Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29045/95

by Horst MAHLER

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 14 January 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. MARXER

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 14 September 1995

by Horst MAHLER against Germany and registered on 2 November 1995 under

file No. 29045/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

16 April 1997, supplementary observations on 27 June 1997 and the

observations in reply submitted by the applicant on 23 May 1997

and 28 July 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1936, is a German national and resident

in Berlin. He is a lawyer by profession.

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

summarised as follows.

On 16 May 1994 the Berlin Tiergarten District Court (Amtsgericht)

convicted the applicant of insult, pursuant to S. 185 of the German

Penal Code (Strafgesetzbuch) and imposed a fine of DM 2,700 upon him.

According to S. 185 of the Penal Code, insult (Beleidigung) is

an offence punishable with a maximum of one year's imprisonment or a

fine.

The District Court found that the applicant had assisted the

accused Mr. S. in criminal proceedings pending before the Berlin

Regional Court. The bill of indictment, comprising more than

500 pages, had contained one unintelligible sentence, namely that the

applicant had included in a letter of September 1988 a bill dated

May 1990. The applicant, having the impression that the public

prosecutor Mr. B. who had drafted the bill of indictment, was biased

against his client Mr. S. and himself, inter alia lodged various

requests for the taking of evidence. On 12 August 1993, at the trial

before the Regional Court, the applicant had deliberately, and not

subject to a sudden emotion, stated that the Public Prosecutor Mr. B.

had apparently drafted the bill of indictment "in a state of complete

intoxication" ("im Zustand der Volltrunkenheit"). He had further

explained at this hearing that his statement concerned the whole bill

of indictment and that the above-mentioned sentence was only one

particular example.

The District Court considered that the applicant, according to

his own statements, had been aware that he had attacked the

professional reputation of Mr. B. With his statement the applicant had

gone beyond the limits of his right to freedom of expression. While

public officials such as public prosecutors had to accept even harsh

criticism, such remarks had to be made in an appropriate manner. At

a trial, a defence counsel was entitled to raise objective criticism

as to the performance of the competent public prosecutors. However he

must not claim that the person concerned performed his work in a state

of "intoxication", either due to alcohol or under the influence of an

excessive fanaticism in prosecuting the defendant. The remark

concerned was not justified for the protection of the defendant or the

applicant's rightful interests (Wahrnehmung berechtigter Interessen),

but it could only result in straining the atmosphere at the trial. To

the extent that the applicant had been of the opinion that the public

prosecutors had acted unlawfully, he could have laid charges against

them.

On 17 August 1994 the Berlin Regional Court (Landgericht)

rejected the applicant's appeal (Berufung) on the ground that it was

obviously ill-founded. The Regional Court, having regard to all the

material before it, found the trial court's findings convincing.

On 27 February 1995 the Federal Constitutional Court

(Bundesverfassungsgericht) refused to entertain the applicant's

constitutional complaint (Verfassungsbeschwerde). He received the

decision on 24 March 1995.

COMPLAINT

The applicant complains under Article 10 of the Convention about

his conviction of insult by the Tiergarten District Court on

16 May 1994, as confirmed by the Regional Court on 17 August 1994. He

considers that the incriminated statement was no more than a criticism

concerning Mr. B.'s performance. In his observations of 23 May 1997,

the applicant also invokes Article 7 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 September and registered on

2 November 1995.

On 27 November 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

16 April 1997. The applicant replied on 23 May 1997. The Government's

supplementary observations were submitted on 27 June 1997. The

applicant replied on 28 July 1997.

THE LAW

The applicant complains under Article 10 (Art. 10) of the

Convention that his conviction of insult infringed his right to freedom

of expression.

Article 10 (Art. 10) of the Convention, as far as relevant,

provides:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority ...

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, ... for the protection

of the reputation or rights of others ..."

The Government maintain that the applicant's complaint is

manifestly ill-founded.

The Commission notes that on 16 May 1994 the Berlin Tiergarten

District Court convicted the applicant of insult on the ground that,

in his position as defence counsel in a hearing before another criminal

court, he had deliberately, and not subject to a sudden emotion, stated

that the Public Prosecutor Mr. B. had apparently drafted the bill of

indictment "in a state of complete intoxication", and that he had also

explained that his statement concerned the whole bill of indictment.

In this respect, the District Court had noted that the rather lengthy

bill of indictment had indeed contained one unintelligible sentence.

The Commission finds that this measure constituted an

interference with the exercise of the applicant's freedom of

expression. Such interference is in breach of Article 10 (Art. 10),

unless it is justified under paragraph 2 of Article 10 (Art. 10-2),

i.e. it must be "prescribed by law", have an aim or aims that is or are

legitimate under Article 10 para. 2 (Art. 10-2) and be "necessary in

a democratic society". This is not in dispute between the parties.

The legal basis of the interference under consideration was

S. 185 of the Penal Code.

The applicant considers that this provision is too vague and does

not provide a sufficient legal basis for a conviction. In this

respect, he also relies on Article 7 (Art. 7) of the Convention. The

Government object to his views and explain that the field of

application of S. 185 of the German Penal Code has been clarified in

the framework of a comprehensive case-law.

The Commission has examined the question of the lawfulness of the

applicant's conviction with due regard to Article 7 para. 1 (Art. 7-1),

first sentence, of the Convention, which reads as follows:

"No one shall be held guilty of any criminal offence on account

of any act or omission which did not constitute a criminal

offence under national or international law at the time when it

was committed."

The Commission recalls that, in the field of criminal law,

Article 7 para. 1 (Art. 7-1) confirms the general principle that legal

provisions which interfere with individual rights must be adequately

accessible, and formulated with sufficient precision to enable the

citizen to regulate his conduct (cf. Eur. Court HR, Sunday Times v.

United Kingdom judgment of 26 April 1979, Series A no. 30, p. 31,

para. 49; Kokkinakis v. Greece judgment of 25 May 1993, Series A no.

260-A, p. 22, para. 52). Article 7 para. 1 (Art. 7-1) prohibits in

particular that existing offences be extended to cover facts which

previously clearly did not constitute a criminal offence (cf. No.

6683/74, Dec. 10.12.75, D.R. 3, p. 95; No. 8710/79, Dec. 7.5.82, D.R.

28, p. 77; No. 13079/87, Dec. 6.3.89, D.R. 60, p. 256).

The German Courts found that the applicant's conduct constituted

the offence of insult within the meaning of S. 185 of the Penal Code.

The Commission considers that in the field of conduct governed by the

afore-mentioned provision, no absolute precision in the framing of the

law can be achieved. Rather, the courts enjoy some discretion in

interpreting and applying such general notions (cf. Eur. Court HR,

Sunday Times judgment, loc. cit.). In the present case, the competent

courts could reasonably conclude that the applicant's conduct

constituted the criminal offence of insult within the meaning of S. 185

of the Penal Code. The applicant, a practising lawyer acquainted with

the general legal practice in this field, could clearly foresee the

risk of punishment.

The interference complained of was, therefore, prescribed by law,

for the purposes of Article 10 para. 2 (Art. 10-2), without there being

any indication of a violation of Article 7 para. 1 (Art. 7-1) of the

Convention.

Moreover, the decisions complained of aimed to protect "the

reputation or rights of others", namely the Public Prosecutor Mr. B.,

which is a legitimate aim under Article 10 para. 2 (Art. 10-2).

It remains to be determined whether the interference complained

of was "necessary in a democratic society" and proportionate to the

legitimate aim pursued.

The arguments advanced by the parties further concerned the

question of the necessity of the interference.

The applicant submits that the impugned statement, even if

exaggerated, was a criticism of the public prosecutor's performance and

should not have given rise to criminal prosecution.

The Government, having regard to the principles established in

the case-law of the Convention organs, submit that the applicant's

comment was made in criminal proceedings which were of no public

significance. The applicant's comment was made in the context of a

trial hearing. Even if it is in principle permissible to criticise the

performance of public servants such as public prosecutors, higher

demands are made as to the form of such criticism if it is raised in

court, in particular if such a comment is not made spontaneously, but

after due consideration. Thus the applicant was not convicted for his

criticism of the bill of indictment as such, but for having personally

insulted the public prosecutor.

The Commission recalls that the notion of necessity implies a

pressing social need. The Contracting States enjoy a margin of

appreciation in this respect, but this goes hand in hand with a

European supervision which is more or less extensive depending on the

circumstances. In reviewing under Article 10 (Art. 10) the decisions

taken by the national authorities pursuant to their power of

appreciation, the Convention organs have to determine, in the light of

the case as a whole, whether the reasons adduced by them to justify the

interference are "relevant and sufficient" (cf. Eur. Court HR, Sunday

Times (no. 2) v. United Kingdom judgment of 26 November 1991, Series

A no. 217, pp. 28-29, para. 50; Worm v. Austria judgment of 29 August

1997, Reports 1997-V, no. 45, para. 47).

In the present case, the applicant's conviction of insult related

to his remark, in his position as defence counsel at a court hearing,

that the public prosecutor concerned had drafted the bill of indictment

"in a state of complete intoxication". The District Court, in a

detailed reasoning, considered the context of the criminal proceedings

and the court hearing at which the incriminated remark had been made.

It noted in particular that the applicant had made the remark

deliberately and not subject to a sudden emotion and had been aware

that he was thus attacking the professional reputation of the public

prosecutor concerned. Weighing the applicant's right to freedom of

expression against the interest in protecting the public prosecutor's

professional reputation, the District Court concluded that the

applicant had gone beyond the limits of acceptable, even harsh

criticism. These findings were confirmed by the Berlin Regional Court

and the Federal Constitutional Court saw no reasons to entertain the

applicant's constitutional complaint.

The Commission recalls that it has declared inadmissible similar

cases under Article 10 (Art. 10) concerning insulting remarks made by

lawyers about judges in the context of court proceedings. In these

cases the Commission, having particular regard to the detailed

reasoning given by the domestic courts and the balance struck by them

between the lawyer's concern to protect the interests of his client and

the need to protect the reputation and rights of the judges concerned,

found that the interference with the respective applicant's right to

freedom of expression had, in the circumstances of these cases, been

"necessary" within the meaning of Article 10 para. 2 (Art. 10-2) of the

Convention (cf. No. 30549/96, Meister v. Germany, Dec. 10.4.97; No.

30339/96, Bossi v. Germany, Dec. 15.4.97; No. 26602/94, Ratt v.

Austria, Dec. 30.6.97, all unpublished).

In the present case, the Commission finds that the District Court

duly balanced the applicant's right, in pursuing his functions as

defence counsel, to criticise a public prosecutor involved in the

criminal proceedings against his client, or to raise charges about

possibly unlawful conduct of prosecution authorities, against the

necessity, in a democratic society, to protect the reputation and

authority rights of others, here the Public Prosecutor Mr B., against

insult. Having regard to the general professional duties of lawyers

and considering the impugned statement, the Commission finds that there

were relevant and sufficient reasons to impose a fine upon the

applicant for insult. This sanction, i.e. a fine amounting to

DEM 2,700, does not appear disproportionate to the legitimate aim

pursued.

In these circumstances, the interference complained of can be

regarded as "necessary in a democratic society" within the meaning of

Article 10 para. 2 (Art. 10-2) of the Convention. Accordingly, there

is no appearance of a violation of the applicant's right under Article

10 (Art. 10) of the Convention.

It follows that this part of 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

Menu

MAHLER v. GERMANY

MAHLER v. GERMANY

LEXI