FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application s no. 2373/07 and 2396/07 by Klaus G ü nter ANNEN against Germany

The European Court of Human Rights (Fifth Section), sitting on 30 March 2010 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , Rait Maruste , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, and Claudia Westerdiek , Section Reg istrar ,

Having regard to the above application s lodged on 22 December 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Klaus G ü nter Annen , is a German national who was born in 1951 and lives in Weinheim . He was represented before the Court by Mr L. Lennartz , a lawyer practising in Euskirchen .

A. The circumstances of the case

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

1. The first set of proceedings

On 16 October 2001 the applicant distributed pamphlets to passers-by near gynaecologist Dr K. ’ s medical practice. The front page contained inter alia the following text:

“ Stop unlawful abortions in Dr. K. ’ s medical practice ” („ Stoppt rechtswidrige Abtr eibungen in der Praxis Dr. K.“)

indicating the physician ’ s full name and address. It further contained the following sentences:

“Did you know that unlawful abortions are performed in H. in Dr. K. ’ s practice? ” ( „ Wussten Sie schon, dass in H. in der Praxis von Dr. K. rechtswidrige Abtreibungen durchgeführt werden ? ” )

The verso contained the sentence:

“Please support our struggle against the unpunished killing of unborn children” (“ Bitte , helfen sie uns im Kampf gegen die straflose Tötung ungeborener Kinder.”)

Dr K., who performed abortions in accordance with the legal conditions laid down in Article 218a §§ 1 and 2 of the Criminal Code (see relevant domestic law, below), raised an action for an injunction. He alleged that the applicant ’ s statement was incorrect, as he performed abortions exclusively wi thin the legal framework. On 19 October 2001 the Heilbronn Regional Court ( Landgericht ), by way of an interim injunction, ordered the applicant to desist from further asserting or disseminating the allegation that Dr. K. performed unlawful abortions ( rechtswidrige Abtreibungen ). This interim injunction was confirmed by the Stuttgart Court of Appeal ( Oberlandesgericht ) on 8 May 2002.

The applicant alleged that the impugned statement was correct. Relying on the Federal Constitutional Court ’ s case-law, he pointed out that abortions which were performed under Article 218a § 1 following obligatory counselling, but without medical indication as required by Article 218a § 2, where unjustified and thus unlawful. He further asserted that his statement was covered by his right to freedom of expression.

On 12 March 2003 the Heilbronn Regional Court confirmed the injunction in the main proceedings. Basing its decision on Article 823 in conjunction with Article 1004 of the Civil Code, that court considered that the applicant ’ s statement, seen from the point of view of an unbiased and knowledgeable public, contained the allegation that the abortions were performed outside the legal conditions of Article 218a of the Criminal Code and were thus subject to criminal prosecution. It could not be expected from the average reader to draw the distinction between the act of abortion which was justified under Article 218a § 2 of the Criminal Code and the act of abortion which was merely exempt from prosecution under Article 218a § 1 of the Criminal Code. Seen from a layman ’ s point of view, only those acts of abortions were considered “unlawful” which did not comply with either of the prerequisites laid down in Article 218a of the Criminal Code.

The applicant could not rely on the allegation that the impugned statement was true. Having regard to the fact that the pamphlet was not addressed to lawyers, but to laypersons, it was not decisive whether the statement was true from a strictly judicial point of view.

The Regional Court did not find it necessary to establish whether the impugned statement had to be regarded as a statement of facts or whether it also contained a value judgment. In any event, the physician ’ s interest in the protection of his personality rights prevailed over the applicant ’ s right to freedom of expression. The Regional Court conceded that the impugned statement could be regarded as a contribution to the debate on questions of public interest which merited special protection under the right to freedom of expression. However, in the present case the infringement on the physician ’ s personality rights was so severe that it prevailed over the applicant ’ s right to freedom of expression. The statement did not only concern his professional, but also his personal reputation. On the other hand, the applicant could have easily clarified that the abortions performed by the physician were not subject to criminal liability. The Regional Court finally noted that the physician, who had not actively participated in the public debate on abortion, had not given him any reason to attack him as a private person.

On 18 September 2002 the Stuttgart Court of Appeal rejected the applicant ’ s appeal. That court confirmed the Regional Court ’ s finding that the applicant ’ s statement, seen from the point of view of an “average reader”, contained the accusation that the doctor performed abortions without respecting the legal provisions. Further to the Regional Court ’ s findings, the Court of Appeal considered that the applicant ’ s statements were suited adversely to affect the physician ’ s professional activities by deterring potential clients.

On 1 April 2003 the Federal Court of Justice ( Bundesgerichtshof ) refused to allow the applicant ’ s appeal. That court did not consider it necessary to establish whether the interpretation given to the applicant ’ s statement by the lower courts had been correct. In any event, the applicant had singled out the physician, who had been performing his professional activities within the legal framework, and had produced a “pillory effect” (“ Prangerwirkung ” ) . The entailing violation of the physician ’ s personality rights was so severe that the applicant ’ s right to freedom of expression had to cede.

On 24 May 2006 the Federal Constitutional Court , sitting as a panel of three judges, refused to accept the applicant ’ s complaint for adjudication. That court considered that the interpretation attributed to the applicant ’ s statement by the District Court and the Court of Appeal was not necessarily the only possible one. It noted that the Karlsruhe Court of Appeal had considered in a similar case that the impugned statement did not contain the allegation that the abortions performed were subject to criminal liability. Even accepting the statement ’ s ambiguity, the Constitutional Court considered that the interpretation given by the domestic courts was to be taken into account. The relevant passages read as follows:

“In contrast to the examination of penal or civil law sanctions for a statement which has already been made, when a claim for an injunction to desist from uttering an ambiguous statement in the future is examined, the court has to chose among several possible interpretations the one which violates [the plaintiff ’ s] personality rights or, if this is the case with several interpretations, the one which more seriously violates personality rights. In the present case, this is the interpretation given by the civil courts, and not the interpretation favoured by the complainant with reference to the Karlsruhe Court of Appeal ’ s decision, according to which the statement referred to the distinction between criminal justification and exemption from criminal liability of different kinds of abortions under Article 218a of the Criminal Code.

The complainant ’ s right to freedom of expression is not violated by the request to clarify the content of his statement with regard to further dissemination in order to avoid a conviction to desist from uttering the statement and in the interest of the plaintiff ’ s personality rights. There are no indications that the applicant could not reasonably be expected to clarify that the abortions performed in Dr K. ’ s practice are not subject to criminal liability by using unambiguous words also on the pamphlet ’ s front page.”

The Federal Constitutional Court further confirmed the civil court ’ s finding that the allegation that the physician performed unlawful and thus punishable abortions was untrue, as the physician undisputedly performed abortions within the legal framework. The court further considered that the civil courts had correctly weighed the conflicting interests, that is to say the applicant ’ s right to freedom of expression and the physician ’ s personality rights. With regard to the scope of the applicant ’ s right to freedom of expression, the Constitutional Court found as follows:

“The impugned decisions cannot be understood as preventing the complainant from publicly militating against the exemption from criminal liability and against the performance of abortions and from employing polemic or exaggerated terms. The present case concerned statements which were directed against one single person and infringed that person ’ s personality rights. It follows that that the physician ’ s interests, insofar as they were in conflict with the right to freedom of expression, had to be taken into account.”

The Federal Constitutional Court further considered that there was no objection from a constitutional point of view against taking into account a so-called “pillory effect” derived from singling out one person, as long as the courts adequately weighed the conflicting interests. The Federal Constitutional Court observed that the plaintiff had been identified by his full name and address as a person performing unlawful acts. This constituted a serious violation of his personality rights. Furthermore, the plaintiff had not given the applicant any reason to single him out.

This decision was served on the applicant ’ s counsel on 22 June 2006.

2. The second set of proceedings

On 24 April 2002 the applicant walked up and down the street in front of Dr. K. ’ s medical practice, carrying a poster with the text “abortion kills unborn children” (“ Abtreibung tötet ungeborene Kinder” ) on the front and “You shall not kill. Also applies to doctors” (“ Du sollst nicht töten . Gilt auch für Ärzte ”) on the back. He also addressed passers-by and the physician ’ s presumed patients.

Dr. K. lodged a request for an injunction with the Heilbronn Regional Court , alleging that the applicant ’ s behaviour unsettled and deterred his patients and thus seriously disturbed the proper functioning of his medical practice.

On 10 April 2003 the Heilbronn Regional Court , basing its decision on Article 823 in conjunction with Article 1004 of the Civil Code, ordered the applicant to desist from addressing patients and passers-by in a specified area in front of Dr. K. ’ s medical practice and from pointing out that Dr. K. performed abortions.

The Regional Court considered that the applicant ’ s behaviours disturbed the physician in the performance of his professional activities, which were protected as part of his personality rights. Insofar as the applicant relied on his right to freedom of expression, a fair balance had to be struck between the conflicting interests.

The Regional Court observed that the applicant, by addressing presumed patients in the area of the physician ’ s practice and by drawing public attention to the latter ’ s activities, considerably disturbed the very sensitive relationship between the physician and his patients. This could not only lead to economical disadvantages, but also damaged the physician ’ s reputation.

The Regional Court further considered that the applicant ’ s right to freedom of expression entitled him publicly to criticise physicians performing abortions. However, the means the applicant employed in order to express his criticism in the direct vicinity of this specific physician ’ s premises exceeded the acceptable limit. The financial losses the physician had to envisage as a result of the applicant ’ s behaviour were disproportionate.

On 17 September 2003 the Stuttgart Court of Appeal rejected the applicant ’ s appeal. The Court of Appeal confirmed that the applicant ’ s behaviour was likely to deter the physician ’ s current and potential future patients. While conceding that the applicant had the right publicly to criticise the performance of abortions, the means employed by him had been disproportionate. The Court of Appeal further considered that Dr. K., who had not called for any public attention, had been singled out by the applicant in order to exemplify a general problem, thus producing a “pillory effect”. The Court of Appeal further considered that the applicant had acted with the intention to disturb the physician ’ s relationship to his patients and to cause financial damage.

On 30 March 2004 the Federal Court of Justice granted the applicant leave to lodge an appeal on points of law.

On 7 December 2004 the Federal Court of Justice dismissed the applicant ’ s appeal on points of law. That court confirmed the Court of Appeal ’ s finding that, under the circumstances of this particular case, the physician ’ s personality rights prevailed over the applicant ’ s right to freedom of expression. Further to the Court of Appeal ’ s considerations, the Federal Court of Justice pointed out that the physician ’ s activities were lawful and enjoyed protection under the constitutional right to freedom to exercise his profession. In this context, the court emphasised the important role which the legislator had attributed to the gynaecologists both in the protection of the unborn life and in the protection of the health of the women concerned. It was essential that the relationship of trust between the physician and his patients was not disturbed by the intrusion of external parties. The applicant ’ s actions adversely affected the plaintiff ’ s activities in an unacceptable way.

On 24 May 2006 the Federal Constitutional Court , sitting as a panel of three judges, refused to accept the applicant ’ s constitutional complaint for adjudication as being ill-founded, as it did not find fault with the Federal Court of Justice ’ s decision. This decision was served on the applicant ’ s counsel on 22 June 2006.

B. Relev ant domestic law and practice

The relevant provisions of the criminal code read as follows:

Section 218

Abortion

“(1) Whosoever terminates a pregnancy shall be liable to imprisonment of not more than three years or a fine. Acts the effects of which occur before the conclusion of the nidation shall not be deemed to be an abortion within the meaning of this law.

(2) In especially serious cases the penalty shall be imprisonment from six months to five years. An especially serious case typically occurs if the offender acts against the will of the pregnant woman; or through gross negligence causes a risk of death or serious injury to the pregnant woman.

(3) If the act is committed by the pregnant woman the penalty shall be imprisonment of not more than one year or a fine.

(4) The attempt shall be punishable. The pregnant woman shall not be liable for attempt.”

Section 218a

Exception to liability for abortion

“(1) The offence under section 218 shall not be deemed fulfilled if

the pregnant woman requests the termination of the pregnancy and demonstrates to the physician by certificate pursuant to section 219 (2) 2 nd sentence that she obtained counselling at least three days before the operation; the termination of the pregnancy is performed by a physician; and not more than twelve weeks have elapsed since conception.

(2) The termination of pregnancy performed by a physician with the consent of the pregnant woman shall not be unlawful if, considering the present and future living conditions of the pregnant woman, the termination of the pregnancy is medically necessary to avert a danger to the life or the danger of grave injury to the physical or mental health of the pregnant woman and if the danger cannot reasonably be averted in another way from her point of view.”

The Federal Constitutional Court , in its leading judgment ( BVerfGE 88, 203), accepted in the end abortions being performed by physicians after the pregnant woman having obtained counsel by a third person, and developed a rather singular approach by qualifying certain acts of abortion as unlawful, but not punishable. Abortions which are performed without the establishment of a medical indication must not be treated as being justified ( not unlawful ) ( Schwangerschaftsabbrüche, die ohne Feststellung einer Indikation nach der Beratungsregelung vorgenommen werden, dürfen nicht für gerechtfertigt (nicht rechtswidrig) erklärt werden ). However, abortions performed by a physician within twelve weeks after conception and following obligatory counselling are considered to be unlawful, but are exempt from criminal liability.

COMPLAINTS

The applicant complained under Article 10 of the Convention that the injunctions issued against him violated his right to freedom of expression.

He further complained under Article 6 § 1 about the proceedings before the Federal Constitutional Court .

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

The applican t complained that the injunctions issued against him amounted to a violation of his right to freedom of expression as provided in Article 10 of the Convention, which , insofar as relevant, reads as follows:

“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. ...

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 ... for the protection of the reputation or rights of others, ...”

The applicant complained, in particular, that the Heilbronn Regional court and the Stuttgart Court of Appeal, in the first set of proceedings, had violated the general rules of interpretation by overstepping the limits set by the ordinary meaning of the term “unlawful” (“ rechtswidrig ”) as well as by the context in which the statement was made. According to the applicant, the courts had replaced the term “unlawful” by “forbidden” (“ verboten” ), and thus implying “subject to criminal liability” (“ strafbar ”).

In the second set of proceedings, the applicant complained that the injunction generally prevented him from drawing attention to the performance of abortions on site. This limitation violated his right to freedom of expression, having regard to the fact that his statement was true and that it only concerned the external sphere of the concerned physician ’ s professional activities.

The Court considers that the impugned injunctions interfered with the applicant ’ s right to freedom of expression. It further observes that they were based on Article 823 § 1 in conjunction with Article 1004 of the Civil Code and were thus “prescribed by law” and that they were aimed at protecting the physician ’ s personality rights.

It remains to be determined whether the interferences were “necessary in a democratic society ”. This 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 supervision by the Court (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V).

The Court ’ s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In so doing, the Court must look at the “interference” complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45 , ECHR 1999 ‑ I ). The Court further recalls that the nature and severity of the sanction imposed are also factor to be taken into account when assessing the proportionality of the interference (see Ceylan v. Turkey [GC], no. 23556/94, § 37 , ECHR 1999 ‑ IV ).

Turning to the circumstances of the instant cases the Court notes, at the outset, that the applicant was not subjected to any criminal sanctions or compelled to revoke any of the statements he had made, but that he was ordered under civil law to desist from repeating certain statements regarding the plaintiff physician ’ s professional activities and to refrain from addressing passers-by in the vicinity of the latter ’ s medical practice. The Court concludes that the level of interference with the applicant ’ s rights was relatively low.

Turning to the reasons adduced by the domestic courts the Court notes that, in the first set of proceedings, the courts based their decision on two main considerations: They considered, firstly, that the applicant ’ s statement that the physician performed “unlawful abortions”, seen from the point of view of an average layperson, could and would normally be understood as implying that the physician ’ s activities were subject to criminal liability. While accepting the ambiguity of this statement, the Federal Constitutional Court , which gave the final domestic decision, considered that, for the purposes of the civil injunction proceedings, this interpretation which violated the physician ’ s rights more profoundly was relevant. Secondly, the courts considered that the applicant had produced a so-called “pillory-effect” by singling out the plaintiff, who had not given him any reasons to do so.

In the second set of proceedings, the civil courts, while also referring to the “pillory-effect”, put an emphasis on the fact that the applicant ’ s actions, namely his addressing passers-by and presumed patients in the direct vicinity of the physician ’ s medical practice and to inform them about the latter ’ s performance of abortions, were likely seriously to disturb the exercise of the physician ’ s lawful professional activities, which served the interest of public healthcare.

Turning to the content of the applicant ’ s statement which formed the subject-matter of the first set of proceedings, the Court takes note of the fact that the German law, under Article 218a of the Criminal Court, draws a fine line between abortions which are considered to be “unlawful”, but exempt from criminal liability, and those abortions which are considered as justified and thus “lawful”. It follows that the applicant ’ s statement that the physician performed – among others – “unlawful abortions” was correct from a strictly judicial point of view. However, having regard to the fact that the applicant primarily addressed his statement to laypersons, the Court accepts that the domestic courts also took into account the point of view of a reasonable man with ordinary susceptibility, who would assume that the “unlawful” abortions were forbidden in a stricter sense and subject to criminal liability.

As regards the second statement, the Court notes that the statement that the physician performed abortions, seen as a statement of fact, was undisputedly correct. The Court notes, however, that the civil courts put an emphasis on the circumstances in which the statement was made, in particular the fact that the applicant approached the physician ’ s patients in the direct vicinity of his medical practice, thus seriously disturbing the exercise of his professional activities.

The Court further observes that the domestic courts thoroughly assessed the conflicting interests, that is to say the applicant ’ s right to freedom of expression and the physician ’ s personality rights as well as his protected interest to pursue his professional activities undisturbed. By doing so, they accepted that the applicant ’ s statements could claim special protection under the right to freedom of expression as a contribution to a debate of public interest, while also taking into account that the physician had not taken part in the public debate and had not given the applicant any reason to single him out.

The Court finally observes that the domestic courts did not prevent the applicant from generally criticising the performance of abortions in Germany or even from criticising the concerned physician, but clearly defined the concerned statements and the circumstances under which they should not be made.

Having regard to these considerations and to the margin of appreciation accorded to the domestic authorities, the Court is satisfied that the reasons advanced for the interference complained of were “relevant” and “sufficient” and “proportionate to the legitimate aims pursued”.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained that the proceedings before the Federal Constitutional Court violated his rights under Article 6 § 1 of the Convention, which, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

According to the applicant, the Federal Constitutional Court had arbitrarily refused to accept his complaints for adjudication, in the second set of proceedings without giving reasons.

However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that also this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join t he applications;

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President