FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 51001/07
by Hans-Jürgen ROSE
against Germany
The European Court of Human Rights (Fifth Section), sitting on
14 September 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva,
Ganna Yudkivska, judges,
and Claudia Westerdiek, Registrar,
Having regard to the above application lodged on 5 November 2007,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Hans-Jürgen Rose, is a German national who was born in 1958 and lives in Munich. He was represented before the Court by
Mr J. Arnold and Mr W. Kaleck, lawyers practising in Pfaffenweiler and Berlin, respectively.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a military officer of the German Bundeswehr holding the rank of a Lieutenant Colonel (Oberstleutnant).
On 27 May 2006 the applicant published an article in the journal “Ossietzky”. “Ossietzky” is a journal for politics, culture and economy which is published bi-weekly with a print run of 2,000 copies per issue. It is available in selected bookshops, by subscription and on the internet.
The article was titled “Spirit or evil spirit of the general officers” (“Geist oder Ungeist der Generalität”) and criticised the process of coming to terms with the army's past and the German generals' role in the Iraq conflict.
Extracts of the article read as follows:
“It can be ruled out that the general officers, for reasons of intellectual deficiency, could not realise what was going on. (...) As stupidity can thus be ruled out, only the second alternative remains as an explanation, which is: opportunism, cowardice, unscrupulousness. (...)
If the German generals had just one spark of sense of honour, justice and morals, the Inspector General and the generals of the different services would have refused to obey the Federal coalition Government's orders which breached international law and were unconstitutional.”
The journal mentioned the applicant's military rank with the addition that the article exclusively contained the author's personal views.
On 24 July 2006 the applicant's supervising officer imposed a disciplinary fine of 750 euros on the applicant for having published statements which were suited to debase his superior generals in a defamatory way.
On 18 August 2006 the applicant's disciplinary appeal was rejected.
On 12 December 2006 the Southern Military Tribunal (Truppendienstgericht Süd) rejected the applicant's further appeal.
That court considered that the applicant had the right publicly to express his opinion even in an exaggerated and polemic way. However, this right had to cede if the statement infringed on another person's human dignity.
The Military Tribunal found that the applicant's statements did not fall within the ambit of the right to freedom of expression (Article 5 of the Basic Law, see “relevant domestic law”, below), because they infringed on the concerned generals' human dignity. It followed that the applicant had disrespected his duties to exercise self-restraint, to respect the dignity, the honour and the rights of his comrades, to maintain discipline and to respect his superiors' rank even when off duty (Articles 10 §§ 1 and 6, 12 (2) and 17 § 1 (2) of the Military Code of Justice (Soldatengesetz), see “relevant domestic law”, below).
On 28 April 2007 the Federal Constitutional Court refused to accept the applicant's constitutional complaint for adjudication for lack of prospect of success. Contrary to the Military Tribunal's finding, the Federal Constitutional Court did not consider that the impugned statements infringed on the concerned generals' human dignity; neither did they amount to abusive insult (Schmähkritik). The right to freedom of expression protected value judgment and statements of facts as a prerequisite to form one's opinion. The statements made by the applicant were an expression of opinion which clearly fell within the ambit of that right.
It followed that the courts had to balance the competing interests in the light of the aim pursued by the relevant provisions of the Military Code of Justice, which was to preserve the proper functioning of the Bundeswehr. This aim had to be preserved by the military officers both in their professional and in their private conduct. The functioning of the Bundeswehr could be jeopardised by private statements which were suited to demoralise and undermine discipline within the army. Under these circumstances, the right to freedom of expression had to cede. According to the Federal Constitutional Court, the Military Tribunal had respected these principles when applying the relevant provisions of the Military Code of Justice. The Military Tribunal had assumed that the applicant had violated his duty to exercise self-restraint with regard to the impugned statements. This could lead to undermining the applicant's own authority and put into question his loyalty. The applicant's statements, in which he denied the generals any sense of honour, justice and morals, were suited to debase the generals and to expose them to derision. This could jeopardise military cooperation, mutual trust and the readiness to stand by one another. Furthermore, the applicant had breached his legal obligation to preserve his superiors' authority, as the terms employed exceeded any form of rational criticism. To preserve the superiors' authority was necessary for the Bundeswehr's internal order. The Federal Constitutional Court considered that this weighing of interests was not objectionable from a constitutional point of view. There was no doubt that the manner the applicant chose for expressing his opinion, in particular the personal attacks, was suited severely to disturb the Bundeswehr's functioning. It did not violate the right to freedom of expression if such behaviour was not permitted, but was treated as a disciplinary offence.
This decision was served on the applicant's counsel on 10 May 2007.
B. Relevant domestic law
Article 5 of the German Basic Law (Grundgesetz), insofar as relevant, reads as follows:
“(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.
...)”
Article 17a of the Basic Law provides:
Article 17a [Restriction of certain basic rights by laws respecting defence and alternative service]
“(1) Laws respecting military and alternative service may provide that the basic right of members of the Armed Forces and of alternative service freely to express and disseminate their opinions in speech, writing, and pictures (first clause of paragraph (1) of Article 5)... be restricted during their period of military or alternative service.”
The relevant provisions of the Military Code of Justice (Soldatengesetz) read as follows:
Article 10 (duties of a superior)
“(1) The superior shall serve as an example both in his actions and in the performance of his duties.
(...)
(6) When making statements on or off duty, officers have the duty to exercise self-restraint in order to maintain confidence in their position as a superior.”
Article 12 (camaraderie)
“The Bundeswehr's unity considerably depends on camaraderie. It obliges all soldiers to respect their comrades' dignity, honour and rights and to stand by them in case of danger and need. This includes mutual respect and the acceptance of other opinions.”
Article 17 (behaviour on and off duty)
“(1) The soldier has the duty to maintain discipline and to respect his superior's position both on and off duty.
(2) His conduct has to comply with the Bundeswehr's reputation and with the respect and confidence necessary for the service as a soldier. When off duty, the soldier has to behave outside the army accommodations and premises in a way that does not seriously impair the Bundeswehr's reputation and the confidence which is necessary for his official standing.”
Article 23 (disciplinary offence)
“(1) A soldier who intentionally breaches his duties commits a disciplinary offence.”
COMPLAINT
The applicant complained under Article 10 of the Convention about the imposition of the disciplinary penalty.
THE LAW
The applicant complained that the imposition of the disciplinary penalty violated his right to freedom of expression under Article 10 of the Convention, which reads as follows:
“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 and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
According to the applicant, the impugned statements had to be regarded as value judgments which fell within the ambit of Article 10 of the Convention. Furthermore, the statements were sufficiently based on facts.
In this respect, the applicant submitted that both the Federal Administrative Court and eminent legal scholars had expressed the opinion that the military operations in Iraq had been incompatible with international law.
The applicant further alleged that the interference with his Convention right was not provided for by law. The term “proper functioning of the Bundeswehr” did not have a legal basis, but was exclusively developed in the Federal Constitutional Court's case-law. This term was too vague to justify a restriction of his Convention rights. There were no concrete facts justifying the assumption that his statements jeopardised the “proper functioning of the Bundeswehr”.
Furthermore, the applicant submitted that there was no pressing social need to restrict his freedom of expression. The article did not in any way impair the functioning of the Bundeswehr or the military order and discipline. The Federal Constitutional Court had failed to take into account that his article was a serious contribution to public debate. The journal in which the article was published was not widely spread in military circles, but was only available in selected bookshops, by subscription and on the internet.
According to the applicant, the Federal Constitutional Court had failed to acknowledge that it was desirable in a democratic society that members of the armed forces were allowed to criticise the Bundeswehr's conduct.
The Military Tribunal had, furthermore, failed to take into account the overall context in which the impugned statements were made. He finally considered that his disciplinary conviction could have a deterring effect on other soldiers wishing to express their opinion.
The Court reiterates that the freedom of expression guaranteed by Article 10 of the Convention applies to servicemen just as it does to other persons within the jurisdiction of Contract States (see, among other authorities, Engel and Others v. the Netherlands, 8 June 1976, § 100, Series A no. 22 and Pasko v. Russia, no. 69519/01, § 66, 22 October 2009).
The Court is therefore satisfied that Article 10 of the Convention is applicable in the present case and that the disciplinary fine imposed on the applicant constituted an interference with his right to freedom of expression. Such interferences infringes Article 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims set out in paragraph 2 of Article 10 and was “necessary in a democratic society” in order to attain those aims.
The Court notes that the imposition of the disciplinary fine was based on Articles 10 §§ 1 and 6, 12 (2) and 17 § 1 of the Military Code of Justice, which provided that officers had the duty to exercise self-restraint when making statements even off duty and that they had to respect the dignity, honour and rights of their comrades and their superiors' position.
The Court acknowledges that the provisions in question were formulated in general terms. It should however be recalled that the level of precision required of domestic legislation depends to a considerable degree on the content of the instrument considered, the field it is designed to cover and the number and status of those to whom it is addressed. As far as military discipline is concerned, it would scarcely be possible to draw up rules describing different types of conduct in detail. It may therefore be necessary for the authorities to formulate such rules more broadly. The relevant provisions must, however, afford sufficient protection against arbitrariness and make it possible to foresee the consequences of their application
(see, inter alia, Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, 19 December 1994, § 31, Series A no. 302).
The Court considers that the provisions laid down in the Military Code of Justice were sufficiently precise to enable the applicant to foresee the consequences of his actions. The Court is therefore satisfied that the interference with the applicant's rights under Article 10 was “prescribed by law”.
The Court further accepts that the measure complained of pursued a legitimate aim, namely to preserve the functioning of the Bundeswehr and thus to maintain order within the armed forces (compare Vereinigung demokratischer Soldaten Österreichs and Gubi, cited above, § 46 and Engel, cited above, § 98). It was furthermore aimed at protecting the general officers' rights and reputation.
As regards the proportionality of the interference at issue, the Court reiterates that the adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists. The proper functioning of an army is hardly imaginable without legal rules designed to prevent servicemen from undermining military discipline, for example by writings. It follows that the relevant provisions of the Military Code of Justice do not in themselves run counter to Article 10 of the Convention (compare Engel, cited above, § 100).
Turning to the circumstances of the instant case, the Court observes that the applicant, a serving high-ranking officer, was fined for having publicly denied his military superiors any “sense of honour, justice and morals” within the context of a critical article dealing with the process of coming to terms with the army's past and the German generals' role in the Iraq conflict. The domestic courts, while acknowledging that the applicant had the right to express his opinion even in an exaggerated and polemic way, considered that the manner the applicant chose for expressing his opinion, in particular the personal attacks directed against the general officers, exceeded any form of rational criticism and was suited severely to disturb the proper functioning of the Bundeswehr. Furthermore, the Federal Constitutional Court, having carefully balanced the applicant's right to freedom of expression against the general interest in the protection of the proper functioning of the Bundeswehr, considered that the applicant's statements were suited to undermine the generals' authority and thus to jeopardise the army's internal order. It follows that the applicant was not sanctioned for expressing his opinion in a public debate, but for attacking the honour and reputation of his superior officers in a way which was considered suitable to jeopardise the proper functioning of the army.
In the light of these circumstances and having regard to the relatively moderate sanction imposed on the applicant, which amounted to a disciplinary fine of 750 euros, the Court considers that the domestic authorities did not overstep the margin of appreciation attributed to them.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy