FIFTH SECTION

Application no. 3690/10 Klaus Günter ANNEN against Germany lodged on 18 January 2010

STATEMENT OF FACTS

The applicant, Mr Klaus Günter Annen, is a German national, who was born in 1951 and lives in Weinheim. He is 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.

On 18 and 19 July 2005 the applicant, who militates against the right to abortion, distributed leaflets in the direct vicinity of the medical practices of the anaesthetists Dr M. and Dr R., who are running a day clinic. Furthermore, the applicant deposited leaflets in all letterboxes in the vicinity of the day clinic.

The front page of the leaflets contained the following text in bold letters (all quotes translated from German):

“In the day clinic Dr M./Dr R. [full a d dress] unlawful abortions are performed”

Followed by an explanation set in smaller letters:

“which are, however, allowed by the German legislator and are not subject to criminal liability. The attestation of counselling protects the “doctor” and the mother from criminal responsibility, but not from the responsibility before God.”

The back of the folded leaflet contained the following text:

“The murder of human beings in Auschwitz was unlawful, but the morally degraded NS-State had allowed the murder of innocent people and did not subject it to criminal liability.”

Below this sentence the leaflet contained a reference to the website “www.babycaust.de”. This website, which was operated by the applicant, contained inter alia an address list of so-called “abortion doctors”, in which the day clinic and the full names of Dr M. and Dr R. were mentioned.

Dr M. and Dr R. filed a request for a civil injunction against the applicant. They submitted that exclusively lawful abortions were performed in their day clinic. The applicant ’ s leaflet created the erroneous impression that the abortions performed were contrary to the relevant legal provisions.

On 22 January 2007 the Ulm Regional Court granted the requested injunction and ordered the applicant to desist from further disseminating leaflets in the direct vicinity of the day clinic containing the plaintiffs ’ names and the assertion that unlawful abortions were performed in the plaintiffs ’ medical practice. The Regional Court further ordered the applicant to desist from mentioning the plaintiffs ’ name s and address in the list of “abortion doctors” on the website “www.babycaust.de”.

The Regional Court considered that the statements on the applicant ’ s leaflet contained the incorrect allegation that the abortions were performed outside the legal conditions. This was not called into question by the further explanation, according to which the abortions were not subject to criminal liability, as the whole setting of the leaflet was intended to draw the reader ’ s attention to the first sentence set in bold letters, while the further additions were set in smaller letters with the intent of dissimulating their content. The Regional Court further considered that the applicant, by singling out the plaintiffs, who had not given him any reasons to do so, had produced a so called “pillory effect”. The allegations raised by the applicant seriously interfered with the plaintiffs ’ personality rights. It followed that the applicant ’ s right to freedom of expression had to cede.

The Regional Court considered that the same principles applied in respect of the mentioning of the plaintiffs ’ names on the website. The mentioning of the plaintiff ’ s name on a website which was labelled “babycaust.de", implying a connection between the plaintiffs and crimes which were, according to the applicant, comparable to the crimes committed by the nazis during the Holocaust, was not covered by the applicant ’ s freedom of expression and had thus not to be tolerated by the plaintiffs.

On 27 October 2007 the Stuttgart Court of Appeal rejected the applicant ’ s appeal. The Court of Appeal did not find it necessary to examine whether the text on the leaflets had to be qualified as a statement of facts or as an expression of opinion, as, in any event, the applicant ’ s freedom of opinion had to cede. The Court of Appeal confirmed the Regional Court ’ s assessment that the text in the leaflet implied that the plaintiffs performed unlawful actions. This was not called into question by the further explanations, as 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, the text on the leaflet created the impression that the act of abortion, as permitted by the German legislator, amounted to unlawful homicide, or even to murder. The statement was at least ambiguous and had not to be tolerated by the plaintiffs.

Even if one were to assume that the leaflet did not contain a wrong statement of facts, the applicant ’ s freedom of expression had to cede. The Regional Court reiterated that freedom of expression conveyed the right to express an opinion even in a polemic and insulting way. In case the expression of opinion was part of a debate on matters of public interest, there was an assumption militating in favour of freedom of expression. However, in the instant case the applicant had produced a massive “pillory effect” by singling out the plaintiffs, who had not given the applicant any reason to do so. The performance of abortions was criticised with harsh and rigid words. This was further aggravated by the Holocaust reference. The Court of Appeal further noted that the applicant was not under any specific pressure to express his general criticism on the facilitation of abortions with such a massive violation of the plaintiffs ’ personality rights.

The Court of Appeal further considered that it had not been necessary for the plaintiffs to submit the exact content of the website, as this website was generally accessible and its content was thus known. The website was characterised by the fact that the applicant labelled certain individuals such as the plaintiffs as “abortion doctors” and put their action on one level with the national-socialist Holocaust and with mass murder. It followed that the plaintiffs ’ claim was to be granted also in this respect.

On 12 February 2008 the Federal Court of Justice refused the applicant ’ s request for legal aid, on the ground that the applicant ’ s intended appeal on points of law lacked sufficient prospect of success.

On 17 March 2008 the applicant lodged a constitutional complaint against the judgments of the Ulm Regional Court , of the Stuttgart Court of Appeal and against the decision of the Federal Court of Justice. He complained, in particular, that the impugned decisions disrespected his right to freedom of expression.

On 2 July 2009 the Federal Constitutional Court , sitting as a Committee of three judges, refused to admit the applicant ’ s complaint for adjudication for being inadmissible. This decision was served to the applicant ’ s counsel on 18 July 2009.

B. Relevant domestic law and practice

The domestic law and the relevant case-law of the Federal Constitutional Court on the performance of abortions is summarised in the Court decision in the case of Annen II v. Germany (dec.), nos. 2373/07 and 2396/07, 30 March 2010.

COMPLAINTS

The applicant complains under Article 10 of the Convention that the civil injunction issued against him violated his right to freedom of expression. He further complains under Article 6 § 1 of the Convention about the fact that neither the Federal Court of Justice nor the Federal Constitutional Court gave reasons for their respective decisions.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

2. Does the civil injunction against the publication of the plaintiff doctors ’ name and address on the website “www.babycaust.de” violate the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention? In particular, was the complete ban of publication proportionate to the aims pursued?

3. Which was the exact content of the website “www.babycaust.de” at the time the civil injunction was granted?