Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30339/96

by Rolf BOSSI

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 15 April 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

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 6 November 1995

by Rolf BOSSI against Germany and registered on 28 February 1996 under

file No. 30339/96;

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 1923, is a German national and resident

in Munich. He is a lawyer by profession. In the proceedings before

the Commission, he is represented by Mr. E. Eyl, a lawyer practising

in Strasbourg.

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

summarised as follows.

In 1988 Mr. H. was involved in a traffic accident and was

paralysed as a consequence of his serious injuries. Preliminary

investigations on charges of reckless and drunken driving were

instituted against Mr. C., the owner of the car. In 1989 the Niebüll

District Court (Amtsgericht), sitting with the Single Judge R., refused

to commit Mr. C. for trial on the ground that there was not sufficient

evidence against him. Following further investigations, the competent

Prosecutor's Office (Staatsanwaltschaft) preferred a new indictment

against Mr. C. Mr. H., represented by the applicant, applied to

intervene in these criminal proceedings against Mr. C. On 2 July 1992

Judge R. admitted Mr. H. as intervener and again refused to commit

Mr. C. for trial. In the reasoning, it is stated that there was still

no sufficient probability that the accused would be convicted after a

trial, namely that it could be proven that he had driven the car. In

a concluding remark, it was added that "the mere fact that, without a

criminal conviction, the seriously injured intervener could not obtain

from the liability insurance any compensation for his material and

immaterial damages, could not justify to hold doubts against the

accused" ("Denn allein der Umstand, daß der schwergeschädigte

Nebenkläger ohne eine Verurteilung zu keinem Schadensersatz bzw.

Schmerzensgeldanspruch gegenüber dem Haftpflichtversicherer des

Unfallfahrzeuges kommt ..., kann nicht dazu führen, daß die aufgrund

der Beweissituation bestehenden Zweifel zu Ungunsten des

Angeschuldigten berücksichtigt werden.").

The applicant, on behalf of Mr. H., lodged an appeal against the

decision of 2 July 1992. In his written pleadings, the applicant

commented in detail on the reasoning of the decision. He further

raised the question "whether or not the lack of Judge R.'s moral

strength was more or less flagrant as compared to his obvious

incompetence to act as a judge" ("ob der Mangel an charakterlicher

Eignung größer oder kleiner sei als die zutage getretene Unfähigkeit

zur Ausübung des Richteramtes"). Referring to the above-mentioned last

sentence of the decision, he also stated that "District Court Judge

[R.], as a result of his ignorance of the law and of the relevant case-

law, had become the accomplice of the accused" ("[h]ier macht sich der

Richter am Amtsgericht [R.] mangels Kenntnis der Gesetzeslage und der

dazu vorliegenden höchstrichterlichen Rechtsprechung zum Komplizen des

Angeschuldigten").

In January 1993 the Flensburg Regional Court (Landgericht)

quashed the decision of 2 July and ordered that Mr. C. be committed for

trial. In the ensuing proceedings, Mr. C. was convicted of reckless

driving and of having caused bodily harm. He was sentenced to four

months' imprisonment on probation.

On 17 May 1994 the Niebüll District Court convicted the applicant

of insult, pursuant to S. 185 of the German Penal Code

(Strafgesetzbuch) and imposed a fine of DM 3,000 upon him.

The District Court noted the course of the criminal proceedings

against Mr. C. and the contents of the applicant's appeal submissions

of 21 July 1992. The Court found that the applicant had attacked the

reputation of Judge R. in that, firstly, he had raised the question

whether or not the lack of the Judge's moral strength was more or less

flagrant as compared to his obvious incompetence to act as a judge and,

secondly, had stated that District Court Judge [R.], as a result of his

ignorance of the law and of the relevant case-law, had become the

accomplice of the accused.

As regards the applicant's defence that he had acted for the

protection of Mr. H.'s rightful interests (Ausübung berechtigter

Interessen), the District Court considered that the insulting remarks

at issue had been unnecessary and inappropriate. The applicant had not

intended to raise, even harsh, criticism regarding the court decision

of 2 July 1992, but had insulted the Judge concerned. Even if the last

sentence in the said court decision was redundant, it did not amount

to a provocation justifying the insulting remarks.

In fixing the sentence, the District Court found that the

incriminated statements had to be seen against the situation of the

intervener who had not yet received and, as a consequence of the

decision of 2 July 1992, was further refused any compensation payments.

On 11 October 1994 the Flensburg Regional Court dismissed the

applicant's appeal (Berufung). The Regional Court confirmed that the

incriminated statements amounted to insult and were not justified for

the protection of rightful interests. In this respect, the Regional

Court considered that, in the circumstances of the case, the

applicant's remarks did not constitute an appropriate means to protect

his client's interests. Rather, there was a right to appeal against

the decision of 2 July 1992 and the applicant, on behalf of the

intervener, availed himself of this remedy. This remedy was eventually

successful. The applicant was entitled to raise, in his appeal

submissions, harsh criticism regarding the attacked decision and

express his and his client's disappointment and resentment. However,

insulting attacks on the judge's personal integrity were neither

appropriate nor necessary. In this respect, the Regional Court, having

regard to the case-law on the right to freedom of expression,

considered that the applicant's remarks went beyond permissible

criticism.

On 29 March 1995 the Schleswig Court of Appeal (Oberlandes-

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

On 31 August 1995 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to entertain the applicant's constitutional

complaint (Verfassungsbeschwerde). The decision was served on

11 September 1995.

COMPLAINT

The applicant complains under Article 10 of the Convention about

his conviction of insult by the Niebüll District Court on 17 May 1994,

as confirmed by the Regional Court on 11 October 1994 and by the Court

of Appeal on 29 March 1995. He considers that the incriminated

statements in his written pleading of 21 July 1992 did not go beyond

the limits of permissible criticism regarding the competent judge's

performance.

THE LAW

The applicant complains that his conviction of insult by the

Niebüll District Court on 17 May 1994, as confirmed by the Regional

Court on 11 October 1994 and by the Court of Appeal on 29 March 1995,

infringed his right to freedom of expression. He invokes Article 10

(Art. 10) of the Convention which provides as follows:

"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 Commission notes that on 17 May 1994 the Niebüll District

Court found the applicant guilty of insult. The Disciplinary Court

considered that, in written appeal submissions, the applicant had

attacked the reputation of Judge R. The applicant's conviction was

confirmed upon appeal by the Flensburg Regional Court and the Schleswig

Court of Appeal.

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".

The legal basis of the interference under consideration was

S. 185 of the German Penal Code. The interference complained of was,

therefore, "prescribed by law" for the purposes of Article 10 para. 2

(Art. 10-2).

Moreover, the decisions complained of aimed to protect "the

reputation or rights of others", namely the judge affected by the

applicant's statements, 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 Commission recalls that the adjective "necessary" within the

meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a

"pressing social need". The Contracting States have a certain margin

of appreciation in assessing whether such a need exists, but it goes

hand in hand with a European supervision (cf. Eur. Court HR, Observer

and Guardian v. the United Kingdom judgment of 26 November 1991, Series

A no. 216, pp. 29-30, para. 59; see also No. 14622/89, Dec. 7.3.91,

loc. cit.).

The Commission notes that criminal proceedings were conducted

against the applicant for having insulted Judge R. in written appeal

statements relating to criminal proceedings in which he had represented

the victim of the offence.

The Commission considers that both the District Court and the

Regional Court, in detailed reasoning, examined the applicant's

submissions which were considered to be of an insulting nature. The

Courts had regard to the applicant's concern to protect the rightful

interests of his client. However, they considered that the insulting

remarks in question had been unnecessary and inappropriate, and went

beyond permissible criticism. The applicant's constitutional complaint

with the Federal Constitutional Court remained unsuccessful.

The Commission finds that the Courts duly balanced the

applicant's concern to protect the rightful interests of his client and

right to formulate criticism against the necessity, in a democratic

society, to protect the reputation and rights of others, here a judge,

against insult. Having considered the impugned statements, the

Commission finds that there were relevant and sufficient reasons for

the applicant's conviction of insult.

Moreover, the sanction chosen, i.e. a fine amounting to DEM 3,000

does not appear disproportionate to the legitimate aim pursued.

In these circumstances, the interference complained of was

"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 with

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

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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BOSSI v. GERMANY

BOSSI v. GERMANY

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