FIFTH SECTION

DECISION

Application no. 56328/10 Boris ERDTMANN against Germany

The European Court of Human Rights (Fifth Section), sitting on 5 January 2016 as a Chamber composed of:

Ganna Yudkivska, President, Angelika Nußberger, André Potocki, Faris Vehabović, Síofra O’Leary, Carlo Ranzoni, Mārtiņš Mits, judges, and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 29 September 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Boris Erdtmann, is a German national who was born in 1964 and lives in Munich. He was represented before the Court by Mr Engels, a lawyer practising in Hamburg.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

3. The applicant is a journalist. After the terrorist attacks of 11 September 2001 in New York, he researched the effectiveness of security checks at four German Airports (Munich, Frankfurt/Main, Düsseldorf and Berlin) and made a short television documentary about his investigation and findings. The programme was shown by a private television channel (Pro7) in Germany and subsequently served as a training video for security personnel.

4. With the prior approval of the television channel, the applicant entered the different airports, passed through the different security check ‑ points and boarded four different aeroplanes, flying from one city to the next. The applicant carried a butterfly knife the whole time. He kept the taped knife in a spectacle case on top of his camera in his camera bag, which he carried as hand luggage on the flights. Footage from a hidden camera, showing his security checks, was shown in the television documentary.

2. The criminal proceedings

5. After the broadcast of the report on 11 February 2002, the public prosecutor charged the applicant with carrying a weapon on board an aeroplane. On 26 August 2002 the public prosecutor offered to discontinue the criminal investigation on the condition that the applicant pays EUR 2000 to a charitable organisation. The applicant rejected the offer.

6. On 1 July 2003 the Düsseldorf District Court convicted the applicant for carrying a weapon ( Mitführen von Waffen ) by virtue of Sections 27 IV no.1 and 60 I no. 8 of the Air Traffic Act (see below, paragraph 10) and sentenced him to a fine of EUR 750 (15 daily rates of EUR 50 each). It held that the conviction was independent from the applicant’s “good” intentions and the fact that his report had led to an improvement in airport security, as the offence of carrying a weapon depended neither on a specific intention of the offender nor on the fact that the weapon led to a specific dangerous situation. The criminal liability stemmed from the sole fact that a weapon on an aeroplane constituted an abstract risk and increased danger for all passengers ( abstraktes Gefährdungsdelikt ). The District Court further found that the applicant’s intention to improve airport security in the long run neither justified nor excused his actions. Moreover, his actions could not be justified by the freedom of the press either, since journalistic freedom did not include a right to break the law. When deciding the applicant’s sentence, the District Court took into account his altruistic motivation, as well as the fact that he did not cause any concrete danger,.

7. On 1 December 2004 the Düsseldorf Regional Court confirmed the judgment in its essence, but deferred the fine. Consequently the applicant was sentenced to a warning with a deferred fine of EUR 750 ( Verwarnung mit Strafvorbehalt ). The Regional Court argued that, due to the clear letter of the law, it was not possible to acquit the applicant. Furthermore, it was not possible to discontinue the proceedings due to the public prosecutor’s refusal to do so. Therefore a warning with a suspended fine was the most lenient sanction possible. The Regional Court further observed that the applicant was not excused by erring about his criminal liability, since he had had ample opportunity to find out about possible criminal sanctions for his conduct. He must have realised that carrying a weapon on an aeroplane was against the law, in particular as he was researching the topic of airport security checks. Consequently he should have sought the assistance of the Pro7 in-house lawyer or contacted – possibly anonymously – the police or airport security. The Regional Court also considered whether the actions of the applicant were justified, because he uncovered serious deficiencies in the security checks. However, it came to the conclusion that for the purposes of his investigation it would have sufficed for the applicant to have disposed of the knife after the security checks but before boarding the aeroplane. Therefore, committing an offence was not necessary, even though understandable from a journalistic point of view, in order to reveal security flaws. Regarding the sentence, the court additionally took the subsequent improvements in airport security into account as well as the fact that the television channel had approved his conduct.

8. On 25 October 2005 the Düsseldorf Court of Appeal rejected in essence the appeal on points of law of the applicant and of the general public prosecutor. The Court of Appeal also rejected the idea that the applicant’s conduct was protected by press freedom. In this respect it referred to a judgment of the Federal Constitutional Court of 11 March 2004 (1 BvR 517/99) in which the latter had stated that illegal actions to create a situation, which would subsequently be the focus of a report, were not protected by the freedom of the press.

9. On 22 March 2010 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint without providing reasons (1 BvR 2664/05).

B. Relevant domestic law

1. Air Traffic Act

10. Section 27 IV of the Air Traffic Act ( Luftverkehrsgesetz ) in force at the relevant time prohibited in general terms carrying weapons or ammunition on board an aeroplane or in non-public areas of an airport. The Federal Ministry of the Interior was authorised to establish exemptions on a general or case-by-case basis. Existing general exemptions included security personnel, customs officers, certain airport personnel and persons specially accredited for real-life tests.

Section 60 I of the German Air Traffic Act penalises deliberate violations of Section 27 IV with a fine or a prison sentence of up to two years.

2. Weapons Act

11. Section 1 VII of the Weapons Act ( Waffengesetz ) in force at the relevant time defined cutting and thrust weapons as weapons, which are basically designed to inflict injury by using direct muscle power to cut, thrust or stab. Therefore, the Federal Court of Justice considered butterfly knives to be cutting and thrust weapons (3 StR 430/04).

3. Criminal Code

12. Article 59 I of the Criminal Code ( Strafgesetzbuch ) reads, in the version in force at the relevant time, as follows:

Conditions for warning and deferment

(1) If a person has incurred a fine not exceeding one hundred and eighty daily units, the court may warn him at the time of conviction, indicate the sentence and defer its imposition if

1. it can be expected that the offender will commit no further offences without the immediate imposition of the sentence;

2. a comprehensive evaluation of the offence and the personality of the offender warrant the existence of special circumstances, which indicate that the offender should be spared from the imposition of a sentence; and

3. reasons of general deterrence do not demand the imposition of a sentence.

The Federal Court of Justice, in a decision of 14 October 2003 (3 StR 316/03), described a warning with a deferred fine as the most lenient sanction provided by the German Criminal Code.

COMPLAINT

13. The applicant complained under Article 10 of the Convention about his conviction for conduct in connection with his research and the production of a television documentary.

THE LAW

14. The applicant complained that his conviction violated his journalistic freedom as part of the right to freedom of expression. He relied on Article 10 of the Convention, which, as far as relevant, provides:

Article 10

“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 (...)

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, (...) or public safety, for the prevention of disorder or crime, (...), for the protection of the reputation or rights of others, (...).”

15. The applicant argued that his conviction constituted an interference which was not justified under Article 10 of the Convention. He stated that it was neither required by a pressing social need nor proportionate, since he improved airport security by broadcasting the programme and did not threaten security. He further pointed out that there was never a concrete danger for any of the passengers on the four aeroplanes, since the knife was securely stowed away.

17. The Court notes that the conviction was “prescribed by law” and that Sections 27 IV and 60 I no. 8 of the German Air Traffic Act serve the legitimate aims of national security and public safety. It finds that the safety of air passengers and the security of air travel are important goals and that a general prohibition of weapons on aeroplanes constitutes a valid measure to reach this aim.

18. The main issue to be determined is, therefore, whether the interference was “necessary in a democratic society”. The fundamental principles concerning this question, which are well established in the Court’s case ‑ law, were summarised in Stoll v. Switzerland [GC] (no. 69698/01, § 101, ECHR 2007 ‑ V) and were reiterated more recently in Pentikäinen v. Finland [GC] (cited above, § 87):

“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...

(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.

(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; ... the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”

19. The Court further reiterates the essential role played by the press in a democratic society. Although the press must not overstep certain boundaries, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” ( Axel Springer AG v. Germany [GC], no. 39954/08, § 79, 7 February 2012).

21. When assessing whether the applicant’s conviction was necessary, the Court will bear in mind that the interests to be weighed in the instant case are both public in nature, namely the security of air travel and the interest of the public to receive information on an issue of general interest. It will examine the applicant’s conviction in order to determine whether the impugned interference, seen as a whole, was supported by relevant and sufficient reasons and was proportionate to the legitimate aims pursued (see Pentikäinen , cited above, § 94).

22. Turning to the facts of the present case, the Court notes at the outset that the applicant’s conviction did not relate to broadcasting the report or filming the security checks with a hidden camera and therefore not to his journalistic activity as such (see Pentikäinen , cited above, § 93). Furthermore, the applicant’s conviction was not based on restrictions specific to the press and he was not fined for overstepping his journalistic duties and responsibilities. The applicant was convicted for carrying a weapon on an aeroplane, based on a general prohibition forming part of the ordinary criminal law. Given the inherent dangerousness of weapons, this criminal offence did not depend on an intention to use the weapon or whether the weapon carried led to a concrete threat on board the aeroplane.

23. The Court observes that the domestic courts did consider the applicant’s role as a journalist, his journalistic freedom and his protection under the right to freedom of expression. However, the courts found that these elements could not justify or excuse the applicant’s conduct. The Regional Court, in particular, considered that the applicant could have revealed the security flaws at the airport without committing a criminal offence, for example by abandoning the attempted offence by disposing of the knife after the security check-points.

24. The Court further observes that the Regional Court found it established that, due to the applicant’s prior research into airport security checks and possibly consulting a legal expert, he must, or could, have known that his actions infringed ordinary criminal law.

25. The Court reiterates that the nature and the severity of the penalty imposed are further factors to be taken into account when assessing the proportionality of the interference ( Stoll , cited above, § 153). In this respect it notes that the domestic courts, when fixing the sentence, took into account that the applicant’s report had in fact increased airport security, that he was a television journalist reporting on an issue of general public interest, and that the knife had been securely stowed away and did not lead to any concrete threat for the other passengers. As a result, the applicant was sentenced to a fine of 15 daily rates which the Regional Court converted into a warning with a deferred fine, the most lenient sentence possible in domestic criminal law, while the maximum penalty was imprisonment for two years.

26. In these circumstances, the Court is satisfied that this penalty would not discourage the press from investigating a certain topic or expressing an opinion on topics of public debate ( Stoll , cited above, § 154, with further references; Haldimann and others v. Switzerland, no. 21830/09, § 67, 24 February 2015).

27. Having regard to all the foregoing factors, the Court does not consider the applicant’s conviction for carrying a weapon on board an aeroplane to have been disproportionate and hence an unjustified restriction of his right to freedom of expression. There is accordingly no appearance of a violation of Article 10 of the Convention.

28. It follows that this complaint must be rejected as manifestly ill ‑ founded, in accordance with Article 35 §§ 3a) and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Done in English and notified in writing on 28 January 2016.

Claudia Westerdiek Ganna Yudkivska Registrar President