AS TO THE ADMISSIBILITY OF
Application No. 36283/97
by Wolfgang, Ingrid, Maya and Iris KELLER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 4 March 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
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 15 May 1997 by
Wolfgang, Ingrid, Maya and Iris KELLER against Germany and registered
on 29 May 1997 under file No. 36283/97;
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 applicants are German citizens. The first and the second
applicants, born in 1937 and 1950 respectively, are a married couple.
The third and fourth applicants, born in 1981 and 1980, are their
daughters. The applicants are members of Scientology, a world-wide
organisation with its international headquarters in Los Angeles
(United States of America), and live in Schwabhausen (Germany).
In the proceedings before the Commission the applicants are
represented by Mr. Douwe Korff, a lawyer and lecturer at Cambridge
University (United Kingdom).
The facts of the case as submitted by the applicants may be
summarised as follows.
Members of the Federal Parliament (Bundestag) in Bonn and of the
Parliaments of the Länder discussed repeatedly the question of
Scientology. They warned that Scientology was particularly dangerous
and considered that it did not constitute a church but instead was much
more like a commercial enterprise.
The Federal Government and the Governments of the Länder adopted
joint strategies with a view to reducing the influence of Scientology
organisations. In various Länder measures were taken to reduce the
influence of Scientology and to warn of its dangers.
The Government of the Land of Bavaria ordered schools to inform
pupils of all ages and their parents about the goals, strategies and
operating procedures of Scientology.
In April 1996, the Bavarian Ministry of Education (Bayerisches
Staatsministerium für Kultus, Wissenschaft und Kunst) published in the
issue of the magazine Schulreport (school report) of April 1996
(issue 1/96) on pages 8 to 10 an article entitled "All clear?
Information about Scientology" ("Alles Clear? Informationen über
Scientology"). 90,000 copies of this report were printed and, apart
from 2,200 copies, distributed to Bavarian schools. The article about
Scientology was also used for teaching purposes in Bavarian schools.
On 23 May and 28 June 1996 the applicants applied to the Munich
Administrative Court (Bayerisches Verwaltungsgericht München) for an
interim injunction (einstweilige Anordnung) restraining the Bavarian
Government (Freistaat Bayern) from disseminating the issue of the
magazine Schulreport of April 1996 and, to the extent it had already
been disseminated, from any longer using it for teaching purposes or
making it accessible to others. Subsidiarily they requested an order
restraining the dissemination of this article with the inclusion of
various passages quoted by them, including the following:
"With a crude mixture of science fiction, psychoanalysis and
manipulative practices of totalitarian systems members of
Scientology are made dependent and their financial and working
capacities are systematically exploited.
Scientology uses techniques of mental control based on deception
and manipulation.
Recognising a Scientology member:
In some cases the behaviour of a person changes as a result of
the mind control exercised over a period of several months, more
typically however within a few days or weeks. Interestingly, the
members develop towards a standard personality (standardisation
of personality attributes of the sect members). From the physical
point of view the following signs are identified as the result
of membership of the sect: a change in weight (corpulence,
anorexia), loss of strength, altered beard-growth, exhaustion
syndrome and psychosomatic illness. Psychological effects are
manifested, inter alia, in a narrowing and weakening of the
process of thinking (differentiation of language and metaphors
or irony, replaced by the use of sect-internal cliches), in the
changing of the emotional state, in strong changes of emotions
and in non-characteristic anti-social behaviour. The occurrence
of hallucinations can also be observed, because daily excessive
auditing can make a person psychologically and physically
addicted to this psycho-technique. This often has damaging side-
effects, such as lowering of cognitive abilities, for example
weak concentration and decision-making. A radical change of
personality is the most revealing sign that a totalitarian group
is at work. ..."
The applicants also refer to comic-strip pictures drawn by
schoolchildren and reproduced on page 9 with the title "Scientology"
and on page 10 with the title "Scientology No!"
In their submissions to the Munich Administrative Court the
applicants argued in particular that the article about Scientology
violated the constitutional requirement of State neutrality in matters
of religion and that the article was not factual and offensive.
On 29 July 1996, the Munich Administrative Court rejected the
applicants' request on the ground that the applicants were not
personally affected by the contested passages and pictures which did
not concern all the members of the Scientology organisation. The court
pointed out that Scientology was an organisation which - according to
information in the contested article - had approximately eight million
members world-wide. It was therefore an indeterminable group of
persons, with regard to which negative statements, which were not
directed at individually determinable members, were lost in the general
multitude of persons, and which therefore did not have any concrete
effect on individual members. The court further noted that some of the
passages invoked by the applicants had not been quoted correctly.
On 20 August 1996, the applicants appealed against this decision.
They submitted detailed reasons for the appeal on 27 August 1996 and
made supplementary submissions on 10 September 1996. The applicants
again argued that the article violated their human rights, and more
specifically their right as parents to educate their children in
accordance with their beliefs, and insofar as their rights as children
were concerned, the right of children to respect for their religious
beliefs.
On 27 September 1996, the Bavarian Administrative Court of Appeal
(Bayerischer Verwaltungsgerichtshof) dismissed the appeal.
The court, relying on rulings by various German courts, including
the Federal Constitutional Court (Bundesverfassungsgericht), the
Federal Court of Justice (Bundesgerichtshof) and the Federal
Administrative Court (Bundesverwaltungsgericht), dealt in some detail
with the German legal approach to the question of when an individual
can be regarded as being directly affected (unmittelbar betroffen) by
a general statement about a group. The court stated, inter alia:
"When defamatory statements are made about a group the latter can
have a right to apply for a restraining injunction
(Unterlassungsanspruch). This is to be distinguished from the
legal position of a member of the group who seeks an injunction
prohibiting specific statements, not on behalf of the group, but
who claims that his individual rights have been affected. The
larger the group is, to which the negative statement relates, the
less the individual member may be personally affected, because
negative statements about large groups mostly concern not
individual wrongdoing or individual characteristics of the
members, but rather the worthlessness, in the view of the person
making the statements, of the collective and its social functions
as well as the associated behavioural demands of the members. On
the imaginary scale, at one end of which stands the individual
defamation of a named or identifiable single person, one can find
at the other end the negative value-judgmental statement about
human characteristics in general, or criticism of social bodies
or matters, which are no longer capable of affecting the honour
of the individual (cf. BVerfG NJW 1995, 3303/3306). Someone who
wants to make a negative statement about a group, is however in
principle also responsible for avoidable effects of his
statements on the honour of a person who, while not as such
intended to be the target of the attack, nonetheless comes in the
way of the attack (cf. BGH NJW 1982, 1805). The intention of the
publisher of the magazine "Schulreport", to inform about and warn
against the Scientology Organisation, therefore does not
necessarily preclude that the claimants were individually
affected. These could however only demand an injunction against
certain statements to the extent that these statements - at least
also - directly affect their strictly personal legal position
(cf. BGH NJW 1980, 1790; BVerwG DÖV 1984, 940 concerning the
appeal against the prohibition of an association). It does not
suffice if they are merely indirectly affected. The criminal law
protection of the honour and the civil law protection of the
personality have been limited with regard to persons who might
be defamed as an indirect result of a statement directed at
someone else, in order not to destroy the system rights regarding
the protection of personal integrity (BGH NJW 1980, 1790). The
situation concerning the protection of personal integrity in
public law can be no different. If a pejorative statement is made
about a group, then a member of the group can only seek a remedy
against this in his own name, when the statement involves a
criterion which is manifestly applicable to all the members of
the group (cf. BayObLG NJW 1990, 1724; BayVGH NVwZ 1994, 787;
BayVBl 1995, 564).
The Administrative Court of Appeal examined the various
statements about Scientology and Scientologists in the article
specifically criticised by the applicants, but concluded that these all
concerned Scientology as an organisation or group, and could not be
said to have directly affected the applicants. According to the court,
it had moreover not been claimed that the children had been directly
confronted with the article in the schoolteaching they received, or
that this was likely in the immediate future.
On 30 October 1996, the applicants lodged a constitutional appeal
with the Federal Constitutional Court. They stressed that injunctive
relief was the only effective remedy in cases concerning the education
of children, since proceedings in the main action would last for a long
period, and would not be terminated until the children had finished
their school education.
On the article itself, the applicants submitted that the
depiction of Scientologists as standard personalities with
characteristics such as obesity/anorexia, loss of strength and altered
beard-growth, whose thinking processes were narrowed and weakened, and
who were held up as conditioned and brain-washed "zombies" without free
will, as well as the assessment of the applicants' beliefs as "a crude
mixture of science fiction, psychoanalysis and manipulative practices
of totalitarian systems" was not a neutral, factual, true and tolerant
informing of schoolchildren.
The applicants further argued that they were directly affected
by the contested article, because, like all Scientologists, they were
depicted as victims of manipulation, mind control and indoctrination,
and as mentally inferior human beings. Their capacity to think for
themselves was denied, and their religious beliefs were derided.
According to them, the State, through the publication of the article,
directly attempted to indoctrinate teachers and school-children, by
creating fear and panic. The educational environment of their daughters
was no longer characterised by tolerance and peaceful coexistence but
by hatred and exclusion. The parents had to fear for an estrangement
from their children, under the influence of the State. They emphasised
that the article prejudiced their rights as parents to ensure the
education and teaching of their children in conformity with their own
religious and philosophical convictions and of the children's right to
be educated in an environment that was open and tolerant towards their
beliefs.
Sitting as a panel of three members, on 19 November 1996 the
Federal Constitutional Court declined to accept the case for
adjudication.
COMPLAINTS
The applicants complain that they do not have any remedy against
the information campaign conducted by the Bavarian authorities and more
specifically that they have been denied an effective remedy against the
dissemination and promotion of a highly defamatory article in the
magazine Schulreport, which was the centre-piece of the overall
governmental campaign against Scientology and its members. The
applicants maintain that they are victims of a violation of their right
to freedom of thought, conscience and religion, and the first and
second applicant of their right to ensure the education and teaching
of their children in conformity with their own religious and
philosophical convictions.
Referring to the cases of Klass and Malone (Eur Court HR, Klass
and others v. Germany judgment of 6 September 1978, Series A no. 28;
Malone v. United Kingdom judgment of 2 August 1984, Series A no. 82),
they consider themselves to be directly affected by the campaign
directly targeted at a specific minority community, in the course of
which the members of that community were described as either brain-dead
zombies or demonic manipulators of enslaved victims. In their village
they are targeted and ostracised. In "enlightenment" evenings and
citizen's initiatives against Scientology they are denounced by name
and their house is referred to in the local press as a lair of
Scientologists.
The applicants allege a violation of Article 9 of the Convention
and of Article 2 of Protocol No. 1. They also invoke Article 13 of the
Convention.
THE LAW
1. The applicants complain that they are the victims of the
information campaign in Bavaria concerning Scientology and in
particular of an article published in the April 1996 issue of the
magazine Schulreport on this organisation. They submit that the article
constitutes a direct attack - couched in prejudiced and unnecessarily
offensive terms - on the peaceful enjoyment of their right to thought,
conscience and religion as guaranteed by Article 9 (Art. 9) of the
Convention.
The applicants also complain that the contested article was
expressly intended to inculcate in all Bavarian schools an atmosphere
of rejection and of intolerance towards the religious beliefs of the
first and second applicant and affected their right as parents to
ensure the education and teaching of their children in accordance with
their own religious and philosophical convictions, as guaranteed by
Article 2 of Protocol No. 1 (P1-2).
The Commission has first examined to what extent the conditions
laid down in Article 25 para. 1 (Art. 25-1) of the Convention have been
met in the present case.
Article 25 para. 1 (Art. 25-1) of the Convention provides:
"The Commission may receive petitions addressed to the Secretary
General of the Council of Europe from any person, non-
governmental organisation or group of individuals claiming to be
the victim of a violation by one of the High Contracting Parties
of the rights set forth in this Convention, provided that the
High Contracting Party against which the complaint has been
lodged has declared that it recognises the competence of the
Commission to receive such petitions. ..."
The Commission recalls that, in order for applicants to be able
to avail themselves of this provision, they must fulfil two conditions:
they must fall into one of the categories of applicants referred to in
that provision and they must be able to claim to be a victim of a
violation of the Convention.
As regards the first condition, the Commission notes that the
applicants, as private persons, clearly fall into the categories of
applicants mentioned in Article 25 (Art. 25) of the Convention.
As for the second condition, the Commission recalls that the
concept of "victim" as used in Article 25 (Art. 25) of the Convention
must be interpreted autonomously and independently of concepts of
domestic law.
The Commission further recalls that an applicant cannot claim to
be the victim of a breach of the rights or freedoms protected by the
Convention unless there is a sufficiently direct connection between the
applicant as such and the injury he maintains he suffered as a result
of the alleged breach (No. 10733/84, Dec. 11.3.85, D.R. 41, p. 211).
The Commission observes that the article complained of contains
information about Scientology and members of this world-wide
organisation in general and is not aimed at any identifiable person
belonging to that organisation. Although the applicants refer to the
negative attitude of their neighbourhood and the local press towards
them, the Commission finds that there is no indication in the file that
this conduct is a result of the information disseminated about
Scientology, in particular of the article complained of. The Commission
therefore finds that the effects of the contested measures are of a too
indirect and remote nature as to affect the applicants' rights under
Article 9 (Art. 9) of the Convention.
Furthermore, there is no indication in the case file that the
first and second applicant's children have ever been confronted in the
schoolteaching they received with the contested article or that they
risk being subjected to indoctrination that might be considered as not
respecting parents' religious and philosophical convictions (see Eur.
Court HR, Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of
7 December 1976, Series A no. 23, p. 26, para. 53).
It follows that this part of the application is incompatible
ratione personae with the provisions of the Convention, within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicants finally complain under Article 13 (Art. 13) of the
Convention that they do not have any remedy against the information
campaign of the German authorities and that they have been denied an
effective remedy against the dissemination of the contested article.
Article 13 (Art. 13) reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
However, the Commission recalls that Article 13 (Art. 13) of the
Convention has no application where, as in the present case, the main
complaint is outside the scope of the Convention (see No. 9984/82, Dec.
17.10.85, D.R. 44, p. 54).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention, within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy