Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19459/92

by F.P.

against Germany

The European Commission of Human Rights sitting in private on

29 March 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

Mrs. J. LIDDY

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M. NOWICKI

Mr. H.C. KRÜGER, Secretary to the Commission

assisted by Mr. W. PEUKERT

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 November 1991

by F.P. against Germany and registered on 30 January 1992 under file

No. 19459/92;

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 is a German citizen born in 1943 and living in

Westensee.

He is represented by Mr Theodor Gerlach, a lawyer practising in

Zeven. In 1965 the applicant became a professional soldier and

eventually Captain in the Navy (Korvettenkapitän).

On 9 June 1989 the competent Military Court (Truppendienstgericht

Süd) found the applicant guilty of a disciplinary offence and ordered

his reduction to a lower rank.

The Court found that on the occasion of a private party which he

gave on 15 September 1987, the applicant had stated in the presence of

German and American soldiers

- that the Holocaust was a lie of Zionists while in reality

Jews had never been persecuted and killed.

- that he had evidence showing that allegations about

persecutions of Jews in Germany were a part of a

strategy of Zionism and Communism in order to

discredit Germany.

- that the Wannsee-protocol was a fake.

- that lists about killed Jews had been faked while the

alleged victims later reappeared in the United States

where they lived under a false name.

- that only criminals had been detained in Concentration

Camps and that Communists were responsible for

cruelties committed in Concentration Camps.

- that films taken at the moment of the liberation of

detainees in Concentration Camps were fakes.

- that some Concentration Camps had been constructed

only after the war for the purposes of anti-German

propaganda.

- that there was no proof of the existence of Auschwitz

except for a faked and unclear photo.

- that the educational system was used to give pupils a

wrong picture of German history.

It was further found that the applicant had made critical remarks

about Zionism and Nato-allied forces.

On 28 September 1990 the applicant's appeal (Berufung) was to no

avail while the Federal Administrative Court (Bundesverwaltungsgericht)

granted the appeal of the military public prosecutor

(Bundeswehrdisziplinaranwalt) and decided to curtail the applicant's

military service for having committed a disciplinary offence. The

Court stated that the facts had to be considered as established in view

of the applicant's own submissions and the statements of various

witnesses. The Court considered that the applicant had violated his

duty of political loyalty in the most serious manner and that he had

not actively served, supported and defended the ideals of the State.

He had thereby intentionally violated Sections 7, 8 and 10 para. 6 of

the Soldiers Act (Soldatengesetz-SG). Such a violation was given

whenever a soldier actively or passively supported objectives that

endangered the free democratic order. The Court admitted that the mere

holding of an opinion and the manifestation of such opinion was not a

violation of military duty. It exceeded however the limits of this

right if a soldier drew conclusions from his opinion which were

decisive for his attitude vis a vis the Federal Republic's

constitutional order and the manner in which he fulfilled his military

duties and also influenced his social contacts with other soldiers or

other activities. By having denied historical events related to Nazi

persecution against Jews the applicant not only had criticised

conceptions of history but had tried to clean National Socialism of the

stain of mass murder. He thereby had discriminated against Jewish

people who had the right that the historical fact of this mass murder

was not put in question. He had also intentionally violated Section

17 para. 2 second sentence of the Soldiers Act by having in private

behaved in a manner that was detrimental to the reputation of the

military.

The applicant's constitutional complaint was rejected by the

Federal Constitutional Court (Bundesverfassungsgericht) on 11 September

1991 as offering no prospects of success. The Court considered that

there was no appearance of any arbitrariness and that also the

principle of proportionality had not been violated. It was true that

for many years the applicant had carried out his military service in

an unobjectionable manner and that the application of the maximum

penalty was a severe measure. Nevertheless there was nothing to show

that the Federal Administrative Court had not taken into account all

particular circumstances and the degree of the applicant's culpability.

In this context the Court also noted that the applicant had been

granted payment of a subsistence allowance (Unterhaltsbeitrag) and had

also been given the possibility of an additional social security

insurance (Nachversicherung).

COMPLAINT

The applicant alleges violations of Articles 9 and 10 of the

Convention.

THE LAW

The applicant complains of an interference with his rights to

manifest his beliefs and to freedom of expression as guaranteed under

Articles 9 and 10 (Art. 9, 10) of the Convention in that as a

professional soldier he was imposed the severe disciplinary sanction

of dismissal from military service for having at a private party made

remarks in the presence of other soldiers that were considered to

violate in a very serious manner his duty of political loyalty as

required under Section 8 of the Soldiers Act.

Article 9 para. 1 (Art. 9-1) of the Convention provides that:

"Everyone has the right to freedom of thought, conscience and

religion; this right includes freedom to change his religion or belief

and freedom, either alone or in community with others and in public or

in private, to manifest his religion or belief, ownership, teaching,

practice and observance."

The Commission considers that this provision cannot be invoked

by the applicant as the incriminating remarks he made at a private

party did not reflect a "belief" within the meaning of Article 9

(Art. 9) of the Convention which is essentially destined to protect

religions, or theories on philosophical or ideological universal

values. The disciplinary sanction can however be considered to

constitute an interference with freedom of expression as it was imposed

on the applicant for having expressed before fellow soldiers and others

his view on certain historic events.

Article 10 para. 1 (Art. 10-1) provides:

"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

and regardless of frontiers. ..."

However, interferences with this right are compatible with the

Convention when they fulfil the requirements of paragraph 2 of Article

10 (Art. 10-2) which provides:

"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, in the interests of

national security, territorial integrity or public safety,for the

prevention of disorder or crime, for the protection of health or

morals, for the protection of the reputation or rights of others,

for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

As to the requirements set out in paragraph 2 it has first to be

noted that the sanction in question was imposed on the applicant for

having violated in a severe manner various sections of the German

Soldiers Act. The Soldiers Act defines rights and duties of soldiers

and serves inter alia to maintain order and discipline in the military

service. It thus pursues a legitimate aim under Article 10 para. 2

(Art. 10-2) of the Convention, namely the interests of national

security and the prevention of disorder.

It remains to be ascertained whether the measure in question was

necessary in a democratic society and proportionate to the aims pursued

(Eur. Court H.R., Schwabe judgment of 28 August 1992, Series A No. 242-

B, para. 29 with further references).

In this respect the Commission refers to Article 17 (Art. 17) of the

Convention. This provision states:

"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) covers essentially those rights which will

facilitate the attempt to derive therefrom a right to engage personally

in activities aimed at the destruction of any of the rights and

freedoms set forth in the Convention.

As regards the circumstances of the present case the Commission

notes the detailed findings of the domestic courts about statements

made by the applicant in the presence of other soldiers. These

statements did according to the German courts not only deny historical

facts but were aimed at cleansing the totalitarian Nazi regime of the

stain of mass murder and therefore discriminated against Jewish people.

The statements in question which the applicant repeats in his

submissions to the Commission clearly contain racist matter and are

discriminatory against the Jewish people. The Commission notes that

the applicant was dismissed because his statements were considered to

be incompatible with his duty of loyalty as a professional officer.

The Commission finds that a state may impose special obligations on

those representing the state as civil servants or officers. Under the

circumstances of the present case the Commission does not find that the

German courts applied that principle in a way contrary to Article 10

para. 2 (Art. 10-2) of the Convention.

Under these circumstances the Commission concludes that the

interference at issue was "necessary in a democratic society" within

the meaning of Article 10 para. 2 (Art. 10-2) of the Convention (cf.

No. 12194/86, Dec. 12.5.19, Kühnen v. the Federal Republic of Germany,

DR 56, p.205).

It follows that the application does not disclose any appearance

of a violation of Convention rights and has to be rejected as being

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 Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

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F.P. v. GERMANY

F.P. v. GERMANY

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