AS TO THE ADMISSIBILITY OF

                      Application No. 25096/94

                      by Otto E.F.A. REMER

                      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

                 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 19 August 1994 by

Otto E.F.A. REMER against Germany and registered on 8 September 1994

under file No. 25096/94;

     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 1912, is a German national and resident

in Bad Kissingen.  He is a retired general.  In the proceedings before

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

practising in Traiskirchen, Austria.

A.   Particular circumstances of the case

     On 22 October 1992 the Schweinfurt Regional Court (Landgericht)

convicted the applicant of incitement to hatred (Volksverhetzung) and

race hatred (Aufstachelung zum Rassenhaß), pursuant to S. 130 (1) and

S. 131 (1) of the German Penal Code (Strafgesetzbuch).  The applicant

was sentenced to one year and ten months' imprisonment and various

publications were confiscated.

     The Regional Court found that the applicant was the editor of an

irregularly issued publication "Remer Depeschen", and himself author

of some of the reports and comments.  He identified himself with the

political and factual statements published in the "Depeschen".

     In its judgment of 113 pages, the Regional Court noted next the

contents of the five relevant issues of the "Depeschen" which had been

distributed in 80,000 copies.  Thus, the "Depeschen" of June, August

and December 1991 as well as of February and April 1992 had contained

articles suggesting that the gas chambers in the concentration camps

during the Nazi regime had never existed.  Further publications

contained information about the applicant's efforts to inform the

population about the truth regarding in particular the concentration

camp in Auschwitz and to fight against the lies about the gassing of

four million Jews in Auschwitz.  Other articles condemned the German

policy regarding Israel, or complained about the preferential treatment

of asylum seekers, "gipsies" and drug traffickers as compared to German

nationals, and about the destruction of Germany as a result of the

immigration of foreigners.

     The Regional Court considered that the publications concerned

made believe that under the Nazi regime no gas chambers for the killing

of Jews had existed and that this so-called lie had been invented by

the Jews in order to extort money from the German Government.  In this

respect, the Regional Court analyzed in detail the statements made in

the various articles.  According to the Regional Court the applicant

knew about the obvious and historical truth as regards the gassing of

Jews in concentration camps such as Auschwitz under the Nazi regime.

He had not only sought to open a public discussion on this matter, but

also to instigate to hatred against Jews.

     The Regional Court stated that its factual findings were based

in particular upon the applicant's statements that he was responsible

for the publications at issue and that he intended further to impart

the information and ideas contained in the incriminated articles.

Moreover, the publications had been consulted in the course of the

trial.

     The Regional Court found that it was common knowledge

(offenkundig) that the contents of the publications concerned, namely

the allegations denying the existence of gas chambers in the

concentration camps as well as the gassing of millions of Jews and the

allegation that the Jews extorted money from the German people, were

untrue, as these matters were historically proven facts.  In this

respect, the Regional Court referred to the case-law of the Federal

Constitutional Court (Bundesverfassungsgericht) as to the

interpretation of the term of common knowledge, and to the entries in

several common encyclopedia, and other publications on contemporary

history, regarding the issues gas chamber, concentration camp, Zyklon B

and Auschwitz.

     On 16 November 1993 the Federal Court of Justice (Bundesgerichts-

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

     In its decision, the Court of Justice confirmed the findings of

the Regional Court that the mass murder of Jews in the gas chamber of

concentration camps during the Second World War were historically

proven and therefore common knowledge.  The taking of evidence on such

matters was consequently not necessary.  In this respect, the Court of

Justice referred to the constant case-law of the Federal Constitutional

Court, its own constant case-law as well as the jurisprudence of the

German Courts of Appeal.

     The Federal Court of Justice also refuted the applicant's defence

that his publications had served the purpose of historical research.

The Court of Justice observed that SS. 130 and 131 of the German Penal

Code aimed to secure the peaceful coexistence of the population in the

Federal Republic of Germany.  Anybody who on the basis of ideas of

national socialism incited to hatred against parts of the population

in making commonly known untrue factual allegations in public and

reproaching them with lying and extortion and thus portraying them as

particularly abominable.  This consideration applied the more when the

fate of the Jews under the national socialist regime was depicted as

an "invention" and when this allegation was combined with the alleged

motive of extortion.

     On 10 February 1994 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde).  The decision was served on

21 February 1994.

B.   Relevant domestic law

     S. 131 (1) of the German Penal Code (Strafgesetzbuch) 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.

     According to S. 131 (1) of the Penal Code, anybody who

disseminates publications which describe cruel or otherwise inhuman

brutalities against human beings in such a manner that such brutalities

are glorified or minimised, or that the cruel or inhuman character of

the event is shown in such a way as to violate human dignity, shall be

punished by imprisonment for a term not to exceed one year or by a

fine.

     Sentences to imprisonment are executed in accordance with SS. 449

et seq. of the Code of Criminal Procedure (Strafgesetzbuch).  S. 455

provides for a stay of the execution of a sentence to imprisonment in

cases of serious health risks.  The execution of sentences to

imprisonment is further regulated by the Execution of Sentences Act

(Strafvollzugsgesetz).  SS. 56 to 65 of the Execution of Sentences Act

contain detailed provisions on the health care for prisoners.

COMPLAINTS

1.   The applicant complains about his conviction by the Schweinfurt

Regional Court of 22 October 1992.  He considers that his case was of

a political nature and that his conviction of incitement to hatred

infringed his right to freedom of thought and conscience, as well as

his right to freedom of expression, in respect of the - according to

the applicant - true statement that no gas chambers existed in German

concentration camps.  He invokes Articles 9 and 10 of the Convention.

2.   The applicant further complains that the sentence of one year and

ten months' imprisonment amounts, taking into account his age, to

inhuman punishment within the meaning of Article 3 of the Convention.

3.   The applicant also complains under Article 6 of the Convention

that he did not have a fair trial by an impartial court.  In this

respect, the applicant considers in particular that the courts unduly

dismissed his requests to take evidence as to the truth of the

incriminated statements and challenges the courts' findings that these

events were historical facts and therefore common knowledge which did

not call for a further taking of evidence.  He submits that he was

convicted on the basis of mere assumptions, contrary to the presumption

of innocence.

THE LAW

1.   The applicant complains about the Court of Appeal judgment of

22 October 1992 convicting him of incitement to hatred.  He invokes

Articles 9 and 10 (Art. 9, 10) of the Convention.

     The Commission finds that the essence of the applicant's

complaint is his conviction for having distributed various publications

and has, therefore, examined his submissions in this respect under

Article 10 (Art. 10) of the Convention.  This provision, 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.  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 interference was "prescribed by law", namely the relevant

provisions of the Penal Code.  SS. 130 and 131 of the Penal Code are

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".  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, and their application in the present case, aimed to secure the

peaceful coexistence of the population in the Federal Republic of

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

notes the detailed findings of the Regional Court as to the contents

of the applicant's publications in which he had attempted to incite to

hatred against Jews.  Moreover, the Federal Court of Justice confirmed

that anybody who on the basis of ideas of national socialism incited

to hatred against parts of the population in making commonly known

untrue factual allegations in public and reproaching them with lying

and extortion and thus portraying them as particularly abominable.  The

Court of Justice considered that such a consideration applied the more

when the fate of the Jews under the national socialist regime was

depicted as an "invention" and when this allegation was combined with

the alleged motive of extortion.

     The Commission finds that the applicant's publications ran

counter one of the basic ideas of the Convention, as expressed in its

preamble, namely justice and peace, and further reflect racial and

religious discrimination.

     The public interests in the prevention of crime and disorder in

the German population due to incitement to hatred against Jews, and the

requirements of protecting their reputation and rights, outweigh, in

a democratic society, the applicant's freedom to impart publications

denying the existence of the gassing of Jews in the concentration camps

under the Nazi regime, and the allegations of extortion (see also

No. 9235/81, Dec. 16.7.82, D.R. 29 p. 194).

     In these circumstances, there were relevant and sufficient

reasons for the applicant's conviction.  The judgment of the

Schweinfurt Regional Court of 22 October 1992, as confirmed by the

Federal Court of Justice, 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's right under Article 10 (Art. 10) of the Convention.

     It follows that this part of the application is manifestly

ill-founded with the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.   The applicant further complains that the sentence of one year and

ten months' imprisonment amounts, taking into account his age, to

inhuman punishment within the meaning of Article 3 (Art. 3) of the

Convention.

     The Commission recalls that ill-treatment must attain a minimum

level of severity if it is to fall within the scope of Article 3

(Art. 3).  The assessment of this minimum is relative and must take

account of all the circumstances of the case, including the duration

of the treatment, its physical and mental effects and, in some cases,

the sex, age and state of health of the person subjected to it (e.g.

Eur. Court H.R., Ireland v. the United Kingdom judgment of 18 January

1978, Series A no. 25, p. 65, para. 162).  In order for a punishment

to be degrading and in breach of Article 3 (Art. 3), the humiliation

or debasement involved must attain a particular level and must in any

event be other than the usual element of humiliation associated with

imprisonment after a criminal conviction.  Such an examination is also

relative and depends on all the circumstances of the case and, in

particular, on the nature and context of the punishment itself and the

manner and method of its execution (Eur. Court H.R., Tyrer judgment of

25 April 1978, Series A no. 26, p. 15, para. 30).

     The Commission notes that on 22 October 1992 the Schweinfurt

Regional Court convicted the applicant, born in 1912, of incitement to

hatred and race hatred and sentenced him to one year and ten months'

imprisonment.  The applicant did not allege that he is unfit, for

health reasons, to serve the prison sentence concerned, that there

would be insufficient health care in case of imprisonment or that he

could not, if necessary, apply for a stay of execution of the sentence

in accordance with the relevant provisions of German law. (cf. mutatis

mutandis No. 7994/77, Dec. 6.5.78, D.R. 14 p. 238).

     The Commission, considering all circumstances of the present

case, finds no appearance that the sentence of imprisonment imposed

upon the applicant would go beyond the threshold set by Article 3

(Art. 3) of the Convention.

     Consequently, this part of the application is likewise manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).

3.   The applicant finally complains under Article 6 (Art. 6) of the

Convention that he did not have a fair trial by an impartial court.

In this respect, the applicant considers in particular that the courts

unduly dismissed his requests to take evidence as to the truth of the

incriminated statements and challenges the courts' findings that these

events were historical facts and therefore common knowledge which did

not call for a further taking of evidence.  He submits that he was

convicted on the basis of mere assumptions, contrary to the presumption

of innocence.

     The Commission finds no indication that the applicant, assisted

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

not effectively exercise his defence rights.

     As regards his complaints about the taking and assessment of

evidence,  the Commission recalls that as a general rule, it is for the

national courts to assess the evidence before them as well as the

relevance of the evidence which the defendants seek to adduce.  More

specifically, Article 6 para. 3 (d) (Art. 6-3-d) leaves it to them,

again as a general rule, to assess whether it is appropriate to call

witnesses, in the "autonomous" sense given to that word in the

Convention system; it does not require the attendance and examination

of every witness on the accused's behalf (cf., Eur. Court H.R.,

Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89;

Vidal judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, para.

33).

     The Commission notes that the Regional Court, in its judgment of

22 October 1992, dismissed the applicant's requests for the taking of

further evidence, finding that it was common knowledge that the

contents of the publications concerned, namely the allegations denying

the existence of gas chambers in the concentration camps as well as the

gassing of millions of Jews and the allegation that the Jews extorted

money from the German people, were untrue, as these matters were

historically proven facts.  In this respect, the Regional Court

referred to the case-law of the Federal Constitutional Court as to the

interpretation of the term of common knowledge, and to the entries in

several common encyclopedia, and other publications on contemporary

history.  The Federal Court of Justice, in its decision of 16 November

1993, confirmed the findings of the Regional Court that the mass murder

of Jews in the gas chamber of concentration camps during the Second

World War were historically proven and therefore common knowledge.  The

taking of evidence on such matters was consequently not necessary.  The

Court of Justice referred to the constant case-law of the Federal

Constitutional Court, its own constant case-law as well as the

jurisprudence of the German Courts of Appeal.

     In these circumstances, the Commission finds no sufficient

grounds to form the view that there were any special circumstances in

the present case which could prompt the conclusion that the failure to

take further evidence was incompatible with Article 6 (Art. 6) (cf.,

No. 9235/81, Dec. 16.7.82, D.R. 29 p. 194)..

     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)