FIFTH SECTION

Application no. 43481/09 by PETA DEUTSCHLAND against Germany lodged on 12 August 2009

STATEMENT OF FACTS

THE FACTS

The applicant, PETA Deutschland, is a private association registered in Hamburg . It is represented before the Court by Mr K. Leondarakis , a lawyer practising in Göttingen .

A. The circumstances of the case

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

B . Background to the case

The applicant association is the German branch of the animal rights organisation PETA (People for the Ethical Treatment of Animals). It pursues, inter alia , the aims of preventing animal suffering and of encouraging the public to abstain from using animal products.

In March 2004 the applicant association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”. Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and the text “Between 1938 and 1945 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption”.

In March 2004 thr ee individual persons, P.S., C. K. and S.K., filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form. The plaintiffs were at the time the president and the two vice-presidents of the Central Jewish Council in Germany . All of them had survived the Holocaust when they were children; C.K. lost her family through the Holocaust. They submitted that the intended campaign was offensive and violated their human dignity as well as the per sonality rights of C. K. ’ s dead family members.

On 18 March 2004 the Berlin Regional Court granted the injunction. By judgment of 22 April 2004 that same court confirmed the interim injunction. The court considered that the plaintiffs had a claim to be granted injunctive relief under section 823 §§ 1 and 2 in conjunction with section 1004 of the Civil Code, sections 185 et seq. of the Crim inal Code and Article 1 § 1 and 2 of the German Basic Law (see relevant domestic law, below). According to the Regional Court , the plaintiffs were concerned by the impugned statements in their capacity as former victims of the Holocaust.

The Regional Court further considered that the impugned representations constituted expressions of opinion and where thus protected under Article 5 of the Basic Law. This right protected expressions of opinion even if they were formulated in a polemic or offensive way. The depictions were particularly disturbing and drew a high degree of media attention because the pictures combined on the posters showed seemingly similar situations, which could only be discerned by the fact that one side showed coloured photographs of animals and the other black-and-white photos of humans, both alive and dead. Seen from the point of view of an ordinary spectator, the impugned posters had to be interpreted as putting the fate of the depicted animals and of the depicted humans on the same level.

There was no indication that the applicant association ’ s primary aim was to debase the victims of the Holocaust, as the posters obviously intended to criticise the conditions under which animals were kept and to encourage the spectator to reflect upon these conditions. It followed that the expression of opinion related to questions of public interest and would thus generally enjoy a higher degree of protection when weighing the competing interests. However, in the instant case it had to be taken into account that concentration camp inmates and Holocaust victims had been put on the same level as animals. In the light of the image of man conveyed by the Basic Law, which put the human dignity in its centre and only marginally referred to the protection of animals, this comparison appeared arbitrary because the Holocaust victims were confronted with their suffering and their fate of prosecution in the interest of animal protection. The debasement of concentration camp inmates was thus exploited in order to militate for better accommodations of laying hens and other animals.

The Regional Court finally considered that the decision of the instant case did not depend on a weighing of competing interests, as the expression of opinion violated the plaintiffs ’ human dignity. As a consequence, the right to freedom of expression had to cede. The comparison offended the plaintiffs in their capacity as Holocaust victims by violating the respect for their human dignity. This violation was aggravated by the fact that the depicted persons were shown in a most vulnerable state.

On 27 August 2004 the Berlin Court of Appeal rejected the applicant ’ s appeal.

On 2 December 2004 the Berlin Regional Court , in the main proceedings, ordered the applicant to desist from publishing or from allowing the publication of the seven impugned posters via the internet, in a public exhibition or in any other form. Further to the reasons given in the interim proceedings, the Regional Court considered that it was not its task to determine from a philosophical or ethical point of view whether the suffering of highly developed animals could be compared to human suffering, as the Basic Law put human dignity in its centre.

On 25 November 2005 the Berlin Court of Appeal rejected the applicant ’ s appeal.

On 20 February 2009 the Federal Constitutional Court rejected the applicant ’ s constitutional complaints against the judgments in the interim proceedings and in the main proceedings. With regard to the interim proceedings, the Federal Constitutional Court considered the complaint to be inadmissible, because the applicant lacked a legitimate interest to lodge a constitutional complaint ( fehlendes Rechtsschutzbedürfnis ). After the termination of the main proceedings, the reasons for granting an interim injunction had ceased to exist and the applicant had the right to lodge a request that the interim injunction be lifted.

With regard to the main proceedings, the Federal Constitutional Court considered that the interpretation of the impugned pictures given by the civil courts - according to which the combined representations in conjunction with the texts implied that the suffering inflicted upon the animals was as serious as the suffering of the depicted humans and that the treatment of both was equally reprehensible - was coherent and met the requirements imposed by the right to freedom of expression. It noted that the applicant association itself had favoured this interpretation.

The Federal Constitutional Court expressed its doubts as to whether this expression violated the human dignity of either the depicted persons or the plaintiffs. There was no doubt that the photographs depicted Holocaust victims in situations in which they were highly degraded by their torturers. However, this did not necessarily imply that the use of these pictures also amounted to a violation of the represented persons ’ human dignity. Having regard to the specific circumstances of the instant case, the court considered that the intended campaign did not deny the depicted Holocaust victims their personal value by putting them on a par with animals. Even though the applicant association might generally be convinced of the equality of human and animal suffering, the intended campaign did not pursue the aim to debase, as the pictures merely implied that the suffering inflicted upon the depicted humans and animals was equal.

However, the Federal Constitutional Court did not find it necessary to decide whether the intended campaign violated the plaintiffs ’ human dignity, as the impugned decisions contained sufficient arguments which justified the injunction without reference to a violation of the plaintiff ’ s human dignity. It was, in particular, acceptable that the domestic courts based their decisions on the assumption that the Basic Law drew a clear distinction between human life and dignity on one side and the interests of animal protection on the other and that the campaign was banalising the fate of the victims of the Holocaust. It was, furthermore, acceptable to conclude that this content of the campaign affected the plaintiffs ’ personality rights. Referring to its earlier case-law, the Federal Constitutional considered that it was part of the self-image of the Jews living in Germany that they belonged to a group which had been sampled out by their fate and that a special moral obligation was owed to them by all others, which formed part of their dignity.

The Federal Constitutional Court did not find it necessary to remit the case for re-examination by the lower courts, as there was no indication that the lower courts would come to a different conclusion in case of a remittal. When weighing the competing interests, the plaintiffs ’ legal position could be granted preference over the applicant association ’ s right to freedom of expression even without relying on a violation of the plaintiffs ’ human dignity. The lower courts had put forward sufficient reasons to allow this conclusion. In particular, the courts had begun to weigh the competing interests. Furthermore, they had based their assumption that the impugned campaign violated the plaintiffs ’ right to human dignity on the fact that they considered the violation of the plaintiff s ’ personal honour as particularly serious. As these considerations applied in a similar way to a violation of the plaintiffs ’ personality rights, it had to be assumed that these principles would also guide the courts in case of a remittal.

C . Relevant domestic law and practice

The relevant provisions of the German Basic Law read as follows:

Article 1

“(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

( 2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world .”

Article 5

“(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.

(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.”

Article 20a

Protection of the natural foundations of life and animals

“Mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.”

The relevant provisions of the German Civil Code read as follows:

Section 823

“(1) A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this.

(2) The same duty is held by a person who commits a breach of a statute that is intended to protect another person...”

Section 1004

“(1) If the ownership is interfered with by means other than removal or retention of possession, the owner may require the disturber to remove the interference. If further interferences are to be feared, the owner may seek a prohibitory injunction.”

Section 185 of the Criminal Code reads as follows:

“Insult shall be punished with imprisonment for not more than one year or a fine ...”

According to the constant case-law of the German civil courts, section 823 §§ 1 and 2 in conjunction with section 1004 (in analogous application) of the Civil Code grants any person whose personality rights or whose rights protected by a criminal law concretely risks to be violated by another person a claim to compel that other person to refrain from performing the impugned action.

COMPLAINT S

The applicant association complains that the civil injunctions violated their right to freedom of expression as provided in Article 10 of the Convention.

The applicant association further complains under Article 6 §1 of the Convention that the domestic courts arbitrarily based their judgments on a false assessment of the facts and failed to take into account relevant case ‑ law of the Federal Constitutional Court .

The applicant association finally complained under Article 14 of the Convention about being stigmatised as being anti-Semitic.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention? Reference is made in this context also to the judgment of the Austrian Supreme Court of 12 October 2006 (no. 6 Ob 321/04f) concerning the same applicant organisation.