Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16315/90

by S.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 11 July 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

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

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 February 1990

by S. against the Federal Republic of Germany and

registered on 19 March 1990 under file No. 16315/98;

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 1912. He lives in

Gudensberg and is represented before the Commission by Sieghart Ott

and Fraulob Ulrich, lawyers of Munich. The facts of the case, as

submitted by the applicant's representatives, may be summarised as

follows.

In 1970 the applicant published a book entitled "The Federal

German Dreyfus affair - Law Breaking and Refusal to Think in the 10

year old Brühne-Ferbach Affair" ("Der bundesdeutsche Dreyfus-Skandal,

Rechtsbruch und Denkverzicht in der zehn Jahre alten Justizsache

Brühne-Ferbach"). The book contained the following passage, which is

also repeated on the back cover:

(Translation)

"If the rumour will not go away that Vera Brühne and

Johann Ferbach have been serving a life sentence for 8 years

in order that obscurity shall continue to surround Strauss'

involvement in an affair which ended in murder - the

obscurity surrounding the way in which a salaried employee

could amass an enormous fortune - then it is the statesman's

own fault. In a normal democracy he would long since have

had criminal proceedings brought against Hentges for

defamation."

(German)

"Wenn das Gerücht nicht zur Ruhe kommt, daß Vera Brühne und

Johann Ferbach auf Lebzeiten seit nun acht Jahren in

Zuchthaus sitzen, damit mindestens Straußens Verwicklung in

eine Affäre, die in Mord gipfelte, dunkel bleibe: so

verhüllt wie der Weg, auf welchem ein Gehaltsempfänger zu

einem riesigen Vermögen eigentlich kommen konnte, ist der

Staatsmann selbst schuld daran. In einer normalen

Demokratie hätte er Hentges wegen Verleumdung längst

angezeigt."

On 24 March 1970 an interim injunction was granted to then

Federal Defence Minister, Franz Josef Strauss, against the applicant by

the Munich Regional Court (Landgericht) I. The injunction provided as

follows:

(Translation)

"On pain of an unlimited fine or up to 6 months

imprisonment for each contravention, the defendants ....

shall refrain from maintaining and broadcasting, whether

using the very words or words to the same effect, that the

rumour will not go away that Vera Brühne and Johann Ferbach

have been serving a life sentence for 8 years in order that

obscurity shall continue to surround the plaintiff's

involvement in an affair which ended in murder."(Emphasis added)

(German)

"Den Antragsgegnern wird bei Meidung einer Geldstrafe in

unbeschränkter Höhe oder Haftstrafe bis zu 6 Monaten für

jeden Fall der Zuwiderhandlung - .... verboten, wörtlich oder

sinngemäß zu behaupten oder zu verbreiten: Es komme das

Gerücht nicht zur Ruhe, daß Vera Brühne und Johann Ferbach

auf Lebzeiten seit nun 8 Jahren im Zuchthaus sitzen, damit

mindestens die Verwicklung des Antragstellers in eine

Affäre, die in Mord gipfelte, dunkel bleibe." (Emphasis added)

The injunction was confirmed by the Regional Court on 26 June

1970. The applicant's appeal (Berufung) was rejected by the Munich

Court of Appeal (Oberlandesgericht) on 25 January 1971.

In September 1985 the applicant published a book entitled

"The Past which would not end - Power Mania, Business and

Constitutional Betrayal in the Brühne-Ferbach Scandal" ("Die

Vergangenheit, die nicht endete - Machtrausch, Geschäft und

Verfassungsverrat im Justizskandal Brühne-Ferbach").

On 6 February 1986 Franz Josef Strauss, who was then Prime

Minister of Bavaria ("the plaintiff") applied for a sanction

(Ordnungsmittel) pursuant to Article 890 para. 1 of the Code of Civil

Procedure (Zivilprozessordnung). The plaintiff alleged that the

applicant, as publisher of the whole and author of some of the

contributions, had contravened the injunction of 24 March 1970 in

several respects. On 14 May 1986 the Regional Court found that the

following five passages contravened the injunction:

(Translation)

"a) At page 12 of the book: 'One of his theories - now

reproduced in this volume - that Frau Brühne became involved

in high politics, and a statement of BND-agent Hentges that

Strauss knew about the events concerning Praun, had a

terrible confirmation.'

b) At page 115 of the book: 'It is quite certain that

you are aware [Mr. Strauss] that I wish to have nothing at

all to do with this matter and that I knew nothing about the

intentions of your two confidents beforehand. I disapprove

of such use of violence, and there were other, more elegant

ways of bringing our opponent to his senses.'

c) At page 121 of the book: 'Your question is a good

one, of course, Hentges' statement permits only two

interpretations in logic, either Strauss had proceedings

brought against him for malicious accusation, or proceedings

be brought against Strauss because of the role he played in

the background of the affair according to Hentges.'

d) At page 122 of the book: 'In a normal democracy

[Strauss] would long since have had criminal proceedings

brought against Hentges for defamation.'

e) At page 132 of the book: 'However dubious the

background of Roger Hentges may be, by maintaining that

Praun was killed in the presence of Strauss' Adjutant

General Repenning, he not only brought 'high politics' into

things, but he also, without being able to prove it at the

time, gave an explanation for the fact that victims Praun

and Kloo were in fact still alive at 19.45 on 14.4.1960.'"

(German)

"a) Auf Seite 12 des Buches: 'Eine seiner - jetzt wieder in

diesem Band nachlesbaren - Theorien, Frau Brühne sei

ungewollt Spielball der großen Politik geworden und die

Aussage des BND-Agenten Hentges, Strauß sei über die

Geschehnisse um Praun informiert gewesen, fanden eine

grausame Bestätigung.'

b)Auf Seite 115 des Buches: 'Es ist Ihnen, sehr geehrter

Herr Bundesminister (gemeint Strauß), ohne irgendeinen

Zweifel bekannt, daß ich mit dieser Angelegenheit nichts zu

tun haben will und ich von den Absichten ihrer zwei

Vertrauenspersonen vorher nicht informiert gewesen bin. Ich

bin gegen solche Gewaltanwendungen, und es gab noch andere

elegantere Möglichkeiten, unseren Kontrahenten zur Raison zu

bringen.'

c)Auf Seite 121 des Buches: 'Ihre Frage ist berechtigt,

natürlich läßt Hentges' Aussage nur die logische

Alternative, daß entweder ihm selbst wegen falscher

Anschuldigung auf Strafanzeige von Seiten von Strauß der

Prozeß gemacht oder Strauß wegen der Rolle verfolgt wird,

die er Hentges zufolge im Hintergrund der Sache gespielt

hat.'

d)Auf Seite 122 des Buches: 'In einer normalen

Demokratie hätte er (Strauß) Hentges wegen Verleumdung

längst angezeigt.'

e)Auf Seite 132 des Buches: 'Wie zweifelhaft auch immer

die Herkunft von Roger Hentges sein mag, durch seine

Behauptung, Praun sei in Anwesenheit des damaligen

Strauß-Adjutanten Generaloberst Repenning getötet worden,

hat er nicht nur die "große Politik" ins Spiel gebracht, er

hat auch, ohne es damals beweisen zu können, eine Erklärung

dafür gegeben, weshalb die Opfer Praun und Kloo tatsächlich

noch am 14.4.1960 um 19.45 lebten.'"

Of these passages, those on pages 115, 121 and 122 of the

book were direct quotations from the 1970 publication. They had

not been specifically referred to in the proceedings in 1970/71.

A fine (Ordnungsgeld) of DM 30,000 was imposed on the

applicant.

On appeal (sofortige Beschwerde), the order of 14 May 1986 was

amended to provide for a fine of DM 15,000. The remainder of the

appeal was rejected. The Court of Appeal found, inter alia, that it

was required not merely to look at the literal meaning of the

passages, but to consider how the average reader would have understood

them. The Court added that the overall content of the book and the

editor's ultimate aim could not be left out of consideration. The

Court also found that:

(Translation)

" .... neither the Regional Court nor the Court of Appeal in

the context of the appeal was required or, indeed,

authorised to consider the effectiveness or constitutionality

of the injunction, which was now in full force, that is, to

review also the prohibition of statements using 'words to

the same effect'. In the context of the proceedings

leading to the sanction, the full legal effect of the

injunction had to be taken as granted for the basis of the

imposition of the sanction." (Emphasis added)

(German)

"Weder das Landgericht noch der Senat [war] im Rahmen des

Beschwerdeverfahrens veranlaßt oder gar befugt, die

Wirksamkeit bzw. die Verfassungsmäßigkeit des rechtskräftig

tenorierten Verbots, also auch die Untersagung

sinngemäßer Behauptungen, zu überprüfen. Vielmehr war

im Rahmen des Ordnungsmittelverfahrens in vollem Umfang vom

rechtskräftigen Verbotstitel als Grundlage der Verhängung

des Ordnungsgeldes auszugehen." (Emphasis added)

The Court of Appeal went on to consider the passages

individually, concluding that they did fall within the scope of

the original injunction.

In considering the fine which had been imposed, the Court

noted on the one hand that the applicant was responsible for the

publication, and considered that the contravention of the injunction

was serious. On the other hand, the Court noted that only 1,000 of

the limited print-run of 2,000 copies had been distributed, and that

it has been distributed in circles which had developed critical

faculties. The Court also noted that, by virtue of the length of time

which had elapsed since the original murder and subsequent

investigation had taken place, the general public interest in the case

had diminished considerably. Finally, the applicant's income should

have been taken into account. The Court of Appeal considered that a

fine in the order of the applicant's income for two months was

sufficient. The fine was reduced to DM 15,000, and the possibility of

imprisonment as ultimate sanction was lifted.

On 31 July 1989 the Federal Constitutional Court

(Bundesverfassungsgericht) rejected the applicant's constitutional

complaint (Verfassungsbeschwerde), finding that it had no sufficient

prospect of success. The Constitutional Court first noted that it

could not consider whether the conditions for the imposition of the

fine had been fulfilled, as its only function was to consider

constitutional rights. In finding that Article 5 para. 1 of the Basic

Law (Grundsgesetz), which guarantees freedom of expression, had not

been violated, the Court noted that the original injunction prohibited

repetition of the rumour in terms or using words to the same effect.

That injunction was in force. Article 5 para. 1 of the Basic Law did,

however, apply in determining whether a sanction should be applied, as

the provision required any prohibition to be foreseeable so that the

person subject to the injunction could behave accordingly. It was

clear from the injunction of 24 March 1970 that not only express

repetition of the words was included, but also "words to the same

effect". The Court added that in the interests of the plaintiff

a certain flexibility was necessary if the injunction was not to be

completely devoid of meaning. It further noted that the courts had

not taken the book at issue "as a whole", but had based themselves on

an examination of five specific passages, and that these passages had

been classified as not being merely value judgments. The possibility,

in logic, of alternative interpretation did not nullify the finding

that the statements amounted to contentions of fact, as, by

definition, it was "alternative".

The Constitutional Court found no objection in constitutional

law to the consideration of the texts from the point of view of the

average reader, in particular as the leaflet was intended for the

public. The finding of fact of the courts below that the five

passages corresponded to the wording prohibited by the injunction was,

at the very least, tenable and perfectly compatible with the

Constitution.

COMPLAINTS

The applicant alleges a violation of Article 7 para. 1 of the

Convention in that, when his book was published in 1985, it was not

foreseeable that he would be fined for its publication.

He also alleges a violation of Article 10 of the Convention.

He contends that, as it was not foreseeable that the passages of his

pamphlet would be regarded as falling within the scope of the

injunction of 24 March 1970, the interference with his rights under

Article 10 cannot be regarded as "prescribed by law". The applicant

submits that the sanction imposed on him cannot be considered as

responding to a "pressing social need", especially as any criticism

there may have been of the Bavarian Minister President concerned his

political rather than his private activities. The applicant regards

the practically unlimited interpretation of the prohibition of the

injunction of 24 March 1970 as out of all proportion to the aim

pursued.

THE LAW

1. The applicant alleges a violation of Article 10 (Art. 10) of

the Convention, which provides as follows:

"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 and regardless of frontiers. ...

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,

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."

The Commission finds, first, that the applicant's freedom of

expression has been interfered with, and that this interference took

the form of a fine which must be justified as "restriction" or

"penalty" under Article 10 para. 2 (Art. 10-2). The Commission also

finds that the aim of the interference was to protect the reputation

or rights of others, namely the plaintiff to the injunction

proceedings. It could also be seen as maintaining the authority of

the judiciary, as the proceedings were technically to enforce a court

order, rather than to vindicate the plaintiff.

The Commission finds that the relevant provisions of

domestic law clearly provided for the imposition of a fine on the

applicant in case of contravention of the injunction of 24 March 1970

(confirmed on 26 June 1970, appeal rejected on 25 January 1971.) The

restriction on the applicant's freedom of expression was accordingly

"prescribed by law".

The Commission must also consider whether the fine imposed on

the applicant was "necessary in a democratic society" for the purposes

established above. States have a certain margin of appreciation in

assessing whether and to what extent an interference is necessary, but

this is coupled with the supervision of the Convention organs covering

both the legislation and the decisions applying it (cf. Eur. Court

H.R., Weber judgment of 22 May 1990, Series A no. 177 p. 22, para. 47,

with further references).

The Commission recalls that the applicant was fined at the

request of the plaintiff to civil proceedings for failure to comply

with an injunction not to repeat the proscribed words, or words to

the same effect. The Commission may not consider the terms of

the 1970 injunction, as the applicant did not contest its imposition,

either before the domestic courts or before the Convention organs.

The Commission notes that the Federal Constitutional Court

found that the interpretation of the passages as falling within the

scope of the injunction was, at the least, tenable. Taking this

together with the self-evident link between the passages at issue in

the 1985 publication and the terms of the injunction, which

included "words to the same effect", the Commission finds that it was

reasonably foreseeable that the applicant ran the risk of enforcement

proceedings following the 1985 publication (cf., in the context of the

interpretation of existing case-law, No. 8710/74, Dec. 7.5.82, D.R. 28

pp. 77, 82). Finally, the Commission finds no indication of a lack of

proportionality in the application of an injunction prohibiting "the

very words or words to the same effect" to passages which could have

been but were not specifically complained of at an earlier date.

Bearing these factors in mind the Commission considers that

the interference with the applicant's freedom of expression was

"necessary in a democratic society" within the meaning of Article 10

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

2. The applicant also alleges a violation of Article 7 para. 1

(Art. 27-1) first sentence of the Convention which provides as

follows:

"No one shall be held guilty of any criminal offence

on account of any act or omission which did not constitute

a criminal offence under national or international law at

the time when it was committed."

The Commission notes that the applicant was fined DM 15,000

for failure to comply with an injunction. The legal basis for the

fine was Article 890 para. 1 of the Code of Civil Procedure, which

clearly and unambiguously provides for a fine or detention in the

case of failure to comply with an order to do or to refrain from doing

something. Even assuming that the fine amounts to a sanction for

performance of a "criminal offence" within the meaning of Article 7

(Art. 7) of the Convention, the Commission notes that the provision

was in force at the time of the "offence", and Article 7 (Art. 7)

cannot be seen to have been violated in this respect. The Commission

also finds, for the reasons indicated above in its consideration of

Article 10 (Art. 10) of the Convention, that it was foreseeable that

the publication of the applicant's book in 1985 would be found to fall

within the scope of the 1970 injunction.

It follows that this part of the application is also

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

(Art. 27-2) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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