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AS TO THE ADMISSIBILITY OF

Application No. 16617/90

by Melle WACHTMEESTER

against the Netherlands

The European Commission of Human Rights sitting in private

on 12 April 1991, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

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. J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 19 April 1990

by Melle WACHTMEESTER against the Netherlands and registered on 22 May

1990 under file No. 16617/90;

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 relevant facts of the case, as submitted by the applicant,

may be summarised as follows.

The applicant, born in 1950, is a Dutch national, resident in

Wedde, in the Netherlands. He is represented by Mr. Huydecoper, a

lawyer practising in The Hague.

The applicant is a journalist on the local newspaper

"Winschoter Courant". Under the heading "Sale of Reiderland, vultures

have the scent of money in their nostrils" he published an article in

which he mentioned Mr. Van Wijk, Mr. Moed and Mr. Strating as "members

of the usual clan who turns up at every public auction of immovable

property in Eastern Groningen". In the article he wrote also: "The

clan draw their chairs together and discuss. The vultures have the

scent of money in their nostrils." (This article is attached to this

report in Appendix I.)

Mr. Van Wijk and Mr. Moed lodged complaints with the public

prosecutor and the applicant was prosecuted for insult. In his

defence the applicant claimed to have acted in the public interest,

convinced that a group of some twenty people, amongst them Mr. Van

Wijk and Mr. Moed, used undue pressure in public auctions. The

Council of Journalism, which was consulted, considered that the

language used by the applicant was not objectionable.

The applicant was convicted of the offence of simple insult

(Article 266 of the Dutch Criminal Code) and sentenced to a fine of

250 Dutch guilders.

In his appeal to the Supreme Court (Hoge Raad) the applicant

invoked Article 10 of the European Convention on Human Rights as

interpreted in the decisions of the European Court of Human Rights in

the "Sunday Times", "Barthold" and "Lingens" cases.

The Supreme Court confirmed the conviction on 21 November

1989.COMPLAINT

The applicant complains of a violation of Article 10 of the

Convention, in that the impugned court decisions infringed his freedom

of expression.

THE LAW

The applicant complains that the Dutch authorities, by

prosecuting and convicting him of the criminal offence of insult

(belediging), violated his freedom of expression as guaranteed by

Article 10 (Art. 10), which reads:

"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. This Article

shall not prevent States from requiring the licensing of

broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it

duties and responsibiities, 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 applicant argues in particular that the only purpose of

his article was to denounce the practices - in his view, socially

unacceptable - at public auctions of a certain group of persons in

respect of the purchase and sale of houses and business premises. He

argues that it concerns a matter in which the public at large has an

interest. As the scope of Article 10 (Art. 10) is not limited to the

expression of neutral comments but also covers certain offending,

shocking or disturbing statements, the applicant is of the opinion

that his conviction for insult amounts to an unjustified interference

with his freedom of expression.

The Commission observes that the applicant has been sanctioned

for expressing a certain opinion on the behaviour of the group

referred to as "clan" and "vultures".

The applicant's freedom of expression has therefore been

interfered with. It remains to be seen whether the interference was

"prescribed by law", had a legitimate aim and was "necessary in a

democratic society" for the aforesaid aim within the meaning of

Article 10 para. 2 (Art. 10-2) of the Convention (Eur. Court H.R.,

Lingens judgment of 8 July 1986, Series A no. 103, p. 24, paras

35-36).

In the present case the interference with the applicant's

freedom of expression was prescribed by law, as his conviction was

based on Article 266 of the Dutch Criminal Code. It was moreover

designed to protect "the reputation or rights of others" and had

therefore a legitimate aim under Article 10 para. 2 (Art. 10-2) of the

Convention.

In assessing whether the interference was "necessary in a

democratic society" for achieving the above mentioned aim, the

Commission considers that it is the task of the press to impart

information and ideas which the public has a right to receive.

However, the Commission recalls that the limits of acceptable

criticism are less wide as regards a private individual than in the

case of a politician (Eur. Court H.R., ibid., p. 26, para. 42). In

the present case the Commission observes that the behaviour criticised

by the applicant did not concern public or political personalities but

people from a small town in the Netherlands not exercising any public

functions. In the balance between the applicant's freedom of expression

and the right of the public to be informed, on the one hand, and the

protection of the named persons' reputation, on the other, the

Commission notes that it was quite possible for the applicant to

express his criticism without at the same time attacking these persons

in the way he did.

It follows that the interference with the applicant's exercise

of his freedom of expression was a proportionate measure to protect

"the reputation and rights of others" and that it could therefore be

considered to have been "necessary in a democratic society" for that

purpose. The interference was accordingly justified under para. 2 of

Article 10 (Art. 10-2) and the application is 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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WACHTMEESTER v. THE NETHERLANDS

WACHTMEESTER v. THE NETHERLANDS

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