AS TO THE ADMISSIBILITY OF
Application No. 30339/96
by Rolf BOSSI
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 15 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 November 1995
by Rolf BOSSI against Germany and registered on 28 February 1996 under
file No. 30339/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1923, is a German national and resident
in Munich. He is a lawyer by profession. In the proceedings before
the Commission, he is represented by Mr. E. Eyl, a lawyer practising
in Strasbourg.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1988 Mr. H. was involved in a traffic accident and was
paralysed as a consequence of his serious injuries. Preliminary
investigations on charges of reckless and drunken driving were
instituted against Mr. C., the owner of the car. In 1989 the Niebüll
District Court (Amtsgericht), sitting with the Single Judge R., refused
to commit Mr. C. for trial on the ground that there was not sufficient
evidence against him. Following further investigations, the competent
Prosecutor's Office (Staatsanwaltschaft) preferred a new indictment
against Mr. C. Mr. H., represented by the applicant, applied to
intervene in these criminal proceedings against Mr. C. On 2 July 1992
Judge R. admitted Mr. H. as intervener and again refused to commit
Mr. C. for trial. In the reasoning, it is stated that there was still
no sufficient probability that the accused would be convicted after a
trial, namely that it could be proven that he had driven the car. In
a concluding remark, it was added that "the mere fact that, without a
criminal conviction, the seriously injured intervener could not obtain
from the liability insurance any compensation for his material and
immaterial damages, could not justify to hold doubts against the
accused" ("Denn allein der Umstand, daß der schwergeschädigte
Nebenkläger ohne eine Verurteilung zu keinem Schadensersatz bzw.
Schmerzensgeldanspruch gegenüber dem Haftpflichtversicherer des
Unfallfahrzeuges kommt ..., kann nicht dazu führen, daß die aufgrund
der Beweissituation bestehenden Zweifel zu Ungunsten des
Angeschuldigten berücksichtigt werden.").
The applicant, on behalf of Mr. H., lodged an appeal against the
decision of 2 July 1992. In his written pleadings, the applicant
commented in detail on the reasoning of the decision. He further
raised the question "whether or not the lack of Judge R.'s moral
strength was more or less flagrant as compared to his obvious
incompetence to act as a judge" ("ob der Mangel an charakterlicher
Eignung größer oder kleiner sei als die zutage getretene Unfähigkeit
zur Ausübung des Richteramtes"). Referring to the above-mentioned last
sentence of the decision, he also stated that "District Court Judge
[R.], as a result of his ignorance of the law and of the relevant case-
law, had become the accomplice of the accused" ("[h]ier macht sich der
Richter am Amtsgericht [R.] mangels Kenntnis der Gesetzeslage und der
dazu vorliegenden höchstrichterlichen Rechtsprechung zum Komplizen des
Angeschuldigten").
In January 1993 the Flensburg Regional Court (Landgericht)
quashed the decision of 2 July and ordered that Mr. C. be committed for
trial. In the ensuing proceedings, Mr. C. was convicted of reckless
driving and of having caused bodily harm. He was sentenced to four
months' imprisonment on probation.
On 17 May 1994 the Niebüll District Court convicted the applicant
of insult, pursuant to S. 185 of the German Penal Code
(Strafgesetzbuch) and imposed a fine of DM 3,000 upon him.
The District Court noted the course of the criminal proceedings
against Mr. C. and the contents of the applicant's appeal submissions
of 21 July 1992. The Court found that the applicant had attacked the
reputation of Judge R. in that, firstly, he had raised the question
whether or not the lack of the Judge's moral strength was more or less
flagrant as compared to his obvious incompetence to act as a judge and,
secondly, had stated that District Court Judge [R.], as a result of his
ignorance of the law and of the relevant case-law, had become the
accomplice of the accused.
As regards the applicant's defence that he had acted for the
protection of Mr. H.'s rightful interests (Ausübung berechtigter
Interessen), the District Court considered that the insulting remarks
at issue had been unnecessary and inappropriate. The applicant had not
intended to raise, even harsh, criticism regarding the court decision
of 2 July 1992, but had insulted the Judge concerned. Even if the last
sentence in the said court decision was redundant, it did not amount
to a provocation justifying the insulting remarks.
In fixing the sentence, the District Court found that the
incriminated statements had to be seen against the situation of the
intervener who had not yet received and, as a consequence of the
decision of 2 July 1992, was further refused any compensation payments.
On 11 October 1994 the Flensburg Regional Court dismissed the
applicant's appeal (Berufung). The Regional Court confirmed that the
incriminated statements amounted to insult and were not justified for
the protection of rightful interests. In this respect, the Regional
Court considered that, in the circumstances of the case, the
applicant's remarks did not constitute an appropriate means to protect
his client's interests. Rather, there was a right to appeal against
the decision of 2 July 1992 and the applicant, on behalf of the
intervener, availed himself of this remedy. This remedy was eventually
successful. The applicant was entitled to raise, in his appeal
submissions, harsh criticism regarding the attacked decision and
express his and his client's disappointment and resentment. However,
insulting attacks on the judge's personal integrity were neither
appropriate nor necessary. In this respect, the Regional Court, having
regard to the case-law on the right to freedom of expression,
considered that the applicant's remarks went beyond permissible
criticism.
On 29 March 1995 the Schleswig Court of Appeal (Oberlandes-
gericht) dismissed the applicant's appeal on points of law (Revision).
On 31 August 1995 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to entertain the applicant's constitutional
complaint (Verfassungsbeschwerde). The decision was served on
11 September 1995.
COMPLAINT
The applicant complains under Article 10 of the Convention about
his conviction of insult by the Niebüll District Court on 17 May 1994,
as confirmed by the Regional Court on 11 October 1994 and by the Court
of Appeal on 29 March 1995. He considers that the incriminated
statements in his written pleading of 21 July 1992 did not go beyond
the limits of permissible criticism regarding the competent judge's
performance.
THE LAW
The applicant complains that his conviction of insult by the
Niebüll District Court on 17 May 1994, as confirmed by the Regional
Court on 11 October 1994 and by the Court of Appeal on 29 March 1995,
infringed his right to freedom of expression. He invokes Article 10
(Art. 10) of the Convention which provides 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
...
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 Commission notes that on 17 May 1994 the Niebüll District
Court found the applicant guilty of insult. The Disciplinary Court
considered that, in written appeal submissions, the applicant had
attacked the reputation of Judge R. The applicant's conviction was
confirmed upon appeal by the Flensburg Regional Court and the Schleswig
Court of Appeal.
The Commission finds that this measure constituted an
interference with the exercise of the applicant's freedom of
expression. Such interference is in breach of Article 10 (Art. 10),
unless it is justified under paragraph 2 of Article 10 (Art. 10-2),
i.e. it must be "prescribed by law", have an aim or aims that is or are
legitimate under Article 10 para. 2 (Art. 10-2) and be "necessary in
a democratic society".
The legal basis of the interference under consideration was
S. 185 of the German Penal Code. The interference complained of was,
therefore, "prescribed by law" for the purposes of Article 10 para. 2
(Art. 10-2).
Moreover, the decisions complained of aimed to protect "the
reputation or rights of others", namely the judge affected by the
applicant's statements, which is a legitimate aim under Article 10
para. 2 (Art. 10-2).
It remains to be determined whether the interference complained
of was "necessary in a democratic society" and proportionate to the
legitimate aim pursued.
The Commission recalls that the adjective "necessary" within the
meaning of Article 10 para. 2 (Art. 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 a European supervision (cf. Eur. Court HR, Observer
and Guardian v. the United Kingdom judgment of 26 November 1991, Series
A no. 216, pp. 29-30, para. 59; see also No. 14622/89, Dec. 7.3.91,
loc. cit.).
The Commission notes that criminal proceedings were conducted
against the applicant for having insulted Judge R. in written appeal
statements relating to criminal proceedings in which he had represented
the victim of the offence.
The Commission considers that both the District Court and the
Regional Court, in detailed reasoning, examined the applicant's
submissions which were considered to be of an insulting nature. The
Courts had regard to the applicant's concern to protect the rightful
interests of his client. However, they considered that the insulting
remarks in question had been unnecessary and inappropriate, and went
beyond permissible criticism. The applicant's constitutional complaint
with the Federal Constitutional Court remained unsuccessful.
The Commission finds that the Courts duly balanced the
applicant's concern to protect the rightful interests of his client and
right to formulate criticism against the necessity, in a democratic
society, to protect the reputation and rights of others, here a judge,
against insult. Having considered the impugned statements, the
Commission finds that there were relevant and sufficient reasons for
the applicant's conviction of insult.
Moreover, the sanction chosen, i.e. a fine amounting to DEM 3,000
does not appear disproportionate to the legitimate aim pursued.
In these circumstances, the interference complained of was
"necessary in a democratic society" within the meaning of Article 10
para. 2 (Art. 10-2) of the Convention.
Accordingly, there is no appearance of a violation of the
applicant's right under Article 10 (Art. 10) of the Convention.
It follows that the application is manifestly ill-founded with
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy