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AS TO THE ADMISSIBILITY OF

Application No. 25992/94

by Nationaldemokratische Partei Deutschlands,

Bezirksverband München-Oberbayern

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 13 October 1994

by Nationaldemokratische Partei Deutschlands, Bezirksverband München-

Oberbayern against Germany and registered on 19 December 1994 under

file No. 25992/94;

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 facts, as they have been submitted by the applicant, may be

summarised as follows.

The applicant is the Munich-Upper Bavaria regional organisation

(Bezirksverband) of a political party in Germany. In the proceedings

before the Commission the applicant organisation is represented by its

chairman Mr. P.L. Aae, who is resident at Feldkirchen-Westerham.

On 8 May 1991 the Munich Municipality, acting under the Assembly

Act (Versammlungsgesetz), imposed various duties upon the applicant

organisation in respect of a conference organised on the subject

"Germany's future in the shade of political extortion?", scheduled for

the early afternoon of 12 May 1991. The applicant organisation was

ordered to take the appropriate steps to ensure that, on the occasion

of the meeting, the persecution of Jews under the Nazi regime was not

denied or called into question. In particular, it was ordered to

remind the participants, at the beginning of the meeting, of the

criminal liability which such statements could incur under the relevant

provisions of the Penal Code (Strafgesetzbuch) relating to incitement

to hatred, insult or defiling the memory of the dead. Furthermore, the

applicant organisation was ordered to stop any such statements

immediately and, if necessary, to interrupt or terminate the meeting.

The Municipality also decided that an appeal against its above order

should have no suspensive effect.

In its decision, the Municipality noted that the applicant

organisation, in a local as well as in a supra-regional party

publication, had issued invitations to the above-mentioned meeting,

indicating that the "well-known revisionist historian" Mr. D. Irving

would attend it and comment on the question "whether the Germans and

their European neighbours could further afford to accept the

`contemporary history' as means of extortion". The Municipality

considered that, taking into account the text of the invitation, the

general views held by Mr. Irving as well as correspondence exchanged

between him and the applicant organisation in the preparation of the

meeting, there was a high risk that the above-mentioned criminal

offences be committed on the occasion of the meeting. The Municipality

also observed that, when heard on 7 May 1991 on the issue, Mr. Aae had

not been able to dissipate the said suspicion.

On 10 May 1991 the applicant organisation lodged an

administrative appeal (Widerspruch).

The meeting took place on 12 May 1991.

On 9 August 1991 the Government of Upper Bavaria rejected the

administrative appeal in view of the lapse of time. The costs of the

proceedings were awarded against the applicant organisation on the

ground that the appeal would have been unsuccessful.

On 9 September 1992 the Munich Administrative Court

(Verwaltungsgericht) dismissed the request of the applicant

organisation for a finding that the decision of 8 May 1991 had been

unlawful (Fortsetzungsfeststellungsklage). The Administrative Court

found that the decision in question had been lawful and had not,

therefore, violated any rights of the applicant organisation.

The Administrative Court noted that S. 5 (4) of the Assembly Act

allowed for the prohibition of an assembly if there were reasons to

believe that the organiser of the assembly or supporters would make

statements or accept statements made by others which constituted a

criminal offence. This provision would also allow for more lenient

measures such as the obligations imposed upon the applicant

organisation. The Court found that at the relevant time the conditions

under S. 5 (4) had been met as regards the assembly organised by the

applicant organisation. In this respect, the Court argued in detail

that a person denying the persecution of Jews under the Nazi regime was

not covered by the right to freedom of expression but committed

criminal offences and that such statements were likely to be made on

the meeting organised by the applicant organisation.

On 30 June 1993 the Bavarian Administrative Court of Appeal

(Verwaltungsgerichtshof) dismissed the appeal (Beschwerde) of the

applicant organisation. The Court of Appeal confirmed the

Administrative Court's reasoning and in particular that there had been

a real risk that statements constituting criminal offences be made at

the meeting in question. The Court of Appeal did not grant leave to

appeal to the Federal Administrative Court (Bundesverwaltungsgericht).

On 19 November 1993 the Federal Administrative Court refused the

request of the applicant organisation for leave to appeal (Nicht-

zulassungsbeschwerde).

On 13 April 1994 the First Senate of the Federal Constitutional

Court dismissed the constitutional complaint (Verfassungsbeschwerde)

of the applicant organisation as obviously ill-founded. The

Constitutional Court considered that the decision of 8 May 1991 as well

as the ensuing administrative and court decisions, obliging the

applicant organisation to ensure that at the meeting the persecution

of Jews under the Nazi regime was not denied or put into question, did

not amount to a violation of the right to freedom of expression. The

Constitutional Court observed that the applicant organisation had not

challenged the prognosis made by the Munich Municipality and later

confirmed by the administrative courts that there had been a risk of

such statements, but rather claimed the right to make such statements.

The Constitutional Court found that the denial of the persecution of

Jews under the Nazi regime was an untrue statement of fact and referred

in this respect to the countless testimonies of eye-witnesses and

documents, the findings of criminal courts in numerous criminal

proceedings and the findings of historical science. Such statements

were not protected.

The Constitutional Court further stated that, even assuming a

restriction of the freedom of expression regarding the whole meeting,

the impugned decision could not be objected to under constitutional

law. The decision concerned had been based on the Assembly Act. There

had been no violation of the right to freedom of assembly. Moreover,

the obligations imposed upon the applicant organisation related to

statements involving criminal liability and aimed at preventing them.

The general risks for the right to freedom of expression inherent in

preventive measures could be balanced by strict requirements as to the

prognosis of such punishable statements. These requirements were met

with regard to the challenged decisions. In particular, the relevant

provisions of the Assembly Act and the Penal Code, as interpreted by

the Federal Court of Justice (Bundesgerichtshof) in accordance with the

constitutional provisions, had been correctly applied in the instant

case.

COMPLAINTS

The applicant organisation complains under Article 10 of the

Convention about the decision of the Munich Municipality of 8 May 1991,

as confirmed by the German courts, imposing obligations upon the

applicant organisation to prevent statements denying, or putting into

question, the persecution of Jews under the Nazi regime. The applicant

organisation asserts in particular that statements denying the

persecution of Jews under the Nazi regime, in particular the denial of

the existence of gas chambers were protected by the Convention as

statements or opinions relating to contemporary history. In this

respect, the applicant organisation maintains that, according to

scientific research, the gas chambers in Auschwitz were not authentic.

However, the German authorities had incorrectly linked the obligations

imposed upon the applicant organisation to such statements, although

the subject of the meeting was a critical discussion of anti-German

atrocity propaganda and its importance in the political and

psychological manipulation.

THE LAW

The applicant organisation complains about the decision of the

Munich Municipality of 8 May 1991, as confirmed by the German courts,

imposing obligations in respect of a meeting organised by the applicant

organisation. The applicant organisation invokes Article 10

(Art. 10) of the Convention.

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

relevant:

"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 constituted

an interference with the exercise, by the applicant organisation, of

the right to freedom of expression in respect of the preparation and

conduct of a political meeting. Such interference is in breach of

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

Article 10, 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 interference was "prescribed by law", namely the relevant

provisions of the Assembly Act and the Penal Code. These provisions

are accessible to the general public, and, taking into account the

case-law of the German courts on questions of incitement to hatred and

insult, the criminal nature of statements amounting to a denial of the

persecution of Jews was clearly foreseeable to the applicant

organisation.

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". It remains to be

ascertained whether the interference can be regarded as having been

"necessary in a democratic society".

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 and to what extent an interference

is necessary, but this margin goes hand in hand with a European

supervision. Thus the measures taken at national level must be

justifiable in principle and proportionate (cf. European Court H.R.,

Observer and Guardian judgment of 26 November 1991, Series A no. 216

pp. 29-30, para. 59).

The Commission finds that the provisions of the Penal Code at

issue, to which the Assembly Act referred, and their application in the

present case, aimed to secure the peaceful coexistence of the

population in Germany. The Commission therefore has also had regard

to Article 17 (Art. 17) of the Convention. This provision reads as

follows:

"Nothing in this Convention may be interpreted as implying for

any State, group or person any right to engage in any activity

or perform any act aimed at the destruction of any of the rights

and freedoms set forth herein or at their limitation to a greater

extent than is provided for in the Convention."

Article 17 (Art. 17) accordingly 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, inter alia the right to freedom of expression under

Article 10 (Art. 10) (cf. No. 12194/86, Dec. 12.5.88, D.R. 56 p. 205).

As regards the circumstances of the present case, the Commission

has carefully examined the findings of the Municipal Office in its

decision of 8 May 1991 as regards the risk that statements constituting

criminal offences would be made in the course of the meeting organised

by the applicant organisation. The applicant organisation, in the

domestic proceedings as well as in the proceedings before the

Commission did not argue that there was no such risk. The German

administrative courts and the Federal Constitutional Court, in detailed

decisions, confirmed that the statements at issue were commonly known

untrue factual allegations and not protected by the freedom of

expression. The Constitutional Court also considered the whole of the

intended discussion at the meeting in question and found that the

obligations imposed were lawful and met the stricter requirements as

regards preventive measures.

The Commission finds that statements denying or calling into

question the persecution of Jews under the Nazi regime in the context

of a discussion of "anti-German atrocity propaganda" run counter one

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

namely the foundation of justice and peace.

The public interests in the prevention of crime and disorder in

the German population due to incriminating statements denying the

persecution of Jews under the Nazi regime, and the requirements of

protecting the reputation and rights of Jews, outweigh, in a democratic

society, the freedom of the applicant organisation to hold a meeting

without being obliged to take steps in order to prevent such

statements. In this respect, the Commission took into account that the

Munich Municipality opted for imposing such obligations on the basis

of considerations of proportionality. Moreover, as to the preventive

nature of the interference at issue, the Commission notes the high

probability of punishable statements of the above kind, given the

subject of the discussion and the participation of Mr. Irving.

In these circumstances, there were relevant and sufficient

reasons for the interference concerned. The decision of the Munich

Municipality of 8 May 1991, as confirmed by the administrative courts

and the Federal Constitutional Court, was therefore, "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 organisation'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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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NATIONALDEMOKRATISCHE PARTEI DEUTSCHLANDS, BEZIRKSVERBAND MÜNCHEN-OBERBAYERN v. GERMANY

NATIONALDEMOKRATISCHE PARTEI DEUTSCHLANDS, BEZIRKSVERBAND MÜNCHEN-OBERBAYERN v. GERMANY

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