Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12194/86

by Michael KÜHNEN

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 12 May 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 11 April 1986

by Michael Kühnen against the Federal Republic of Germany and registered

on 28 May 1986 under file No. 12194/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows:

The applicant, a German citizen born in 1952, is a journalist

currently apparently resident in Butzbach in the Federal Republic of

Germany.

The applicant was in 1983 in a leading position in the

"ANS/NA", an organisation allegedly attempting to reinstitute the

National Socialist Party (NSDAP) prohibited in Germany. According to

the subsequent decision of the Frankfurt Regional Court (Landgericht)

the applicant prepared and disseminated in this context various

publications. For instance, in one "Frankfurt Appeal", he advocated

the fight for an independent, socialist Greater Germany (Kampf für ein

unabhängiges, sozialistisches Grossdeutschland). Another pamphlet

stated:

"We are called 'Neo-Nazis'! So what! ... We are

against: bigwigs, bolshevists, Zionists, crooks, cheats

and parasites. We are against: capitalism, communism,

Zionism, estrangement by means of masses of foreign workers,

destruction of the environment. We are for: German

unity, social justice, racial pride, community of the

people, camaraderie."

"Man nennt uns 'Neo-Nazis'! Na und? ... Wir sind

gegen: Bonzen, Bolschewisten, Zionisten, Gauner,

Schieber und Schmarotzer. Wir sind gegen: Kapitalismus,

Kommunismus, Zionismus, Ãœberfremdung durch

Fremdarbeitermassen, Umweltzerstörung. Wir sind für:

Deutsche Einheit, Soziale Gerechtigkeit, Rassenstolz,

Volksgemeinschaft, Kameradschaft."

In another pamphlet the applicant stated that the ANS/NA would

be dissolved once the NSDAP was reinstituted. In an interview with the

journal "Country-folk" ("Bauernschaft") he stated that: "Whoever

serves this aim can act, whoever obstructs will be fought against and

eventually eliminated" ("Wer diesem Ziel dient, kann wirken, wer es

behindert, wird bekämpft und schliesslich ausgeschaltet").

Criminal proceedings were instituted against the applicant

before the Frankfurt Regional Court on the grounds, inter alia, that

he had issued publications contrary to S.86 of the German Penal Code

(Strafgesetzbuch). S.86 prohibits the dissemination of propaganda by

means of unconstitutional organisations (mittels verfassungswidriger

Organisationen) to the extent that the publications at issue are

directed against the basic order of democracy and freedom and the

notion of the understanding among peoples (gegen die freiheitliche

demokratische Grundordnung oder den Gedanken der Völkerverständigung

gerichtet).

During these proceedings the applicant requested the hearing

of various witnesses who allegedly could prove, inter alia, that he

had not been aware that his publications breached S.86

(Verbotsirrtum). Thus, he requested that directors of elections

(Wahlleiter) be heard as witnesses, as the latter had stated that the

ANS-programme did not violate German penal law. The Regional Court

rejected the request as only the Court itself was competent to draw

such a conclusion. The applicant also requested the preparation of an

expert opinion to prove that a difference existed between the SA

(Sturmabteilung), to whose legal traditions the ANS adhered, and the

NSDAP. This was refused by the Regional Court as its only task was to

decide whether the publications at issue breached S.86 of the Penal

Code.

The Court also dismissed the applicant's requests, inter alia,

to consider as evidence the views of the Frankfurt Public Prosecutor's

Office, or to hear as a witness the chairman of the Committee of

Petitions of the German Bundestag since none of these persons had made

statements which could establish that the publications did not fall

under S.86. For instance, in its procedural decision of 15 January

1985 the Court rejected a request concerning, inter alia, the hearing

of a journalist as a witness on the ground that the applicant had been

previously convicted for such offences and could not therefore claim

that he was not aware of the criminal nature of the publications.

After 13 hearings the Regional Court convicted the applicant

on 25 January 1985, inter alia, of having prepared and disseminated

propaganda material appertaining to an unconstitutional organisation

and sentenced him to 3 years and 4 months' imprisonment. In its

judgment which numbered 77 pages the Court proceeded from the

applicant's statements made in, as well as his various publications

read out before, the Court. It noted that the applicant had admitted

being the author of the various publications.

The Court then discussed in detail his objections according to

which these publications did not fall under S.86 of the Penal Code.

However, the Court found, inter alia, that the applicant's

publications aggressively advocated the reinstitution of the NSDAP and

of national socialism and with it the state of violence and illegality

which existed in Germany between 1933 and 1945. In the Court's view this

clearly violated the basic order of freedom and democracy as well as

the notion of the understanding among peoples. The Court also found

that the publications could revive anti-semitic sentiments in that

they depreciated Zionism and emphasised pride of race. The Court

concluded that the conditions of S.86 had been met and that the

applicant had clearly been aware of the criminal nature of his

publications.

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

against this judgment with the Federal Court of Justice

(Bundesgerichtshof) which on 23 September 1985 dismissed the appeal as

not disclosing any legal errors to the detriment of the applicant. No

further reasons were stated.

The applicant then filed a constitutional complaint (Verfassungs-

beschwerde) in which he complained inter alia of a breach of his

rights to a fair hearing as well as to free beliefs (Weltanschauung)

and the free expression of his opinion. On 25 November 1985 the

Federal Constitutional Court (Bundesverfassungsgericht) did not admit

his constitutional complaint as it did not offer sufficient prospects

of success.

COMPLAINTS

1. Under Article 9 of the Convention the applicant complains that

his prison sentence was determined on the basis of his beliefs, and

under Article 10 that he was punished for the free expression of his

opinion. He claims that in his case the conditions of Article 17 of

the Convention were not met since he was merely advocating the

reinstitution of the NSDAP as a legal party in the present framework

of law and order (im Rahmen der herrschenden Ordnung).

2. The applicant also complains that he did not have a fair trial in

that his requests for the taking of evidence were rejected and that

the decision of the Regional Court contained contradictions. He

complains that the Federal Court of Justice did not give reasons for

its decision and that the Federal Constitutional Court did not admit

his constitutional complaint. In this respect he relies on Article 6

paras. 1 and 3 (d) of the Convention.

3. Under Article 7 para. 1 of the Convention he claims that the

Regional Court convicted him on the basis of legal views which were

not clear at the time. Under Article 14 he complains of an overly

broad interpretation of S.86 of the Penal Code.

THE LAW

1. The applicant complains under Articles 9 and 10 (Art. 9, 10)

of the Convention that he was punished for his beliefs and the free

expression of his opinion. He claims that in his case the conditions

of Article 17 (Art. 17) of the Convention do not apply since he was

merely advocating the reinstitution of the NSDAP as a legal party.

The Commission has examined these complaints under Article 10

(Art. 10-1) of the Convention which in para. 1 guarantees the right to

freedom of expression and, inter alia, the right to impart information

without interference by public authority.

The Commission notes that the applicant was convicted for

issuing publications and that therefore there has been an interference

with the applicant's right to freedom of expression within the meaning

of Article 10 para. 1 (Art. 10-1).

The Commission must therefore examine whether this

interference satisfied the conditions laid down in Article 10 para. 2

(Art. 10-2) of the Convention. Under this provision the exercise of

the freedom of expression, "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 notes first that the applicant's conviction was

based on S.86 of the German Penal Code and, therefore, "prescribed by

law" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

As regards the aim of the measure at issue the Commission

recalls that the freedom of expression constitutes one of the

essential foundations of a democratic society.

With reference to the present case the Commission notes that

the provisions of German penal law under which the applicant was

convicted and sentenced aimed at protecting the basic order of freedom

and democracy and the notion of the understanding among peoples. The

aim was, therefore, legitimate under Article 10 para. 2 (Art. 10-2) as

being established "in the interests of national security (and) public

safety (and) for the protection of the ... rights of others."

In addition, the Commission notes the judgment of the

Frankfurt Regional Court of 25 January 1985 according to which the

applicant's publications aggressively advocated the reinstitution of

the NSDAP and of national socialism and with it the state of violence

and illegality which existed in Germany between 1933 and 1945. The

Court also found that the publications could revive antisemitic

sentiments.

As to the necessity of the measure within the meaning of

Article 10 para. 2 (Art. 10-2) of the Convention the Commission refers

further 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. In particular, the

Commission has found that the freedom of expression enshrined in

Article 10 (Art. 10) of the Convention may not be invoked in a sense

contrary to Article 17 (Art. 17) (see Nos. 8348/78, 8406/78,

Glimmerveen and Hagenbeek v. the Netherlands, Dec. 11.10.79, DR 18 p.

187).

As regards the circumstances of the present case the

Commission again notes the detailed findings of the Frankfurt Regional

Court according to which the publications at issue, by advocating

national socialism, aimed at impairing the basic order of freedom and

democracy. The Commission considers that the applicant's proposals

thus ran counter to one of the basic values underlying the Convention,

as expressed in its fifth preambular paragraph, namely that the

fundamental freedoms enshrined in the Convention "are best maintained

... by an effective political democracy".

The Frankfurt Regional Court also found that the applicant's

publications could revive antisemitic sentiments, inter alia, as they

depreciated Zionism and emphasised pride of race. The Commission

accordingly considers that the applicant's policy clearly contains

elements of racial and religious discrimination.

As a result, the Commission finds that the applicant is

essentially seeking to use the freedom of information enshrined in

Article 10 (Art. 10) of the Convention as a basis for activities which

are, as shown above, contrary to the text and spirit of the Convention

and which, if admitted, would contribute to the destruction of the

rights and freedoms set forth in 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.

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 further complains under Article 6 paras. 1 and 3

(d) (Art. 6-1, 6-3-d) of the Convention that he did not have a fair

trial before the Frankfurt Regional Court. He also complains that the

Federal Court of Justice did not give reasons for its decision and

that the Federal Constitutional Court did not admit his constitutional

complaint.

The Commission has examined these complaints under Article 6

para. 1 (Art. 6-1) of the Convention. Insofar as the applicant

complains that he did not have a fair trial in that his requests for

the taking of evidence and the hearing of witnesses were not granted,

the Commission recalls that Article 6 para. 1 (Art. 6-1) does not

grant an unlimited right to have evidence taken, and it is primarily

the task of the respective courts to decide on the relevance to the

proceedings of the taking of evidence (cf. No. 7450/76, Dec. 28.2.77,

D.R. 9 p. 108).

In the present case the applicant could present his case,

inter alia, at a number of trial hearings before the Frankfurt

Regional Court. That Court's judgment contained on 77 pages a thorough

review of the relevant facts as well as a full reasoning for the

factual and legal conclusions reached. Insofar as the applicant's

requests for the taking of evidence and the hearing of witnesses were

refused, the Commission notes that the applicant had admitted being

the author of the publications at issue and the Court's only task was

to establish whether they contradicted S.86 of the Penal Code. The

Commission does not find it unreasonable that the Court considered that

the applicant, who had previously been convicted for the same

offences, was aware of their criminal nature, and that the Court

therefore regarded the testimony of the witnesses concerned as

irrelevant. The Commission thus sees no indication that the applicant,

who was represented by a lawyer, could not present his case properly,

or that the proceedings were improperly conducted.

Insofar as the applicant complains that the Federal Court did

not give reasons for its decision, the Commission recalls that Article

6 para. 1 (Art. 6-1) does not require that reasons should accompany a

decision where an appeal court, such as the Federal Court of Justice,

basing itself on a specific legal provision, rejects an appeal as

having no chance of success (cf. No. 8769/79, Dec. 16.7.81, D.R. 25

p. 240).

Insofar as the applicant complains that the Federal

Constitutional Court did not admit his constitutional complaint, the

Commission finds no further issue under Article 6 para. 1 (Art. 6-1)

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.

3. The applicant also complains under Article 7 para. 1

(Art. 7-1) of the Convention that the Frankfurt Regional Court convicted

him on the basis of legal views which were not clear at the time. Under

Article 14 (Art. 14) he complains of the overly broad interpretation

of S.86 of the Penal Code. However, the Commission finds no further

issue under these provisions. It follows that the remainder 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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C. A. NØRGAARD)

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KÜHNEN v. THE FEDERAL REPUBLIC OF GERMANY

KÜHNEN v. THE FEDERAL REPUBLIC OF GERMANY