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E. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 12230/86 • ECHR ID: 001-448

Document date: December 12, 1987

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E. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 12230/86 • ECHR ID: 001-448

Document date: December 12, 1987

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 12230/86

by S.E.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 12 December 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

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 5 November 1985

by S.E. against the Federal Republic of Germany and

registered on 24 June 1986 under file N° 12230/86;

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&S

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

summarised as follows:

The applicant, a medical practitioner, is a German citizen,

born in 1915 and living in U.. He is represented in the proceedings

before the Commission by Mr. O. Gritschneder, a lawyer in Munich.

On 28 March 1980 the applicant was convicted by the District

Court (Amtsgericht) in U. of having made insulting remarks

(Beleidigung). He was fined 20 day rates of 80.- DM each.

According to the findings of the Court, the applicant stated

in a discussion between some ten members of a working group of the

evangelic community at U. that "model centres", the creation of which

was suggested by the Confederation of German Trade Unions (DGB) with a view

to functioning as consultative and advisory organs on the question of

whether or not an abortion was admissible under the new legislation,

were in reality "embryo-killer syndicates". He also stated that with

its request to allow more "killings on social grounds" the DGB placed

itself at the same level as the NSDAP. The applicant repeated these

statements in a letter addressed to the regional representative of the

DGB.

The Court considered these statements to be value judgments of

insulting character as it violated the honour of a person or group of

persons to be compared with an association of criminals (killer

syndicate) or with the former Nazi party (NSDAP). It was true that in

a public debate on issues of general interest critical statements had

to be admitted, even if arguments relating to the subject-matter

affected the honour of third persons. However, in the applicant's

case it was not the applicant's arguments but the form in which he

presented them that was insulting and went beyond the admissible

limits.

The applicant's appeal (Berufung) was rejected on 21 March

1984 by the U. Regional Court (Landgericht) which, however,

considered only the comparison with the former Nazi party to be of an

insulting character and reduced the sentence to a warning (Verwarnung)

whilst the imposition of a fine of 20 day rates of 80.- DM each was

suspended. A further appeal (Revision) was rejected on 12 October

1984 by the Stuttgart Court of Appeal (Oberlandesgericht).

The applicant then lodged a constitutional complaint which was

rejected on 24 April 1985 by a group of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) as offering no

prospects of success. The decision was served on the applicant's

lawyer on 8 May 1985. It states that the criminal courts balanced

the applicant's rights against those of the trade union association

and correctly concluded that the applicant had exceeded the limits

of freedom of expression.

&_COMPLAINTS&S

The applicant considers that the warning was wrongly imposed

on him. He submits that the incriminating statements only

constituted the lawful expression of his religious convictions and of

his opinion that the trade union association acted in violation of the

right to life in supporting abortion.

He invokes Articles 2, 9 and 10 of the Convention.

&_THE LAW&S

The applicant has complained that a warning was imposed on him

by a criminal court for having made statements before a small group of

persons which were considered to be of an insulting character. It is true that

Articles 9 and 10 (Art. 8, 10) of the Convention secure to everyone the right

to manifest his religion or belief and to impart ideas.

However, the exercise of these rights may be subject to such

restrictions or penalties as are prescribed by law and are necessary

in a democratic society, inter alia, for the protection of the reputation of

others (Article 9 para. 2 and Article 10 para. 2 (Art. 9-2, 10-2) of the

Convention). In the present case, the warning against the applicant was

uncontestedly based on a provision of German criminal law.

As to the question of necessity of the warning, the case-law

of the organs set up by the Convention shows that the criterion of

"necessity" cannot be applied in absolute terms but calls for the

assessment of various factors. These include the nature of the right

in question, the degree of interference, the nature of the public

interest and the extent to which it needed to be protected in the

particular circumstances.

In this context the Commission notes that the German courts

underligned that the right to freedom of expression may even justify,

in a public debate on issues of general interest, the use of arguments

relating to the subject-matter which may affect the honour of third

persons. The statements made by the applicant comparing an

association of trade unions with the former German Nazi party (NSDAP)

were, however, considered to go beyond the admissible limits as being

of insulting character not on account of factual issues referred to

but on account of the form in which the applicant presented his

arguments. The applicant was free to express his disagreement with the

attitude of trade unions on the issue of abortion in critical forms

without having to make the incriminating comparison in his letter

addressed to the regional representative of the DGB. Finally, the

Commission notes that the applicant's sentence was reduced to a

warning whereas the imposition of a fine was suspended. This sanction

is not disproportionate to the offence in question. The Commission

concludes that the measure taken against the applicant was justified

as being necessary in a democratic society for the protection of the

reputation of others within the meaning of Article 9 para. 2 (Art. 9-2) and

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

It follows that 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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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