Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24274/94

by Hovik SIMONIAN

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 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

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

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 11 April 1994 by

Hovik SIMONIAN against Germany and registered on 6 June 1994 under file

No. 24274/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

FACTS

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

I. The background of the application

The applicant, born in 1949, is a Lebanese national and resident

at Rougemont in Switzerland. He is a businessman by profession.

Before the Commission he is represented by MM. H.-H. Kupzog and

R. Strauch III, lawyers practising in Cologne.

In May 1983 the Basel-Stadt Public Prosecutor's Office

(Staatsanwaltschaft) instituted preliminary investigations against the

applicant on the suspicion of having been involved in international

drug trafficking and money laundering. The applicant was arrested and

taken into detention on remand in Switzerland in May 1983. He was

released in July 1983. The criminal proceedings against the applicant

were discontinued in November 1988.

In the course of these investigations, German broadcasting

reported on drug and arms trafficking in Europe, as well as money

laundry in Switzerland in broadcasts of December 1984, January and May

1985, respectively, and in this context also mentioned the Swiss

proceedings and the suspicions against the applicant. Moreover, a book

was published on the issue of money laundering in Switzerland, which

inter alia referred to the applicant and the investigation proceedings

against him.

II. The compensation proceedings against broadcasting companies

On 3 August 1988 the Cologne Regional Court (Landgericht)

dismissed the applicant's action, i.e. in particular compensation

claims for non-material damages, against German broadcasting companies

and editors who had been involved in the above-mentioned reports.

The Regional Court found that, as regards the broadcasts in

December 1984, any claims had become statute-barred. Furthermore,

claims regarding the broadcasts in January 1985 were statute-barred in

respect of one of the defendants as the service of the action upon him

had been out of time.

Moreover, the Regional Court stated that the applicant's

compensation claims concerning the broadcasts in January and May 1985

were unfounded. The applicant could not claim compensation for a

violation of his personality rights (Persönlichkeitsrechtsverletzung).

The Regional Court considered that the broadcasts of January 1985 did

not contain any untrue statements of facts. In particular, the

Regional Court did not accept the applicant's submission that one of

his comments was presented as a refuted statement in defence and that

he had been described as a person found guilty of money laundering.

Rather, the defendants had reported about an existing suspicion against

him. Reporting about offences and grievances was the legitimate task

of the media. Moreover, the defendants had not breached the principle

of presumption of innocence, as the report had been cautious in the

circumstances prevailing and had been limited to stating a suspicion

against the applicant. The Regional Court continued that the same

considerations applied to the broadcast of May 1985 to the extent that

both broadcasts had the same contents. As regards the further passages

regarding new elements supporting the suspicion against the applicant,

no other conclusions could be drawn.

On 27 June 1989 the Cologne Court of Appeal (Oberlandesgericht)

dismissed the applicant's appeal against the Regional Court's judgment

of August 1988. The Court of Appeal, assuming that none of the

compensation claims had become statute-barred, found that such claims

were unfounded. Considering the German case-law and legal literature

on compensation claims for violation of personality rights and the

presumption of innocence in case of reports in the media on persons

suspected of having committed a criminal offence, the Court of Appeal

came to the conclusion that the emissions concerned had truly informed

the public on a matter of general interest, namely drug trafficking.

On 12 June 1990 the Federal Court of Justice (Bundesgerichtshof)

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

III. The injunction proceedings against Mr. Ziegler

On 15 August 1990 the Cologne Regional Court dismissed the

applicant's request for an injunction against Mr. Ziegler and the

German publisher of his book. The Regional Court found that the

applicant's claim that the defendants be prohibited from further

publishing any references to the applicant was unfounded. In

particular, the fact that the applicant's name had been mentioned and

the contents of the impugned statements did not amount to a violation

of his personality rights. In this respect the Regional Court referred

to the judgment of 27 June 1989. It also considered that the relevant

passages in the book only reported about the opening of the preliminary

investigations against the applicant, the subject of these

investigations and the outcome of the proceedings, and that these

statements were on the whole true.

On 15 January 1991 the Cologne Court of Appeal dismissed the

applicant's appeal. The Court of Appeal confirmed the considerations

in its judgment of 27 June 1989 and the findings of the Regional Court.

It considered in particular that the fact that the investigation

proceedings against the applicant had been discontinued in November

1988 did not prohibit the defendants from referring to these matters

in the context of a general discussion of money laundering and drug

trafficking.

IV. The compensation proceedings against Mr. Ziegler

On 20 March 1991 the Cologne Regional Court dismissed the

applicant's compensation claims against Mr. Ziegler and the German

publisher of his book, as well as his request for an injunction

prohibiting the further distribution of the book in question. The

Regional Court referred in particular to the previous court judgments.

On 19 November 1991 the Cologne Court of Appeal dismissed the

applicant's appeal.

On 14 July 1992 the Federal Court of Justice refused the

applicant's request for legal aid in view of lodging an appeal on

points of law. The Federal Court of Justice found that the applicant

had failed to show that he fulfilled the financial conditions for being

granted legal aid.

V. The Constitutional Court proceedings

On 20 October 1993 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaints concerning the decisions taken in the context of the first

set of compensation proceedings (the decisions of the Federal Court of

Justice of 12 June 1990, of the Cologne Court of Appeal of 27 June 1989

and the Cologne Regional Court of 3 August 1988, respectively) and the

decisions taken in the context of the injunction proceedings (the

decisions of the Cologne Court of Appeal of 15 January 1991 and of the

Cologne Regional Court of 15 August 1990, respectively). The decision

was served on 5 November 1993.

COMPLAINTS

The applicant complains under Article 6 para. 2 and Article 8 of

the Convention about the above court decisions refusing compensation,

and a prohibitory injunction, in respect of publications infringing the

presumption of innocence and his reputation.

THE LAW

The applicant complains about German court decisions refusing

compensation, and a prohibitory injunction, in respect of publications

on criminal proceedings against him and the suspicion of having

committed criminal offences. He invokes Article 6 para. 2 (Art. 6-2)

of the Convention.

Article 6 para. 2 (Art. 6-2) provides that "everyone charged with

a criminal offence shall be presumed innocent until proved guilty

according to law."

The Commission notes that in May 1983 the Swiss prosecution

authorities instituted preliminary investigations against the applicant

on the suspicion of having been involved in international drug

trafficking and money laundering. The criminal proceedings against the

applicant were discontinued in November 1988.

In the course of these investigations, German broadcasting

reported on drug and arms trafficking in Europe, as well as money

laundering in Switzerland in broadcasts of December 1984, January and

May 1985, respectively, and in this context also mentioned the Swiss

proceedings and the suspicions against the applicant. Moreover, a book

was published on the issue of money laundering in Switzerland, which

inter alia referred to the applicant and the investigation proceedings

against him.

The applicant brought civil actions before the German courts

against the broadcasting companies and editors who had been involved

in the above-mentioned broadcasts, as well as against the author of the

said book and its publisher. These actions remained unsuccessful on

the ground that the competent German courts found that the applicant's

personality rights had not been infringed. The German courts

considered in particular that the reports on the applicant only had

contained true facts such as the existence of the suspicion against the

applicant or the criminal proceedings against him, and had also regard

to the public interest in matters such as drug trafficking.

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 respective

findings of the German courts and the reasons given for dismissing the

applicant's civil claims against third persons, there is no appearance

that the court decisions in themselves contained any statement

infringing the presumption of innocence. In particular, the German

courts, when examining whether the applicant's personality rights were

infringed, considered the demands of the presumption of innocence and

its consequences as to reporting in the media on criminal

investigations and suspects involved in such proceedings. In the

litigation brought by the applicant, they found nothing going beyond

the information about the course of the Swiss criminal proceedings

against the applicant and the suspicion against him.

In these circumstances, the applicant's submissions do not

disclose any breach of the presumption of innocence.

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 complains under Article 8 (Art. 8) of the

Convention that the German courts did not afford him protection against

the alleged violation of the presumption of innocence and of his

reputation.

The applicant thereby invokes a positive obligation, namely to

interfere with other persons' right to freedom of expression, a right

guaranteed under Article 10 (Art. 10) of the Convention, with a view

to protect his reputation.

The Commission recalls that although positive obligations may be

required by Article 8 (Art. 8) of the Convention, the way in which a

High Contracting Party may meet such obligations is largely within its

discretion (cf. No. 10871/84, Dec. 10.7.86 D.R. 48 p. 154). In the

present case, the applicant had an actionable right to privacy.

Moreover, the Commission, taking into account its above findings under

Article 6 para. 2 (Art. 6-2), considers that the German court decisions

did not show any lack of respect for the applicant's right to respect

for his private life, as guaranteed by Article 8 para. 1 (Art. 8-1) of

the Convention.

It follows that this part of the application is also 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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SIMONIAN v. GERMANY

SIMONIAN v. GERMANY

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