Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32165/96

by Frank WÖCKEL

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 December 1995

by Frank WÖCKEL against Germany and registered on 8 July 1996 under

file No. 32165/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1964, is a German national and resident

in Berlin. He is an environmental consultant by profession.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In May 1995 the applicant, a non-smoker, requested the Berlin

Prosecutor's Office (Amtsanwaltschaft) to enforce criminal proceedings

against MM. G. and D. on charges of unlawful coercion (Nötigung) and

of having caused bodily harm, stating that, in his presence, they had

been smoking cigarettes while driving in a non-smoking bus. By letter

of 27 November 1995 the Prosecutor's Office informed the applicant that

the proceedings against MM. G. and D. had been discontinued. The

Office found that, having regard to the statements of MM. G. and D.,

no unlawful coercion could be proven. Moreover, given the risk of

passive smoking elsewhere, it could not be established that the

applicant suffered any injuries to his health as a consequence of the

smoking of MM. G. and D.

On 15 September 1995, the President's Office (Präsidialrat) of

the Federal Constitutional Court (Bundesverfassungsgericht), upon his

constitutional complaint (Verfassungsbeschwerde), informed the

applicant about the possible obstacles to the admissibility of his

complaint, in particular the non-exhaustion of ordinary proceedings as

far as his request for prosecution of MM. G. and D. was concerned and

the limitations of judicial control of the State's positive obligations

to enact legislation in health matters.

In November 1995 the applicant further addressed a petition to

the Federal Diet (Bundestag) requesting that the legislature be ordered

to enact legislation prohibiting smoking in public. He joined a list

of signatures.

In reply, his attention was drawn to its decisions of

21 September 1994 and 31 March 1995 on previous petitions. In these

decisions, the Diet had noted that the Food Act (Lebensmittel- und

Bedarfsgegenständegesetz) contained provisions prohibiting or limiting

advertisement for tobacco-products and that the tobacco industry had

entered into an agreement of self-restraint further limiting

advertisement of tobacco-products. Legislation for the protection of

non-smokers in air traffic, the federal railways and in public

transport, in restaurants and at work had been enacted. The Diet had

also raised the constitutional and practical problems with regard to

legislation, in particular penal legislation, prohibiting smoking.

Rather, information on the risks of smoking, such as the campaign

started in 1987 by the Federal Office for Public Information on Health

Issues (Bundeszentrale für gesundheitliche Aufklärung) was called for.

On 26 May 1996 the Federal Diet closed the proceedings regarding

the applicant's petition of November 1995. The Diet considered that

it could not support the applicant's request for a general prohibition

on smoking as experience had shown that information on the risks of

smoking was more effective than punishment.

COMPLAINTS

The applicant complains about the lack of effective protection

of non-smokers. He submits in particular that he has been exposed to

smoking in public buildings such as police headquarters or court

buildings. He further complains that German courts do not regard

smoking as constituting the criminal offence of causing bodily harm.

He also states that, in his apartment, he has been suffering from his

neighbour's smoking, and that he cannot participate in religious

ceremonies or assemblies without being exposed to smoking. He also

refers to smoking in schools and in public transport. He invokes

Articles 2, 3, 6, 8, 9 and 11 of the Convention and Article 2 of

Protocol No. 1.

THE LAW

The applicant, invoking several provisions of the Convention and

of Protocol No. 1, respectively, complains about the allegedly

insufficient protection of non-smokers.

The Commission has examined the applicant's submissions in

particular under Articles 2 and 8 (Art. 2, 8) of the Convention.

Article 2 para. 1 (Art. 2-1) provides as follows:

"Everyone's right to life shall be protected by law. No one

shall be deprived of his life intentionally save in the execution

of a sentence of a court following his conviction of a crime for

which this penalty is provided by law."

Article 8 (Art. 8) reads:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Commission recalls that the approach to the interpretation

of Article 2 (Art. 2) must be guided by the fact that the object and

purpose of the Convention as an instrument for the protection of

individual human beings requires that its provisions be interpreted and

applied so as to make its safeguards practical and effective (cf. Eur.

Court HR, McCann and Others v. United Kingdom judgment of 27 September

1995, Series A no. 324, p. 45, para. 146). It imposes an obligation

on Contracting States not only to refrain from taking life

"intentionally" but also to take appropriate steps to safeguard life

(Eur. Court HR, McCann and Others judgment, op. cit., pp. 46-47, paras.

147-148; No. 7154/75, Dec. 12.7.78, D.R. 14, p. 31).

Moreover, as regards Article 8 (Art. 8) of the Convention, the

Court held that environmental pollution may affect individuals'

well-being and prevent them from enjoying their homes in such a way as

to affect their private and family life adversely, without, however,

seriously endangering their health (cf. Eur. Court HR, López Ostra v.

Spain judgment of 9 December 1994, Series A no. 303-C, p. 55, para. 51;

Guerra and Others v. Italy judgment of 19 February 1998, Reports of

Judgments and Decisions 1998, para. 60). The positive obligations

inherent in an effective respect for private or family life may involve

the adoption of measures designed to secure respect for private life

even in the sphere of the relations of individuals between themselves

(cf. Eur. Court HR, X and Y v. the Netherlands judgment of 26 March

1985, Series A no. 91, p. 11, para. 23; Botta v. Italy judgment of

24 February 1998, Reports of Judgments and Decisions 1998, para. 33).

The present case relates to the question whether the German State

is obliged, as claimed by the applicant, to enact legislation

prohibiting smoking in public with a view to protecting non-smokers.

The Commission observes that the choice of the means calculated

to secure compliance with the Convention in the sphere of the relations

of individuals between themselves is in principle a matter that falls

within the Contracting States' margin of appreciation. There are

different ways of ensuring respect for the Convention rights, and the

nature of the State's obligation will depend on the aspects of the

Convention right that is at issue.

The Commission notes that German law contains provisions limiting

the advertising of tobacco products and prohibiting smoking in certain

public areas. Moreover, the German authorities have given preference

to a public information campaign on the injurious effects of smoking.

The Commission finds that, bearing in mind the competing

interests of the applicant as a non-smoker and of the interests of

other individuals to continue smoking and the margin of appreciation

left to the national authorities, the absence of a general prohibition

on advertising of tobacco products and on smoking does not amount to

a failure on the part of the German State to ensure the applicant's

rights under Articles 2 and 8 (Art. 2, 8) of the Convention.

In these circumstances, there is no appearance of a violation of

the applicant's rights under the Convention and the Protocols thereto.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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WÖCKEL v. GERMANY

WÖCKEL v. GERMANY

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