AS TO THE ADMISSIBILITY OF
Application No. 12230/86
by S.E.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 12 December 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 November 1985
by S.E. against the Federal Republic of Germany and
registered on 24 June 1986 under file N° 12230/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
&_THE FACTS&S
The facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant, a medical practitioner, is a German citizen,
born in 1915 and living in U.. He is represented in the proceedings
before the Commission by Mr. O. Gritschneder, a lawyer in Munich.
On 28 March 1980 the applicant was convicted by the District
Court (Amtsgericht) in U. of having made insulting remarks
(Beleidigung). He was fined 20 day rates of 80.- DM each.
According to the findings of the Court, the applicant stated
in a discussion between some ten members of a working group of the
evangelic community at U. that "model centres", the creation of which
was suggested by the Confederation of German Trade Unions (DGB) with a view
to functioning as consultative and advisory organs on the question of
whether or not an abortion was admissible under the new legislation,
were in reality "embryo-killer syndicates". He also stated that with
its request to allow more "killings on social grounds" the DGB placed
itself at the same level as the NSDAP. The applicant repeated these
statements in a letter addressed to the regional representative of the
DGB.
The Court considered these statements to be value judgments of
insulting character as it violated the honour of a person or group of
persons to be compared with an association of criminals (killer
syndicate) or with the former Nazi party (NSDAP). It was true that in
a public debate on issues of general interest critical statements had
to be admitted, even if arguments relating to the subject-matter
affected the honour of third persons. However, in the applicant's
case it was not the applicant's arguments but the form in which he
presented them that was insulting and went beyond the admissible
limits.
The applicant's appeal (Berufung) was rejected on 21 March
1984 by the U. Regional Court (Landgericht) which, however,
considered only the comparison with the former Nazi party to be of an
insulting character and reduced the sentence to a warning (Verwarnung)
whilst the imposition of a fine of 20 day rates of 80.- DM each was
suspended. A further appeal (Revision) was rejected on 12 October
1984 by the Stuttgart Court of Appeal (Oberlandesgericht).
The applicant then lodged a constitutional complaint which was
rejected on 24 April 1985 by a group of three judges of the Federal
Constitutional Court (Bundesverfassungsgericht) as offering no
prospects of success. The decision was served on the applicant's
lawyer on 8 May 1985. It states that the criminal courts balanced
the applicant's rights against those of the trade union association
and correctly concluded that the applicant had exceeded the limits
of freedom of expression.
&_COMPLAINTS&S
The applicant considers that the warning was wrongly imposed
on him. He submits that the incriminating statements only
constituted the lawful expression of his religious convictions and of
his opinion that the trade union association acted in violation of the
right to life in supporting abortion.
He invokes Articles 2, 9 and 10 of the Convention.
&_THE LAW&S
The applicant has complained that a warning was imposed on him
by a criminal court for having made statements before a small group of
persons which were considered to be of an insulting character. It is true that
Articles 9 and 10 (Art. 8, 10) of the Convention secure to everyone the right
to manifest his religion or belief and to impart ideas.
However, the exercise of these rights may be subject to such
restrictions or penalties as are prescribed by law and are necessary
in a democratic society, inter alia, for the protection of the reputation of
others (Article 9 para. 2 and Article 10 para. 2 (Art. 9-2, 10-2) of the
Convention). In the present case, the warning against the applicant was
uncontestedly based on a provision of German criminal law.
As to the question of necessity of the warning, the case-law
of the organs set up by the Convention shows that the criterion of
"necessity" cannot be applied in absolute terms but calls for the
assessment of various factors. These include the nature of the right
in question, the degree of interference, the nature of the public
interest and the extent to which it needed to be protected in the
particular circumstances.
In this context the Commission notes that the German courts
underligned that the right to freedom of expression may even justify,
in a public debate on issues of general interest, the use of arguments
relating to the subject-matter which may affect the honour of third
persons. The statements made by the applicant comparing an
association of trade unions with the former German Nazi party (NSDAP)
were, however, considered to go beyond the admissible limits as being
of insulting character not on account of factual issues referred to
but on account of the form in which the applicant presented his
arguments. The applicant was free to express his disagreement with the
attitude of trade unions on the issue of abortion in critical forms
without having to make the incriminating comparison in his letter
addressed to the regional representative of the DGB. Finally, the
Commission notes that the applicant's sentence was reduced to a
warning whereas the imposition of a fine was suspended. This sanction
is not disproportionate to the offence in question. The Commission
concludes that the measure taken against the applicant was justified
as being necessary in a democratic society for the protection of the
reputation of others within the meaning of Article 9 para. 2 (Art. 9-2) and
Article 10 para. 2 (Art. 10-2) of the Convention.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)