AS TO THE ADMISSIBILITY OF

                      Application No. 36283/97

                      by Wolfgang, Ingrid, Maya and Iris KELLER

                      against Germany

     The European Commission of Human Rights (First Chamber) sitting

in private on 4 March 1998, the following members being present:

           MM    M.P. PELLONPÄÄ, President

                 N. BRATZA

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 B. CONFORTI

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           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 15 May 1997 by

Wolfgang, Ingrid, Maya and Iris KELLER against Germany and registered

on 29 May 1997 under file No. 36283/97;

     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 applicants are German citizens. The first and the second

applicants, born in 1937 and 1950 respectively, are a married couple.

The third and fourth applicants, born in 1981 and 1980, are their

daughters. The applicants are members of Scientology, a world-wide

organisation with its international headquarters in Los Angeles

(United States of America), and live in Schwabhausen (Germany).

     In the proceedings before the Commission the applicants are

represented by Mr. Douwe Korff, a lawyer and lecturer at Cambridge

University (United Kingdom).

     The facts of the case as submitted by the applicants may be

summarised as follows.

     Members of the Federal Parliament (Bundestag) in Bonn and of the

Parliaments of the Länder discussed repeatedly the question of

Scientology. They warned that Scientology was particularly dangerous

and considered that it did not constitute a church but instead was much

more like a commercial enterprise.

     The Federal Government and the Governments of the Länder adopted

joint strategies with a view to reducing the influence of Scientology

organisations. In various Länder measures were taken to reduce the

influence of Scientology and to warn of its dangers.

     The Government of the Land of Bavaria ordered schools to inform

pupils of all ages and their parents about the goals, strategies and

operating procedures of Scientology.

     In April 1996, the Bavarian Ministry of Education (Bayerisches

Staatsministerium für Kultus, Wissenschaft und Kunst) published in the

issue of the magazine Schulreport (school report) of April 1996

(issue 1/96) on pages 8 to 10 an article entitled "All clear?

Information about Scientology" ("Alles Clear? Informationen über

Scientology"). 90,000 copies of this report were printed and, apart

from 2,200 copies, distributed to Bavarian schools. The article about

Scientology was also used for teaching purposes in Bavarian schools.

     On 23 May and 28 June 1996 the applicants applied to the Munich

Administrative Court (Bayerisches Verwaltungsgericht München) for an

interim injunction (einstweilige Anordnung) restraining the Bavarian

Government (Freistaat Bayern) from disseminating the issue of the

magazine Schulreport of April 1996 and, to the extent it had already

been disseminated, from any longer using it for teaching purposes or

making it accessible to others. Subsidiarily they requested an order

restraining the dissemination of this article with the inclusion of

various passages quoted by them, including the following:

     "With a crude mixture of science fiction, psychoanalysis and

     manipulative practices of totalitarian systems members of

     Scientology are made dependent and their financial and working

     capacities are systematically exploited.

     Scientology uses techniques of mental control based on deception

     and manipulation.

     Recognising a Scientology member:

     In some cases the behaviour of a person changes as a result of

     the mind control exercised over a period of several months, more

     typically however within a few days or weeks. Interestingly, the

     members develop towards a standard personality (standardisation

     of personality attributes of the sect members). From the physical

     point of view the following signs are identified as the result

     of membership of the sect: a change in weight (corpulence,

     anorexia), loss of strength, altered beard-growth, exhaustion

     syndrome and psychosomatic illness. Psychological effects are

     manifested, inter alia, in a narrowing and weakening of the

     process of thinking (differentiation of language and metaphors

     or irony, replaced by the use of sect-internal cliches), in the

     changing of the emotional state, in strong changes of emotions

     and in non-characteristic anti-social behaviour. The occurrence

     of hallucinations can also be observed, because daily excessive

     auditing can make a person psychologically and physically

     addicted to this psycho-technique. This often has damaging side-

     effects, such as lowering of cognitive abilities, for example

     weak concentration and decision-making. A radical change of

     personality is the most revealing sign that a totalitarian group

     is at work. ..."

     The applicants also refer to comic-strip pictures drawn by

schoolchildren and reproduced on page 9 with the title "Scientology"

and on page 10 with the title "Scientology No!"

     In their submissions to the Munich Administrative Court the

applicants argued in particular that the article about Scientology

violated the constitutional requirement of State neutrality in matters

of religion and that the article was not factual and offensive.

     On 29 July 1996, the Munich Administrative Court rejected the

applicants' request on the ground that the applicants were not

personally affected by the contested passages and pictures which did

not concern all the members of the Scientology organisation. The court

pointed out that Scientology was an organisation which - according to

information in the contested article - had approximately eight million

members world-wide. It was therefore an indeterminable group of

persons, with regard to which negative statements, which were not

directed at individually determinable members, were lost in the general

multitude of persons, and which therefore did not have any concrete

effect on individual members. The court further noted that some of the

passages invoked by the applicants had not been quoted correctly.

     On 20 August 1996, the applicants appealed against this decision.

They submitted detailed reasons for the appeal on 27 August 1996 and

made supplementary submissions on 10 September 1996. The applicants

again argued that the article violated their human rights, and more

specifically their right as parents to educate their children in

accordance with their beliefs, and insofar as their rights as children

were concerned, the right of children to respect for their religious

beliefs.

     On 27 September 1996, the Bavarian Administrative Court of Appeal

(Bayerischer Verwaltungsgerichtshof) dismissed the appeal.

     The court, relying on rulings by various German courts, including

the Federal Constitutional Court (Bundesverfassungsgericht), the

Federal Court of Justice (Bundesgerichtshof) and the Federal

Administrative Court (Bundesverwaltungsgericht), dealt in some detail

with the German legal approach to the question of when an individual

can be regarded as being directly affected (unmittelbar betroffen) by

a general statement about a group. The court stated, inter alia:

     "When defamatory statements are made about a group the latter can

     have a right to apply for a restraining injunction

     (Unterlassungsanspruch). This is to be distinguished from the

     legal position of a member of the group who seeks an injunction

     prohibiting specific statements, not on behalf of the group, but

     who claims that his individual rights have been affected. The

     larger the group is, to which the negative statement relates, the

     less the individual member may be personally affected, because

     negative statements about large groups mostly concern not

     individual wrongdoing or individual characteristics of the

     members, but rather the worthlessness, in the view of the person

     making the statements, of the collective and its social functions

     as well as the associated behavioural demands of the members. On

     the imaginary scale, at one end of which stands the individual

     defamation of a named or identifiable single person, one can find

     at the other end the negative value-judgmental statement about

     human characteristics in general, or criticism of social bodies

     or matters, which are no longer capable of affecting the honour

     of the individual (cf. BVerfG NJW 1995, 3303/3306). Someone who

     wants to make a negative statement about a group, is however in

     principle also responsible for avoidable effects of his

     statements on the honour of a person who, while not as such

     intended to be the target of the attack, nonetheless comes in the

     way of the attack (cf. BGH NJW 1982, 1805). The intention of the

     publisher of the magazine "Schulreport", to inform about and warn

     against the Scientology Organisation, therefore does not

     necessarily preclude that the claimants were individually

     affected. These could however only demand an injunction against

     certain statements to the extent that these statements - at least

     also - directly affect their strictly personal legal position

     (cf. BGH NJW 1980, 1790; BVerwG DÖV 1984, 940 concerning the

     appeal against the prohibition of an association). It does not

     suffice if they are merely indirectly affected. The criminal law

     protection of the honour and the civil law protection of the

     personality have been limited with regard to persons who might

     be defamed as an indirect result of a statement directed at

     someone else, in order not to destroy the system rights regarding

     the protection of personal integrity (BGH NJW 1980, 1790). The

     situation concerning the protection of personal integrity in

     public law can be no different. If a pejorative statement is made

     about a group, then a member of the group can only seek a remedy

     against this in his own name, when the statement involves a

     criterion which is manifestly applicable to all the members of

     the group (cf. BayObLG NJW 1990, 1724; BayVGH NVwZ 1994, 787;

     BayVBl 1995, 564).

     The Administrative Court of Appeal examined the various

statements about Scientology and Scientologists in the article

specifically criticised by the applicants, but concluded that these all

concerned Scientology as an organisation or group, and could not be

said to have directly affected the applicants. According to the court,

it had moreover not been claimed that the children had been directly

confronted with the article in the schoolteaching they received, or

that this was likely in the immediate future.

     On 30 October 1996, the applicants lodged a constitutional appeal

with the Federal Constitutional Court. They stressed that injunctive

relief was the only effective remedy in cases concerning the education

of children, since proceedings in the main action would last for a long

period, and would not be terminated until the children had finished

their school education.

     On the article itself, the applicants submitted that the

depiction of Scientologists as standard personalities with

characteristics such as obesity/anorexia, loss of strength and altered

beard-growth, whose thinking processes were narrowed and weakened, and

who were held up as conditioned and brain-washed "zombies" without free

will, as well as the assessment of the applicants' beliefs as "a crude

mixture of science fiction, psychoanalysis and manipulative practices

of totalitarian systems" was not a neutral, factual, true and tolerant

informing of schoolchildren.

     The applicants further argued that they were directly affected

by the contested article, because, like all Scientologists, they were

depicted as victims of manipulation, mind control and indoctrination,

and as mentally inferior human beings. Their capacity to think for

themselves was denied, and their religious beliefs were derided.

According to them, the State, through the publication of the article,

directly attempted to indoctrinate teachers and school-children, by

creating fear and panic. The educational environment of their daughters

was no longer characterised by tolerance and peaceful coexistence but

by hatred and exclusion. The parents had to fear for an estrangement

from their children, under the influence of the State. They emphasised

that the article prejudiced their rights as parents to ensure the

education and teaching of their children in conformity with their own

religious and philosophical convictions and of the children's right to

be educated in an environment that was open and tolerant towards their

beliefs.

     Sitting as a panel of three members, on 19 November 1996 the

Federal Constitutional Court declined to accept the case for

adjudication.

COMPLAINTS

     The applicants complain that they do not have any remedy against

the information campaign conducted by the Bavarian authorities and more

specifically that they have been denied an effective remedy against the

dissemination and promotion of a highly defamatory article in the

magazine Schulreport, which was the centre-piece of the overall

governmental campaign against Scientology and its members. The

applicants maintain that they are victims of a violation of their right

to freedom of thought, conscience and religion, and the first and

second applicant of their right to ensure the education and teaching

of their children in conformity with their own religious and

philosophical convictions.

     Referring to the cases of Klass and Malone (Eur Court HR, Klass

and others v. Germany judgment of 6 September 1978, Series A no. 28;

Malone v. United Kingdom judgment of 2 August 1984, Series A no. 82),

they consider themselves to be directly affected by the campaign

directly targeted at a specific minority community, in the course of

which the members of that community were described as either brain-dead

zombies or demonic manipulators of enslaved victims. In their village

they are targeted and ostracised. In "enlightenment" evenings and

citizen's initiatives against Scientology they are denounced by name

and their house is referred to in the local press as a lair of

Scientologists.

     The applicants allege a violation of Article 9 of the Convention

and of Article 2 of Protocol No. 1. They also invoke Article 13 of the

Convention.

THE LAW

1.   The applicants complain that they are the victims of the

information campaign in Bavaria concerning Scientology and in

particular of an article published in the April 1996 issue of the

magazine Schulreport on this organisation. They submit that the article

constitutes a direct attack - couched in prejudiced and unnecessarily

offensive terms - on the peaceful enjoyment of their right to thought,

conscience and religion as guaranteed by Article 9 (Art. 9) of the

Convention.

     The applicants also complain that the contested article was

expressly intended to inculcate in all Bavarian schools an atmosphere

of rejection and of intolerance towards the religious beliefs of the

first and second applicant and affected their right as parents to

ensure the education and teaching of their children in accordance with

their own religious and philosophical convictions, as guaranteed by

Article 2 of Protocol No. 1 (P1-2).

     The Commission has first examined to what extent the conditions

laid down in Article 25 para. 1 (Art. 25-1) of the Convention have been

met in the present case.

     Article 25 para. 1 (Art. 25-1) of the Convention provides:

     "The Commission may receive petitions addressed to the Secretary

     General of the Council of Europe from any person, non-

     governmental organisation or group of individuals claiming to be

     the victim of a violation by one of the High Contracting Parties

     of the rights set forth in this Convention, provided that the

     High Contracting Party against which the complaint has been

     lodged has declared that it recognises the competence of the

     Commission to receive such petitions. ..."

     The Commission recalls that, in order for applicants to be able

to avail themselves of this provision, they must fulfil two conditions:

they must fall into one of the categories of applicants referred to in

that provision and they must be able to claim to be a victim of a

violation of the Convention.

     As regards the first condition, the Commission notes that the

applicants, as private persons, clearly fall into the categories of

applicants mentioned in Article 25 (Art. 25) of the Convention.

     As for the second condition, the Commission recalls that the

concept of "victim" as used in Article 25 (Art. 25) of the Convention

must be interpreted autonomously and independently of concepts of

domestic law.

     The Commission further recalls that an applicant cannot claim to

be the victim of a breach of the rights or freedoms protected by the

Convention unless there is a sufficiently direct connection between the

applicant as such and the injury he maintains he suffered as a result

of the alleged breach (No. 10733/84, Dec. 11.3.85, D.R. 41, p. 211).

     The Commission observes that the article complained of contains

information about Scientology and members of this world-wide

organisation in general and is not aimed at any identifiable person

belonging to that organisation. Although the applicants refer to the

negative attitude of their neighbourhood and the local press towards

them, the Commission finds that there is no indication in the file that

this conduct is a result of the information disseminated about

Scientology, in particular of the article complained of. The Commission

therefore finds that the effects of the contested measures are of a too

indirect and remote nature as to affect the applicants' rights under

Article 9 (Art. 9) of the Convention.

     Furthermore, there is no indication in the case file that the

first and second applicant's children have ever been confronted in the

schoolteaching they received with the contested article or that they

risk being subjected to indoctrination that might be considered as not

respecting parents' religious and philosophical convictions (see Eur.

Court HR, Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of

7 December 1976, Series A no. 23, p. 26, para. 53).

     It follows that this part of the application is incompatible

ratione personae with the provisions of the Convention, within the

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

2.   The applicants finally complain under Article 13 (Art. 13) of the

Convention that they do not have any remedy against the information

campaign of the German authorities and that they have been denied an

effective remedy against the dissemination of the contested article.

      Article 13 (Art. 13) reads as follows:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy before a

     national authority notwithstanding that the violation has been

     committed by persons acting in an official capacity."

     However, the Commission recalls that Article 13 (Art. 13) of the

Convention has no application where, as in the present case, the main

complaint is outside the scope of the Convention (see No. 9984/82, Dec.

17.10.85, D.R. 44, p. 54).

     It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention, 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