Information Note on the Court’s case-law 14
January 2000
Hogefeld v. Germany (dec.) - 35402/97
Decision 20.1.2000 [Section IV]
Article 10
Article 10-1
Freedom of expression
Refusal to allow interview of former terrorist before outcome of trial: inadmissible
The applicant is a former member of a left-wing terrorist organisation, the Red Army Fraction. In 1992, the organisation announced that it was suspending its terrorist activities. In 1993, the applicant was arrested and placed in detention on remand. A warrant of arrest was issued against her on the ground, inter alia, that she might engage in further terrorist acts. While the trial was taking place in the Court of Appeal, the applicant made several declarations on her role in the terrorist group and its crimes and more generally on the history of the movement. She made critical comments of the group’s past strategy and denounced certain terrorist acts, but emphasised how much she had been involved in these activities. In addition, she declared, inter alia, that “[their] fight for a different world [was] at any time well-founded and justified” and that what the organisation had done should serve as a lesson for “future fights”. In November 1996, she was sentenced to life imprisonment. In the course of her trial, the Court of Appeal allowed only one interview of the applicant, on the condition that no reference would be made to either the Red Army Fraction or her trial. All other requests from the media were turned down by the court, which considered that it would be contrary to the aim of her detention under section 119 § 3 of the Code of Criminal Procedure in the sense that it would allow her to support the terrorist cause by means of the interviews. Her objections to the refusals were rejected by the Court of Appeal and the Federal Constitutional Court refused to entertain her constitutional complaint, holding that her right to freedom of expression, embodied in the Fundamental Law, had not been infringed.
Inadmissible under Article 10: The fact that the applicant was prevented by the authorities from expressing herself on the Red Army Fraction and her trial in the media constituted an interference with her right to freedom of expression. However, it was prescribed by law and fighting against terrorism is a legitimate aim for any State and can take various forms such as measures preventing terrorist organisations from using the media to spread their ideology and recruit new members. The Court of Appeal relied on the declarations the applicant made during the trial in order to refuse that any interviews be made. Her declarations had proved ambiguous since on the one hand she had criticised the movement’s past activities and on the other had clearly demonstrated her attachment to the movement’s ideology. These statements could not on their own be taken as a promotion of terrorism, but in the light of the applicant’s personal history of involvement in terrorism, they could be interpreted by sympathisers as an appeal to carry on terrorist activities. The restrictions imposed on the applicant’s freedom of expression could thus reasonably regarded as answering a pressing social need, the reasons adduced by the national courts being relevant and sufficient. Having regard to these elements and the State’s margin of appreciation in such matters, the interference was proportionate to the legitimate aims pursued: manifestly ill-founded.
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This summary by the Registry does not bind the Court.
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