AS TO THE ADMISSIBILITY OF
Application No. 29045/95
by Horst MAHLER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 14 January 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. 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 14 September 1995
by Horst MAHLER against Germany and registered on 2 November 1995 under
file No. 29045/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
16 April 1997, supplementary observations on 27 June 1997 and the
observations in reply submitted by the applicant on 23 May 1997
and 28 July 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1936, is a German national and resident
in Berlin. He is a lawyer by profession.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 16 May 1994 the Berlin Tiergarten District Court (Amtsgericht)
convicted the applicant of insult, pursuant to S. 185 of the German
Penal Code (Strafgesetzbuch) and imposed a fine of DM 2,700 upon him.
According to S. 185 of the Penal Code, insult (Beleidigung) is
an offence punishable with a maximum of one year's imprisonment or a
fine.
The District Court found that the applicant had assisted the
accused Mr. S. in criminal proceedings pending before the Berlin
Regional Court. The bill of indictment, comprising more than
500 pages, had contained one unintelligible sentence, namely that the
applicant had included in a letter of September 1988 a bill dated
May 1990. The applicant, having the impression that the public
prosecutor Mr. B. who had drafted the bill of indictment, was biased
against his client Mr. S. and himself, inter alia lodged various
requests for the taking of evidence. On 12 August 1993, at the trial
before the Regional Court, the applicant had deliberately, and not
subject to a sudden emotion, stated that the Public Prosecutor Mr. B.
had apparently drafted the bill of indictment "in a state of complete
intoxication" ("im Zustand der Volltrunkenheit"). He had further
explained at this hearing that his statement concerned the whole bill
of indictment and that the above-mentioned sentence was only one
particular example.
The District Court considered that the applicant, according to
his own statements, had been aware that he had attacked the
professional reputation of Mr. B. With his statement the applicant had
gone beyond the limits of his right to freedom of expression. While
public officials such as public prosecutors had to accept even harsh
criticism, such remarks had to be made in an appropriate manner. At
a trial, a defence counsel was entitled to raise objective criticism
as to the performance of the competent public prosecutors. However he
must not claim that the person concerned performed his work in a state
of "intoxication", either due to alcohol or under the influence of an
excessive fanaticism in prosecuting the defendant. The remark
concerned was not justified for the protection of the defendant or the
applicant's rightful interests (Wahrnehmung berechtigter Interessen),
but it could only result in straining the atmosphere at the trial. To
the extent that the applicant had been of the opinion that the public
prosecutors had acted unlawfully, he could have laid charges against
them.
On 17 August 1994 the Berlin Regional Court (Landgericht)
rejected the applicant's appeal (Berufung) on the ground that it was
obviously ill-founded. The Regional Court, having regard to all the
material before it, found the trial court's findings convincing.
On 27 February 1995 the Federal Constitutional Court
(Bundesverfassungsgericht) refused to entertain the applicant's
constitutional complaint (Verfassungsbeschwerde). He received the
decision on 24 March 1995.
COMPLAINT
The applicant complains under Article 10 of the Convention about
his conviction of insult by the Tiergarten District Court on
16 May 1994, as confirmed by the Regional Court on 17 August 1994. He
considers that the incriminated statement was no more than a criticism
concerning Mr. B.'s performance. In his observations of 23 May 1997,
the applicant also invokes Article 7 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 September and registered on
2 November 1995.
On 27 November 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
16 April 1997. The applicant replied on 23 May 1997. The Government's
supplementary observations were submitted on 27 June 1997. The
applicant replied on 28 July 1997.
THE LAW
The applicant complains under Article 10 (Art. 10) of the
Convention that his conviction of insult infringed his right to freedom
of expression.
Article 10 (Art. 10) of the Convention, as far as relevant,
provides:
"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 Government maintain that the applicant's complaint is
manifestly ill-founded.
The Commission notes that on 16 May 1994 the Berlin Tiergarten
District Court convicted the applicant of insult on the ground that,
in his position as defence counsel in a hearing before another criminal
court, he had deliberately, and not subject to a sudden emotion, stated
that the Public Prosecutor Mr. B. had apparently drafted the bill of
indictment "in a state of complete intoxication", and that he had also
explained that his statement concerned the whole bill of indictment.
In this respect, the District Court had noted that the rather lengthy
bill of indictment had indeed contained one unintelligible sentence.
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". This is not in dispute between the parties.
The legal basis of the interference under consideration was
S. 185 of the Penal Code.
The applicant considers that this provision is too vague and does
not provide a sufficient legal basis for a conviction. In this
respect, he also relies on Article 7 (Art. 7) of the Convention. The
Government object to his views and explain that the field of
application of S. 185 of the German Penal Code has been clarified in
the framework of a comprehensive case-law.
The Commission has examined the question of the lawfulness of the
applicant's conviction with due regard to Article 7 para. 1 (Art. 7-1),
first sentence, of the Convention, which reads as follows:
"No one shall be held guilty of any criminal offence on account
of any act or omission which did not constitute a criminal
offence under national or international law at the time when it
was committed."
The Commission recalls that, in the field of criminal law,
Article 7 para. 1 (Art. 7-1) confirms the general principle that legal
provisions which interfere with individual rights must be adequately
accessible, and formulated with sufficient precision to enable the
citizen to regulate his conduct (cf. Eur. Court HR, Sunday Times v.
United Kingdom judgment of 26 April 1979, Series A no. 30, p. 31,
para. 49; Kokkinakis v. Greece judgment of 25 May 1993, Series A no.
260-A, p. 22, para. 52). Article 7 para. 1 (Art. 7-1) prohibits in
particular that existing offences be extended to cover facts which
previously clearly did not constitute a criminal offence (cf. No.
6683/74, Dec. 10.12.75, D.R. 3, p. 95; No. 8710/79, Dec. 7.5.82, D.R.
28, p. 77; No. 13079/87, Dec. 6.3.89, D.R. 60, p. 256).
The German Courts found that the applicant's conduct constituted
the offence of insult within the meaning of S. 185 of the Penal Code.
The Commission considers that in the field of conduct governed by the
afore-mentioned provision, no absolute precision in the framing of the
law can be achieved. Rather, the courts enjoy some discretion in
interpreting and applying such general notions (cf. Eur. Court HR,
Sunday Times judgment, loc. cit.). In the present case, the competent
courts could reasonably conclude that the applicant's conduct
constituted the criminal offence of insult within the meaning of S. 185
of the Penal Code. The applicant, a practising lawyer acquainted with
the general legal practice in this field, could clearly foresee the
risk of punishment.
The interference complained of was, therefore, prescribed by law,
for the purposes of Article 10 para. 2 (Art. 10-2), without there being
any indication of a violation of Article 7 para. 1 (Art. 7-1) of the
Convention.
Moreover, the decisions complained of aimed to protect "the
reputation or rights of others", namely the Public Prosecutor Mr. B.,
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 arguments advanced by the parties further concerned the
question of the necessity of the interference.
The applicant submits that the impugned statement, even if
exaggerated, was a criticism of the public prosecutor's performance and
should not have given rise to criminal prosecution.
The Government, having regard to the principles established in
the case-law of the Convention organs, submit that the applicant's
comment was made in criminal proceedings which were of no public
significance. The applicant's comment was made in the context of a
trial hearing. Even if it is in principle permissible to criticise the
performance of public servants such as public prosecutors, higher
demands are made as to the form of such criticism if it is raised in
court, in particular if such a comment is not made spontaneously, but
after due consideration. Thus the applicant was not convicted for his
criticism of the bill of indictment as such, but for having personally
insulted the public prosecutor.
The Commission recalls that the notion of necessity implies a
pressing social need. The Contracting States enjoy a margin of
appreciation in this respect, but this goes hand in hand with a
European supervision which is more or less extensive depending on the
circumstances. In reviewing under Article 10 (Art. 10) the decisions
taken by the national authorities pursuant to their power of
appreciation, the Convention organs have to determine, in the light of
the case as a whole, whether the reasons adduced by them to justify the
interference are "relevant and sufficient" (cf. Eur. Court HR, Sunday
Times (no. 2) v. United Kingdom judgment of 26 November 1991, Series
A no. 217, pp. 28-29, para. 50; Worm v. Austria judgment of 29 August
1997, Reports 1997-V, no. 45, para. 47).
In the present case, the applicant's conviction of insult related
to his remark, in his position as defence counsel at a court hearing,
that the public prosecutor concerned had drafted the bill of indictment
"in a state of complete intoxication". The District Court, in a
detailed reasoning, considered the context of the criminal proceedings
and the court hearing at which the incriminated remark had been made.
It noted in particular that the applicant had made the remark
deliberately and not subject to a sudden emotion and had been aware
that he was thus attacking the professional reputation of the public
prosecutor concerned. Weighing the applicant's right to freedom of
expression against the interest in protecting the public prosecutor's
professional reputation, the District Court concluded that the
applicant had gone beyond the limits of acceptable, even harsh
criticism. These findings were confirmed by the Berlin Regional Court
and the Federal Constitutional Court saw no reasons to entertain the
applicant's constitutional complaint.
The Commission recalls that it has declared inadmissible similar
cases under Article 10 (Art. 10) concerning insulting remarks made by
lawyers about judges in the context of court proceedings. In these
cases the Commission, having particular regard to the detailed
reasoning given by the domestic courts and the balance struck by them
between the lawyer's concern to protect the interests of his client and
the need to protect the reputation and rights of the judges concerned,
found that the interference with the respective applicant's right to
freedom of expression had, in the circumstances of these cases, been
"necessary" within the meaning of Article 10 para. 2 (Art. 10-2) of the
Convention (cf. No. 30549/96, Meister v. Germany, Dec. 10.4.97; No.
30339/96, Bossi v. Germany, Dec. 15.4.97; No. 26602/94, Ratt v.
Austria, Dec. 30.6.97, all unpublished).
In the present case, the Commission finds that the District Court
duly balanced the applicant's right, in pursuing his functions as
defence counsel, to criticise a public prosecutor involved in the
criminal proceedings against his client, or to raise charges about
possibly unlawful conduct of prosecution authorities, against the
necessity, in a democratic society, to protect the reputation and
authority rights of others, here the Public Prosecutor Mr B., against
insult. Having regard to the general professional duties of lawyers
and considering the impugned statement, the Commission finds that there
were relevant and sufficient reasons to impose a fine upon the
applicant for insult. This sanction, i.e. a fine amounting to
DEM 2,700, does not appear disproportionate to the legitimate aim
pursued.
In these circumstances, the interference complained of can be
regarded as "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 this part of 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, 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