AS TO THE ADMISSIBILITY OF
Application No. 25992/94
by Nationaldemokratische Partei Deutschlands,
Bezirksverband München-Oberbayern
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 29 November 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 13 October 1994
by Nationaldemokratische Partei Deutschlands, Bezirksverband München-
Oberbayern against Germany and registered on 19 December 1994 under
file No. 25992/94;
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 facts, as they have been submitted by the applicant, may be
summarised as follows.
The applicant is the Munich-Upper Bavaria regional organisation
(Bezirksverband) of a political party in Germany. In the proceedings
before the Commission the applicant organisation is represented by its
chairman Mr. P.L. Aae, who is resident at Feldkirchen-Westerham.
On 8 May 1991 the Munich Municipality, acting under the Assembly
Act (Versammlungsgesetz), imposed various duties upon the applicant
organisation in respect of a conference organised on the subject
"Germany's future in the shade of political extortion?", scheduled for
the early afternoon of 12 May 1991. The applicant organisation was
ordered to take the appropriate steps to ensure that, on the occasion
of the meeting, the persecution of Jews under the Nazi regime was not
denied or called into question. In particular, it was ordered to
remind the participants, at the beginning of the meeting, of the
criminal liability which such statements could incur under the relevant
provisions of the Penal Code (Strafgesetzbuch) relating to incitement
to hatred, insult or defiling the memory of the dead. Furthermore, the
applicant organisation was ordered to stop any such statements
immediately and, if necessary, to interrupt or terminate the meeting.
The Municipality also decided that an appeal against its above order
should have no suspensive effect.
In its decision, the Municipality noted that the applicant
organisation, in a local as well as in a supra-regional party
publication, had issued invitations to the above-mentioned meeting,
indicating that the "well-known revisionist historian" Mr. D. Irving
would attend it and comment on the question "whether the Germans and
their European neighbours could further afford to accept the
`contemporary history' as means of extortion". The Municipality
considered that, taking into account the text of the invitation, the
general views held by Mr. Irving as well as correspondence exchanged
between him and the applicant organisation in the preparation of the
meeting, there was a high risk that the above-mentioned criminal
offences be committed on the occasion of the meeting. The Municipality
also observed that, when heard on 7 May 1991 on the issue, Mr. Aae had
not been able to dissipate the said suspicion.
On 10 May 1991 the applicant organisation lodged an
administrative appeal (Widerspruch).
The meeting took place on 12 May 1991.
On 9 August 1991 the Government of Upper Bavaria rejected the
administrative appeal in view of the lapse of time. The costs of the
proceedings were awarded against the applicant organisation on the
ground that the appeal would have been unsuccessful.
On 9 September 1992 the Munich Administrative Court
(Verwaltungsgericht) dismissed the request of the applicant
organisation for a finding that the decision of 8 May 1991 had been
unlawful (Fortsetzungsfeststellungsklage). The Administrative Court
found that the decision in question had been lawful and had not,
therefore, violated any rights of the applicant organisation.
The Administrative Court noted that S. 5 (4) of the Assembly Act
allowed for the prohibition of an assembly if there were reasons to
believe that the organiser of the assembly or supporters would make
statements or accept statements made by others which constituted a
criminal offence. This provision would also allow for more lenient
measures such as the obligations imposed upon the applicant
organisation. The Court found that at the relevant time the conditions
under S. 5 (4) had been met as regards the assembly organised by the
applicant organisation. In this respect, the Court argued in detail
that a person denying the persecution of Jews under the Nazi regime was
not covered by the right to freedom of expression but committed
criminal offences and that such statements were likely to be made on
the meeting organised by the applicant organisation.
On 30 June 1993 the Bavarian Administrative Court of Appeal
(Verwaltungsgerichtshof) dismissed the appeal (Beschwerde) of the
applicant organisation. The Court of Appeal confirmed the
Administrative Court's reasoning and in particular that there had been
a real risk that statements constituting criminal offences be made at
the meeting in question. The Court of Appeal did not grant leave to
appeal to the Federal Administrative Court (Bundesverwaltungsgericht).
On 19 November 1993 the Federal Administrative Court refused the
request of the applicant organisation for leave to appeal (Nicht-
zulassungsbeschwerde).
On 13 April 1994 the First Senate of the Federal Constitutional
Court dismissed the constitutional complaint (Verfassungsbeschwerde)
of the applicant organisation as obviously ill-founded. The
Constitutional Court considered that the decision of 8 May 1991 as well
as the ensuing administrative and court decisions, obliging the
applicant organisation to ensure that at the meeting the persecution
of Jews under the Nazi regime was not denied or put into question, did
not amount to a violation of the right to freedom of expression. The
Constitutional Court observed that the applicant organisation had not
challenged the prognosis made by the Munich Municipality and later
confirmed by the administrative courts that there had been a risk of
such statements, but rather claimed the right to make such statements.
The Constitutional Court found that the denial of the persecution of
Jews under the Nazi regime was an untrue statement of fact and referred
in this respect to the countless testimonies of eye-witnesses and
documents, the findings of criminal courts in numerous criminal
proceedings and the findings of historical science. Such statements
were not protected.
The Constitutional Court further stated that, even assuming a
restriction of the freedom of expression regarding the whole meeting,
the impugned decision could not be objected to under constitutional
law. The decision concerned had been based on the Assembly Act. There
had been no violation of the right to freedom of assembly. Moreover,
the obligations imposed upon the applicant organisation related to
statements involving criminal liability and aimed at preventing them.
The general risks for the right to freedom of expression inherent in
preventive measures could be balanced by strict requirements as to the
prognosis of such punishable statements. These requirements were met
with regard to the challenged decisions. In particular, the relevant
provisions of the Assembly Act and the Penal Code, as interpreted by
the Federal Court of Justice (Bundesgerichtshof) in accordance with the
constitutional provisions, had been correctly applied in the instant
case.
COMPLAINTS
The applicant organisation complains under Article 10 of the
Convention about the decision of the Munich Municipality of 8 May 1991,
as confirmed by the German courts, imposing obligations upon the
applicant organisation to prevent statements denying, or putting into
question, the persecution of Jews under the Nazi regime. The applicant
organisation asserts in particular that statements denying the
persecution of Jews under the Nazi regime, in particular the denial of
the existence of gas chambers were protected by the Convention as
statements or opinions relating to contemporary history. In this
respect, the applicant organisation maintains that, according to
scientific research, the gas chambers in Auschwitz were not authentic.
However, the German authorities had incorrectly linked the obligations
imposed upon the applicant organisation to such statements, although
the subject of the meeting was a critical discussion of anti-German
atrocity propaganda and its importance in the political and
psychological manipulation.
THE LAW
The applicant organisation complains about the decision of the
Munich Municipality of 8 May 1991, as confirmed by the German courts,
imposing obligations in respect of a meeting organised by the applicant
organisation. The applicant organisation invokes Article 10
(Art. 10) of the Convention.
Article 10 (Art. 10) of the Convention states, so far as
relevant:
"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 prevention
of disorder or crime, ... for the protection of the reputation
or rights of others ..."
The Commission considers that the impugned measure constituted
an interference with the exercise, by the applicant organisation, of
the right to freedom of expression in respect of the preparation and
conduct of a political meeting. Such interference is in breach of
Article 10 (Art. 10), unless it is justified under paragraph 2 of
Article 10, 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 interference was "prescribed by law", namely the relevant
provisions of the Assembly Act and the Penal Code. These provisions
are accessible to the general public, and, taking into account the
case-law of the German courts on questions of incitement to hatred and
insult, the criminal nature of statements amounting to a denial of the
persecution of Jews was clearly foreseeable to the applicant
organisation.
The interference also pursued a legitimate aim under the
Convention, i.e. "the prevention of disorder and crime" and the
"protection of the reputation or rights of others". It remains to be
ascertained whether the interference can be regarded as having been
"necessary in a democratic society".
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 and to what extent an interference
is necessary, but this margin goes hand in hand with a European
supervision. Thus the measures taken at national level must be
justifiable in principle and proportionate (cf. European Court H.R.,
Observer and Guardian judgment of 26 November 1991, Series A no. 216
pp. 29-30, para. 59).
The Commission finds that the provisions of the Penal Code at
issue, to which the Assembly Act referred, and their application in the
present case, aimed to secure the peaceful coexistence of the
population in Germany. The Commission therefore has also had regard
to Article 17 (Art. 17) of the Convention. This provision reads as
follows:
"Nothing in this Convention may be interpreted as implying for
any State, group or person any right to engage in any activity
or perform any act aimed at the destruction of any of the rights
and freedoms set forth herein or at their limitation to a greater
extent than is provided for in the Convention."
Article 17 (Art. 17) accordingly prevents a person from deriving
from the Convention a right to engage in activities aimed at the
destruction of any of the rights and freedoms set forth in the
Convention, inter alia the right to freedom of expression under
Article 10 (Art. 10) (cf. No. 12194/86, Dec. 12.5.88, D.R. 56 p. 205).
As regards the circumstances of the present case, the Commission
has carefully examined the findings of the Municipal Office in its
decision of 8 May 1991 as regards the risk that statements constituting
criminal offences would be made in the course of the meeting organised
by the applicant organisation. The applicant organisation, in the
domestic proceedings as well as in the proceedings before the
Commission did not argue that there was no such risk. The German
administrative courts and the Federal Constitutional Court, in detailed
decisions, confirmed that the statements at issue were commonly known
untrue factual allegations and not protected by the freedom of
expression. The Constitutional Court also considered the whole of the
intended discussion at the meeting in question and found that the
obligations imposed were lawful and met the stricter requirements as
regards preventive measures.
The Commission finds that statements denying or calling into
question the persecution of Jews under the Nazi regime in the context
of a discussion of "anti-German atrocity propaganda" run counter one
of the basic ideas of the Convention, as expressed in its preamble,
namely the foundation of justice and peace.
The public interests in the prevention of crime and disorder in
the German population due to incriminating statements denying the
persecution of Jews under the Nazi regime, and the requirements of
protecting the reputation and rights of Jews, outweigh, in a democratic
society, the freedom of the applicant organisation to hold a meeting
without being obliged to take steps in order to prevent such
statements. In this respect, the Commission took into account that the
Munich Municipality opted for imposing such obligations on the basis
of considerations of proportionality. Moreover, as to the preventive
nature of the interference at issue, the Commission notes the high
probability of punishable statements of the above kind, given the
subject of the discussion and the participation of Mr. Irving.
In these circumstances, there were relevant and sufficient
reasons for the interference concerned. The decision of the Munich
Municipality of 8 May 1991, as confirmed by the administrative courts
and the Federal Constitutional Court, was therefore, "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 organisation's right under Article 10 (Art. 10) 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy