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AS TO THE ADMISSIBILITY OF

Application No. 34889/97

by Karl-August HENNICKE

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

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 3 November 1996

by Karl-August HENNICKE against Germany and registered on

12 February 1997 under file No. 34889/97;

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 applicant, born in 1927, is a German national and resident in

Baden-Baden.

The applicant's previous Application No. 20564/92 concerning the

Treaty on the Frontier between Germany and Poland was declared

inadmissible in 1992.

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

be summarised as follows.

On 22 March 1996 the Baden-Baden District Court (Amtsgericht)

convicted the applicant of two counts of incitement to hatred

(Volksverhetzung), pursuant to S. 130 para. 1 of the German Penal Code

(Strafgesetzbuch), and imposed a fine amounting to DEM 6,000.

S. 130 para. 1 of the Penal Code provides that anybody who

incites to hatred, or violence or arbitrary acts, against parts of the

population in such a manner as to disturb the public peace shall be

punished by imprisonment for a term of three months to five years.

The District Court found that in June 1995 the applicant had

distributed numerous copies of a brochure edited by him in a public

park in Baden-Baden. The District Court noted the contents of the

brochure and found that it contained poems on his beliefs regarding the

superiority of "higher races" and the inferiority of aliens, whom he

compared to leeches, and that there could be no peace as long as Jews

held power in this world. He had thereby incited to hatred against

foreigners and Jews in general.

On 4 June 1996 the Baden-Baden Regional Court (Landgericht)

dismissed the applicant's appeal (Berufung). Following a full trial,

the Regional Court established that the applicant had distributed a

brochure containing publications in which, further to the above poems,

he had published poems complaining about the punishment in respect of

statements denying the gassing of Jews in Auschwitz, about Germany

being kept in Jewish and foreign slavery and condemned to serve

Israel. The Regional Court considered that the right to freedom of

expression did not entitle a person to commit the offence of incitement

to hatred, which was intended to protect the public peace.

On 4 September 1996 the Karlsruhe Court of Appeal (Oberlandes-

gericht) dismissed the applicant's appeal on points of law (Revision).

On 21 October 1996 the Federal Constitutional Court

(Bundesverfassungsgericht) refused to entertain his constitutional

complaint (Verfassungsbeschwerde).

COMPLAINTS

The applicant complains under Article 10 of the Convention about

his conviction by the Baden-Baden District Court of 22 March 1996, as

confirmed by the Regional Court and the Court of Appeal on 4 June and

4 September 1996, respectively.

THE LAW

The applicant complains about his conviction of incitement to

hatred. He invokes Article 10 (Art. 10) of the Convention.

Article 10 (Art. 10), 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 prevention

of disorder or crime, ... for the protection of the reputation

or rights of others ..."

The Commission considers that the impugned measure was an

interference with the applicant's exercise of his freedom of

expression, which was justified under paragraph 2 of Article 10

(Art. 10-2).

The interference was "prescribed by law", namely S. 130 of the

Penal Code. This provision is accessible to the general public, and,

taking into account the case-law of the German courts on questions of

incitement to hatred, the consequences of his conduct were clearly

foreseeable to the applicant.

The interference also pursued a legitimate aim under the

Convention, i.e. "the prevention of disorder and crime" and the

"protection of the reputation or rights of others".

As to the test of necessity, the Commission, having regard to the

criteria established in the case-law of the Convention organs

(cf. Eur. Court HR, Observer and Guardian v. United Kingdom judgment

of 26 November 1991, Series A no. 216, pp. 29-30, para. 59), finds that

the provision of the Penal Code at issue, and their application in the

present case, aimed to secure the peaceful coexistence of the

population in the Federal Republic of Germany. In this context, the

Commission further recalls that Article 17 (Art. 17) prevents a person

from deriving from the Convention a right to engage in activities aimed

at the destruction of any of the rights and freedoms set forth in the

Convention. (cf. No. 12194/86, Dec. 12.5.88, D.R. 56, p. 205;

No. 25096/94, Dec. 6.9.95, D.R. 82, p. 117; No. 25992/94, Dec. 29.11.95

and No. 26521/95, Dec. 26.6.96 - unpublished).

As regards the circumstances of the present case, the Commission

notes the detailed findings of the District Court and the Regional

Court as to the contents of the applicant's brochure in which he had

attempted to incite to hatred against foreigners and Jews. The

Commission finds that the applicant's publication ran counter to one

of the basic ideas of the Convention, as expressed in its preamble,

namely justice and peace, and further reflected racial and religious

discrimination. The public interests in the prevention of crime and

disorder in the German population due to incitement to hatred against

foreigners and Jews, and the requirements of protecting their

reputation and rights, outweigh, in a democratic society, the

applicant's freedom to impart opinions such as those contained in the

brochure at issue (see also No. 9235/81, Dec. 16.7.82, D.R. 29, p. 194;

No. 25096/94, Dec. 6.9.95, loc. cit).

In these circumstances, there were relevant and sufficient

reasons for the applicant's conviction, which can, therefore, be

considered "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 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 J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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HENNICKE v. GERMANY

HENNICKE v. GERMANY

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