Lexploria

. AS TO THE ADMISSIBILITY OF

Application No. 17459/90

by K.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 2 July 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. 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 13 September 1990

by K. against the Federal Republic of Germany and registered

on 21 November 1990 under file No. 17459/90;

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, a law professor, is a German citizen, born in

1923 and living in Münster. He is represented by Mr. F. Niepel,

lawyer in Munich.

On 15 March 1989 the applicant was convicted by the District

Court (Amtsgericht) Schwäbisch-Gmünd of duress (Nötigung) pursuant to

Section 240 of the Penal Code (Strafgesetzbuch) * and sentenced to

20 day rates of 150 DM per day. According to the findings of the

Court the applicant, an active pacifist and opponent to atomic

armament, participated on 12 December 1986 in an anti-war

demonstration. Together with other demonstrators he stood before a

gate and refused to move away in order to block the entry to a United

States army compound at Mutlangen. Eventually he was carried away by

two policemen. A United States army truck, driven by witness M., had

been temporarily prevented from moving past the sit-in.

The Court found that the applicant's behaviour constituted

"force" within the meaning of Section 240 of the Penal Code. The

Court further considered that the use of force by the applicant was

objectionable and therefore unlawful. It took into account the

case-law of the Federal Court (Bundesgerichtshof), according to which

only the immediate purpose of the use of force had to be taken into

account and not ultimate objectives (Fernziele). As the immediate

purpose one only had to consider the behaviour of the victim which the

offender sought to obtain by the use of force. The victim had a right

to defend himself against any forceful action directed against him

regardless of the ultimate motives of the aggressor. Therefore the

political aims of the applicant were irrelevant in this context. As

the applicant had sought to hinder an American soldier from driving by

forming a human barrier with others and thereby interfered with that

person's freedom of movement, he had acted unlawfully.

Even taking into account his ultimate motive (Fernziele), his

action was objectionable (sittlich zu missbilligen) as the stationing

of Pershing II missiles, against which the demonstration was directed,

had been decided by a majority of Parliament.

While the adversaries of this policy had the right to protest

against it and set out their arguments in public, they did not have

the right to try to persuade the majority of the people by way of

interference with the rights of others, i.e. to impose their minority

views by forceful means.

The Court further considered that the force used by the

applicant was not unimportant and therefore not irrelevant as the

blockade had been intended to last and could only be broken by lawful

counterforce in that the police carried or led the demonstrators away.

The conviction was, according to the Court, compatible with

the applicant's constitutional right to participate in a peaceful

demonstration as the right to demonstrate did not justify replacing

political argumentation by forceful action with a view to imposing

one's political objectives.

______________

* The relevant part of Section 240 reads: "Everyone who by force or

threatening with grievous harm unlawfully obliges another to act, not

to act or to tolerate is punishable with ..."

_____________

It was the duty of the courts to protect others from being

used as objects for the purpose of publicising a politicial opinion.

While demonstrations by the nature of things normally caused certain

obstructions to others, it could not be tolerated that demonstrators

deliberately interfered with the rights of others in order to raise

public attention.

The fact that the applicant allegedly acted in the public and

not his personal interest could only be taken into account in

connection with the fixing of the sentence. Finally the District

Court rejected the applicant's argument that he had acted in good

faith without realising that he violated criminal law.

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

which was rejected by the Stuttgart Court of Appeal (Oberlandesgericht)

on 23 May 1989 as being ill-founded.

He then lodged a constitutional complaint (Verfassungsbeschwerde)

which was rejected by a group of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) on 8 March 1990

(communicated on 16 March 1990) partly as being inadmissible and

partly as being manifestly ill-founded.

Insofar as the applicant had argued that the reasons stated in

the District Court's judgment were insulting, his complaint was

considered to be inadmissible for non-exhaustion of ordinary

remedies. His complaint that the District Court's reasoning reflected

his own arguments only in a distorted manner was considered to be

unsubstantiated.

Insofar as the applicant had complained of his conviction and

sentence, it is stated that the District Court correctly based its

decision on the "extended" or "spiritualised" notion of "force"

("erweiterter" bzw. "vergeistigter" Gewaltbegriff) as defined in the

jurisprudence of the Federal Constitutional Court. In particular it

had dealt with and sufficiently answered the question whether the

applicant could be considered as having exerted constraint (nötigende

Gewalt). It had in this context also taken into account that the

driver of the United States army truck had possibly received orders

not to use counterforce.

The Federal Constitutional Court also pointed out that

although the District Court had followed the jurisprudence of the

Federal Court (Bundesgerichtshof), according to which the ultimate

aims of the offender were of no relevance, it nevertheless had taken

them into account in weighing whether the applicant's constitutional

rights prevailed over the public demand to prosecute offenders of the

criminal law.

Further it is stated that the possible dangers emanating from

the stationing of missiles do not justify actions that constitute

violations of Section 240 of the Penal Code.

The Federal Constitutional Court concludes that the District

Court's finding as to the applicant's guilt does not disclose any

arbitrariness.

The applicant submits that the application of Section 240 of

the Penal Code in relation to sit-ins is handled in an arbitrary

manner by the prosecution authorities. He states that before 1986

he participated in other, similar demonstrations, together with

prominent personalities, and even laid criminal charges against

himself, but no action was taken by the authorities.

COMPLAINTS

The applicant considers the right to a fair trial to be

violated when among thousands of demonstrators, who all acted in the

same manner as he on 12 December 1986, only a few were eventually

prosecuted. He submits that prosecution for violation by

demonstrators of Section 240 of the Penal Code is handled by the

authorities in a selective and arbitrary manner. Almost exclusively

those who, like the applicant, had demonstrated against mass

destruction weapons had been prosecuted, and the reason was the

political opinion of those demonstrators. Consequently, they had been

discriminated against.

He further complains that he was wrongly convicted on account

of participation in a peaceful sit-in demonstration which was meant

as a justified protest against the deployment of mass destructive

weapons. Finally he complains of the insulting and degrading

character of the reasons stated in the District Court's judgment.

He invokes Articles 3, 6, 7, 8 para. 1, 11 para. 1 and 14 of

the Convention.

THE LAW

1. The applicant first alleges a violation of his right to a fair

trial as guaranteed by Article 6 (Art. 6) of the Convention and of the

principle nulla poena sine lege as embodied in Article 7 (Art. 7) of the

Convention in that Section 240 of the German Penal Code, which

prohibits everyone from unlawfully forcing another person to act or to

omit an action, was wrongly applied in his case contrary to the rule

that penal law may not be extended by analogy in an unforeseeable

manner.

However, the interpretation of national law is principally the

task of the national courts and the Commission's supervision in this

respect is limited to a control as to the reasonableness of such

interpretation (No. 8710/79, Dec. 7.5.82, D.R. 28, 77 (81)). In the

present case the interpretation of Section 240 cannot be found to be

so unreasonable as to make the applicant's conviction and sentence

contrary to the rights invoked by him (cf. No. 13079/87, Dec. 6.3.89,

to be published in D.R. 60).

2. The applicant further alleges that with regard to his right to

a fair trial he has been discriminated against contrary to Article 14

(Art. 14) of the Convention, since the large majority of persons

participating in sit-in demonstrations in Germany are never

prosecuted, whereas prosecutions have been initiated almost

exclusively against those demonstrating against mass destruction

weapons.

The Commission considers, however, that Article 14 (Art. 14) in

conjunction with Article 6 (Art. 6) of the Convention cannot be

understood to require that all persons suspected of having committed a

certain type of offence be prosecuted. Prosecutions may well be

limited to some persons, on condition that those persons are not

selected on discriminatory grounds. In the present case, the

applicant cannot be considered to have substantiated his allegation

that the prosecution against him was based on discriminatory grounds.

3. The applicant has also alleged violations of Articles 3, 8

(Art. 3, 8) and 11 of the Convention. The Commission finds no

appearance of a violation of these provisions nor of the other

provisions invoked by the applicant.

4. It follows that the whole application has to be rejected in

accordance with Article 27 para. 2 (Art. 27-2) of the Convention as being

manifestly ill-founded.

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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K. v. GERMANY

K. v. GERMANY

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