Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25117/94

by Klaus SPEER

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 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

G.B. REFFI

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 19 May 1994 by

Klaus SPEER against Germany and registered on 12 September 1994 under

file No. 25117/94;

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, born in 1944, is a German national and resident

in Berlin. He is a businessman by profession. In the proceedings

before the Commission he is represented by Mr. H. Mahler, a lawyer

practising in Berlin.

A. Particular circumstances of the case

In 1988 criminal investigations were started against the

applicant and others on the suspicion of fraud and other offences.

On 26 May 1992 the Berlin-Tiergarten District Court (Amtsgericht)

issued an arrest warrant against the applicant who was taken into

detention on remand on 16 June 1992.

On 17 June 1992 the Berlin Public Prosecutor's Office drew up the

bill of indictment against the applicant and further accused, charging

the applicant, inter alia, with fraud on three counts, usury on three

counts, extortion on six counts, extortion with violence and usury,

organisation of an illegal game, illegal possession of arms, tax

evasion, receiving and corruption.

On 7 August 1992 the Berlin Regional Court (Landgericht) ordered

the applicant's continued detention on remand. The applicant's appeal

was to no avail.

In September 1992 a German publishing house published a book on

the role of the Mafia in Europe which inter alia referred to the

applicant.

Thereupon, the applicant, assisted by his counsel, Mr. Mahler,

instituted injunction proceedings before the Berlin Regional Court

(Landgericht) against the publishing house. The applicant requested

that the publishing house be prohibited from repeating various

statements contained in the above-mentioned book according to which he

had a leading role in the world of crime and contacts with other

criminals and was involved in the organised crime.

On 22 October 1992 the Regional Court granted the applicant's

request as regards part of the statements which related to alleged

criminal activities of the applicant, and dismissed the remainder of

the action.

On 9 March 1993 the Berlin Court of Appeal (Kammergericht), upon

the appeal of the publishing house, quashed the Regional Court's

decision and dismissed the applicant's action.

The Court of Appeal observed that according to the case-law in

civil matters, anybody had a right to judicial protection against the

repetition of unlawful statements. However, in this context, the

fundamental right to freedom of expression had to be taken into

account. This right concerned the free expression of opinions and, in

line with recent decisions of the Federal Constitutional Court

(Bundesverfassungsgericht), also possibly factual statements. The

Court of Appeal summarised the case-law of the Federal Constitutional

Court, according to which the free expression of opinions, even those

formulated in a harsh or exaggerated manner, was necessary in the

interest of the individual and was also a constituent element of

democracy. These considerations did not apply to factual statements

in the same way, in particular, there was no protection as to

deliberately imparting untrue statements. As regards other factual

statements, the right to freedom of expression had to be balanced

against inter alia the protection of the reputation and the rights of

others. In the case of statements concerning important matters of

public interest, there was a presumption in favour of the freedom of

expression. Moreover, a particular statement had to be seen against

the general context of a publication.

The Court of Appeal considered that the impugned statements were

made in the context of a book on the problem of organised crime in

Europe and, more particularly, in Germany, and had called for more

efforts in the combat of this crime, which was regarded as an important

danger. The book as a whole thus had the character of a publication

on a controversial issue. The statements regarding the applicant were

not intended to disparage the applicant or to discriminate against him,

but were necessary to support, as a realistic background, the opinion

expressed in the book that there was organised crime, even in Berlin,

and that the combat against this crime had to be more efficient.

Having regard to the applicant's leading role in the context of

criminal events and a fight between gangs in Berlin in 1970, and his

subsequent conviction and prison sentence as well as the new criminal

proceedings pending against him showed that there was a substantial

link between the subject of the book and the statements regarding the

applicant.

In these circumstances, the impugned statements could not be

regarded as an unlawful violation of the applicant's legitimate

interests. Moreover, to the extent that factual statements were

concerned, the applicant had failed to show that they were untrue. As

regards the statements relating to alleged meetings between the

applicant and a third person, the Court of Appeal noted that one of the

co-authors had been informed about such meetings by two police officers

in July 1991, as confirmed by a superior police officer employed in the

department `organised crime' in the Wiesbaden Federal Police Department

(Bundeskriminalamt). The statements in question were thus based on the

results of police investigations and could not be said to be pure

fiction or otherwise unreliable. In this respect, the Court of Appeal

noted that the applicant had admitted to knowing the third person

concerned. Furthermore, the statements on the applicant's involvement

in the organisation of illegal games of chance were based on the

results of the police investigations, and the bill of indictment of

17 June 1992 contained indications to that effect.

On 13 April 1994 the Federal Constitutional Court refused to

admit the applicant's constitutional complaint (Verfassungsbeschwerde).

On 27 February 1995 the Berlin Regional Court convicted the

applicant of fraud and attempted fraud, of illegal possession of

weapons, and of incitement to breach of secrecy on five counts and

sentence him to five years and six months' imprisonment. As regards

the remainder of charges, the applicant was partly acquitted, partly

the prosecution was discontinued in view of the minor importance of the

charge as compared to the offences of which he was convicted.

The applicant lodged an appeal on points of law (Revision).

These proceedings are still pending.

COMPLAINTS

1. The applicant complains about the Berlin Court of Appeal's

decision of 9 March 1993, and the court proceedings concerned. The

applicant considers that the Court of Appeal incorrectly balanced the

right to freedom of expression and his right to the presumption of

innocence. According to the applicant, the freedom of the press could

not justify publications and statements which were not proven to be

true, if they were intended to produce, before the trial had taken

place, the effects of a criminal finding of guilt. In this respect,

the applicant submits that the authors of the book relied on

information given by the police, and that they did not confront the

applicant in detail with the contents of the intended publication in

order to enable him to comment thereupon. He invokes Article 6

paras. 1 and 2 of the Convention.

2. The applicant also complains that, as a result of the publication

in question, he did not have a fair hearing in the criminal proceedings

against him, as guaranteed by Article 6 para. 1.

THE LAW

1. The applicant complains about the Berlin Court of Appeal's

decision of 9 March 1993, dismissing his request for an injunction

prohibiting a publishing house from repeating several statements

contained in a book on organised crime in Europe.

The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77, pp. 81, 88 and Eur.

Court H.R., Van de Hurk judgment of 19 April 1994, Series A no. 288,

p. 20, para. 61; Klaas judgment of 22 September 1993, Series A no. 269,

p. 17, para. 29).

The applicant alleges a violation of Article 6 paras. 1 and 2

(Art. 6-1, 6-2) of the Convention in that the Berlin Court of Appeal

disregarded the presumption of innocence when balancing his individual

interests against the right to freedom of expression, relied on by the

publishing house.

Article 6 (Art. 6), so far as relevant, provides as follows:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing ... by a ...

tribunal ...

2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The applicant's submissions relate in particular to the Court of

Appeal's legal assessment and the alleged breach of the presumption of

innocence. It seems appropriate to look at these issues from the

point of view of paragraphs 1 and 2 of Article 6 (Art. 6-1, 6-2) taken

together.

The Commission notes that, in the bill of indictment of

June 1992, the applicant was charged with, inter alia, with fraud,

usury, extortion and extortion with violence, organisation of an

illegal game, illegal possession of arms, tax evasion, receiving and

corruption.

In September 1992 a German publishing house published a book on

the role of the Mafia in Europe which inter alia referred to the

applicant.

On 9 March 1993, in appeal proceedings, the Berlin Court of

Appeal dismissed the applicant's request that the publishing house be

prohibited from repeating various statements contained in the above-

mentioned book according to which he had a leading role in the world

of crime and was involved in the organised crime. In a detailed

reasoning and taking into account the case-law of the Federal

Constitutional Court, the Court of Appeal balanced the right to freedom

of expression of the publishing house against the applicant's

interests, in particular his interest in the protection of his

reputation. The Court of Appeal considered that the impugned

statements were made in the context of a publication on a controversial

issue, namely the problem of organised crime in Europe and, more

particularly, in Germany, which was regarded as an important danger.

The Court of Appeal found that, having regard to the applicant's

leading role in the context of criminal events and a fight between

gangs in Berlin in 1970, and his subsequent conviction and prison

sentence as well as the new criminal proceedings pending against him,

there was a substantial link between the subject of the book and the

statements regarding the applicant. The Court of Appeal concluded that

the impugned statements could not be regarded as an unlawful violation

of the applicant's legitimate interests.

The Commission recalls that the presumption of innocence is to

be observed not only by the criminal court trying a case, but also by

other authorities, including other courts. Article 6 para. 2

(Art. 6-2) thus excludes any formal declaration by these authorities

that somebody is guilty of an offence before this is established

according to law by a competent court. However, the authorities may

inform the public about criminal investigations or about an existing

suspicion (cf. 7986/77, Dec. 3.10.78, D.R. 13, p. 73; Dec. 10847/84,

Dec. 7.10.85, D.R. 44, p. 238; No. 16697/90, Dec. 30.11.92 - not

published).

The Commission finds that, having regard to the findings of the

Berlin Court of Appeal and the reasons given for dismissing the

applicant's claim for a prohibitory injunction against the publishing

house concerned, there is no appearance that the Court of Appeal's

decision in itself contained any statement infringing the presumption

of innocence. In particular, the Court of Appeal, taking into account

the relevant case-law of the Federal Constitutional Court, balanced the

applicant's personal interests against the right to freedom of

expression and the demands of free reporting on issues of important

public interest such as the combat of organised crime. Moreover, the

Court of Appeal duly considered whether the statements relating to the

applicant contained untrue or unreliable information. In this respect,

the Court of Appeal considered in particular the result of the

investigations against the applicant, as referred to in the bill of

indictment of June 1992.

In these circumstances, the applicant's submissions do not

disclose any breach of the presumption of innocence.

Moreover, having regard to the conduct of the injunction

proceedings as a whole, the Commission finds no other indication that

the applicant did not receive a fair hearing in compliance with the

principles enshrined in Article 6 paras. 1 and 2 (Art. 6-1, 6-2). In

particular his submissions do not show that, as he was assisted by

counsel, he could not duly present his arguments in defence or could

not effectively present his arguments.

Accordingly, in the context of the injunction proceedings, there

is no appearance of a violation of Article 6 (Art. 6) 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).

2. The applicant further appears to complain under Article 6

(Art. 6) of the Convention that the publication of the book concerned

and the refusal of a prohibitory injunction regarding the impugned

statements on his involvement in the organised crime rendered the

criminal proceedings pending against him before the Berlin Regional

Court unfair.

The Commission recalls that the question of whether a trial

conforms to the standards laid down in Article 6 (Art. 6) must be

decided on the basis of an evaluation of the trial in its entirety (cf.

No. 11058/84, Dec. 13.5.86, D.R. 47, p. 230 with further references).

The Commission has accepted in some cases that a virulent press

campaign can adversely affect the fairness of a trial (No. 10486/83,

Dec. 9.10.86, D.R. 49, p. 86). In the present case, the appeal

proceedings brought by the applicant against his conviction of February

1995 are still pending. It is true that it cannot be excluded that a

specific factor may be so decisive as to enable the fairness of the

trial to be assessed at an earlier stage in the proceedings (cf. Nos

8603/79, 8722/79, 8723/79 and 8729/79 joined, Dec. 18.12.80, D.R. 22,

p. 216). However, the Commission finds that the applicant failed to

show that the criticised statements, which formed part of a general

publication on organised crime, and the refusal of a prohibitory

injunction constituted any such specific factors.

Accordingly, the applicant's complaints in this respect are

premature.

It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2).

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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SPEER v. GERMANY

SPEER v. GERMANY

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