People’s Party agreed to form a coalition with Haider’s Freedom Party last February. We consider Pelinka’s conviction to be a serious warning sign that should not be taken lightly. We urge you to speak out, and to use your constitutional prerogatives and the moral authority of your office to the fullest extent, not only to defend Professor Pelinka, but also to help preserve the broadest possible scope for political criticism of public officials.

As you doubtless have already heard, on May 1, 1999, the Italian television station RAI broadcast a report on Haider’s political career. Among those interviewed for the program was University of Innsbruck professor Anton Pelinka, an internationally renowned and widely respected authority on Austrian and European affairs. During the course of the interview he gave RAI, Pelinka stated, among other things, “In his career, Haider has repeatedly made statements which amount to trivializing National Socialism. Once he described death camps as penal camps. On the whole, Haider is responsible for making certain National Socialist positions and certain National Socialist remarks more politically acceptable.”

For having made this statement, Pelinka was convicted by a court in Vienna of having defamed Haider’s character, and fined ATS 60,000 While this is not an exorbitant sum, it does not include court costs or lawyers’ fees. Yet the size of the fine is the least significant aspect of this case. It is virtually certain that Pelinka’s recent conviction (like so many before it), will be overturned by the European Court of Human Rights in Strasbourg, if it is not dismissed on appeal by an Austrian court, which we hope it will be. Not infrequently, indeed, Austrian judges do come down squarely on the side of more open political debate. For example, in a similar suit Haider had brought against Austrian Green politician Peter Pilz for having described Haider as the “ideological foster father of right-wing extremism,” the court found in favor of Pilz’s right to express this view. Nevertheless, all such cases involve significant expense for the defendants (a consideration of no consequence for Haider, who is independently wealthy), and the appeals process can take years to run its course.

We recognize that Haider is not the first, nor the only, Austrian public official to make use of the courts to silence political criticism. It was condemnable when former chancellor Bruno Kreisky sued Peter Michael Lingens of Profil (subsequently overturned by the European Court of Human Rights), and it was equally reprehensible when former president Kurt Waldheim initiated criminal proceedings against then Weltwoche editor Hanspeter Born (subsequently withdrawn by Waldheim himself). For this reason we are encouraged by your recent decision not to authorize a criminal prosecution against the leader of the Vienna FPÖ, Hilmar Kabas, for allegedly having insulted you in a particularly crude way. Though from the press reports we have seen there was strong evidence suggesting that Kabas had made the statement in question, and hence a conviction seemed highly likely, you demurred, letting it be known that such statements by themselves adequately expose the political and moral bankruptcy of their speakers. We agree most readily that in a healthy democracy, the courts are not the proper place to conduct, nor to adjudicate, political debate, even when it is considered insulting.

But while Haider might not be the first to do so, no one has attempted to use state organs to throttle political criticism more frequently or deliberately than he. Indeed, another defamation suit brought by Haider against Pelinka is pending for an interview the latter gave to CNN. Politicians’ ability to limit or even suppress unwanted critical comment by means of the defamation and libel laws has always burdened Austria’s democracy. Yet with Haider’s party now in the government, and with Dieter Böhmdorfer, Haider’s former personal lawyer (and the original counsel of record in the suits brought against Pelinka), currently serving as the Minister of Justice, the problem has become more acute, and far more serious.

We therefore once again register in the strongest possible terms our opposition to this recent misuse of the court system for political purposes, and urge you to do all within your power to preserve the widest possible arena for political expression in Austria. For it is this quality above all which distinguishes stable democracies from other less desirable political systems.

Prof. Dr. David Abraham, University of Miami Law School
Prof. Dr. Christopher S. Allen, University of Georgia
Dr. Steven Beller, Washington, D. C.
Prof. Dr. Seyla Benhabib, Harvard University
Prof. Dr. Guenter Bischof, University of New Orleans
Prof. Dr. John W. Boyer, University of Chicago
Prof. Dr. Christine Day, University of New Orleans
Prof. Dr. István Deák Columbia University
Prof. Dr. Robert Dupont, University of New Orleans
Prof. Dr. Geoff Eley, University of Michigan
Prof. Dr. Thomas C. Ertman, Harvard University
Prof. Dr. David Good, University of Minnesota
Prof. Dr. Peter Hall, Harvard University
Prof. Dr. Julia Hell, University of Michigan
Prof. Dr. Jeffrey Herf, Ohio University
Prof. Dr. Michael G. Huelshoff, University of New Orleans;
Prof. Dr. Tony R. Judt, New York University
Prof. Dr. John J. Kulczycki, University of Illinois, Chicago
Prof. Dr. David Large, Montana State University, Bozeman
Prof. Dr. Richard S. Levy, University of Illinois, Chicago
Prof. Dr. Charles Maier, Harvard University
Prof. Dr. Andrei S. Markovits, University of Michigan
Prof. Dr. Richard Mitten, Central European University
Prof. Dr. Johannes von Moltke, University of Michigan
Prof. Dr. Regina Morantz-Sanchez, University of Michigan
Dir. Dr. Beth Simone Noveck, Yale University Law School
Prof. Dr. Peter Pulzer, Oxford University
Prof. Dr. Anson Rabinach, Princeton University
Prof. Dr. Jonathan Steinberg, University of Pennsylvania
Prof. Dr. George Steinmetz, University of Michigan
Prof. Dr. Vladimir Tismaneanu, University of Maryland, College Park
Prof. Dr. Liliane Weissberg, University of Pennsylvania
Prof. Dr. Steven Whiting, University of Michigan
Prof. Dr. Jack Zipes, University of Minnesota