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Ex-politician seeks public office: Can past convictions be reported?


A former top Austrian politician who has been convicted twice in criminal court (once for making false statements and once for serious fraud and breach of trust) is seeking a public function in the media sector. The ex-politician has already served the full sentences of both convictions. For the media, the legal question now arises as to whether and, if so, in what form, the two previous convictions of the ex-politician may be reported on in connection with his new public function. § Section 113 of the StGB penalises the "accusation of an offence that has already been dismissed by a court". This provision serves to protect the honour of the previously convicted offender and is intended to ensure his rehabilitation.

This provision is intended to prevent the previous offender from being regularly reproached for his criminal offence. The offence prohibited by this provision consists of the accusation of an offence punishable by law for which a penalty has already been pronounced and executed. Case law and doctrine are not always in complete agreement as to whether the accusation must include a reprimand in order to be relevant under criminal law. In its last decision on this issue in 2015, the Supreme Court (OGH) stated that "the accusation of an offence that has already been dismissed by the court requires a reprimand, whereas the mere mention of the previous conviction is not sufficient".

The protection of the honour of the previously convicted person intended by this provision may conflict with the right to freedom of expression or freedom of the press. In individual cases, a balance must be struck between the public's interest in information on the one hand and the protection of the victim's honour on the other. According to the Supreme Court's case law, "the importance of the topic, the position, the level of awareness and the (previous) behaviour of the person concerned in the public eye must be taken into account when weighing up these interests."

Since the former top politician who is seeking a public function again can be qualified as a "public figure", a mere - not censuring - mention of his previous convictions in the context of a critical examination of his intended new activity may be legally permissible. However, it should be noted that the circumstances of the individual case are decisive when weighing up the protection of the honour of the person concerned against the right to freedom of expression.

This guest commentary originally appeared in Horizont on March 12, 2024.