AS TO THE ADMISSIBILITY OF
Application No. 16315/90
by S.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 11 July 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 February 1990
by S. against the Federal Republic of Germany and
registered on 19 March 1990 under file No. 16315/98;
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 applicant is a German citizen born in 1912. He lives in
Gudensberg and is represented before the Commission by Sieghart Ott
and Fraulob Ulrich, lawyers of Munich. The facts of the case, as
submitted by the applicant's representatives, may be summarised as
follows.
In 1970 the applicant published a book entitled "The Federal
German Dreyfus affair - Law Breaking and Refusal to Think in the 10
year old Brühne-Ferbach Affair" ("Der bundesdeutsche Dreyfus-Skandal,
Rechtsbruch und Denkverzicht in der zehn Jahre alten Justizsache
Brühne-Ferbach"). The book contained the following passage, which is
also repeated on the back cover:
(Translation)
"If the rumour will not go away that Vera Brühne and
Johann Ferbach have been serving a life sentence for 8 years
in order that obscurity shall continue to surround Strauss'
involvement in an affair which ended in murder - the
obscurity surrounding the way in which a salaried employee
could amass an enormous fortune - then it is the statesman's
own fault. In a normal democracy he would long since have
had criminal proceedings brought against Hentges for
defamation."
(German)
"Wenn das Gerücht nicht zur Ruhe kommt, daß Vera Brühne und
Johann Ferbach auf Lebzeiten seit nun acht Jahren in
Zuchthaus sitzen, damit mindestens Straußens Verwicklung in
eine Affäre, die in Mord gipfelte, dunkel bleibe: so
verhüllt wie der Weg, auf welchem ein Gehaltsempfänger zu
einem riesigen Vermögen eigentlich kommen konnte, ist der
Staatsmann selbst schuld daran. In einer normalen
Demokratie hätte er Hentges wegen Verleumdung längst
angezeigt."
On 24 March 1970 an interim injunction was granted to then
Federal Defence Minister, Franz Josef Strauss, against the applicant by
the Munich Regional Court (Landgericht) I. The injunction provided as
follows:
(Translation)
"On pain of an unlimited fine or up to 6 months
imprisonment for each contravention, the defendants ....
shall refrain from maintaining and broadcasting, whether
using the very words or words to the same effect, that the
rumour will not go away that Vera Brühne and Johann Ferbach
have been serving a life sentence for 8 years in order that
obscurity shall continue to surround the plaintiff's
involvement in an affair which ended in murder."(Emphasis added)
(German)
"Den Antragsgegnern wird bei Meidung einer Geldstrafe in
unbeschränkter Höhe oder Haftstrafe bis zu 6 Monaten für
jeden Fall der Zuwiderhandlung - .... verboten, wörtlich oder
sinngemäß zu behaupten oder zu verbreiten: Es komme das
Gerücht nicht zur Ruhe, daß Vera Brühne und Johann Ferbach
auf Lebzeiten seit nun 8 Jahren im Zuchthaus sitzen, damit
mindestens die Verwicklung des Antragstellers in eine
Affäre, die in Mord gipfelte, dunkel bleibe." (Emphasis added)
The injunction was confirmed by the Regional Court on 26 June
1970. The applicant's appeal (Berufung) was rejected by the Munich
Court of Appeal (Oberlandesgericht) on 25 January 1971.
In September 1985 the applicant published a book entitled
"The Past which would not end - Power Mania, Business and
Constitutional Betrayal in the Brühne-Ferbach Scandal" ("Die
Vergangenheit, die nicht endete - Machtrausch, Geschäft und
Verfassungsverrat im Justizskandal Brühne-Ferbach").
On 6 February 1986 Franz Josef Strauss, who was then Prime
Minister of Bavaria ("the plaintiff") applied for a sanction
(Ordnungsmittel) pursuant to Article 890 para. 1 of the Code of Civil
Procedure (Zivilprozessordnung). The plaintiff alleged that the
applicant, as publisher of the whole and author of some of the
contributions, had contravened the injunction of 24 March 1970 in
several respects. On 14 May 1986 the Regional Court found that the
following five passages contravened the injunction:
(Translation)
"a) At page 12 of the book: 'One of his theories - now
reproduced in this volume - that Frau Brühne became involved
in high politics, and a statement of BND-agent Hentges that
Strauss knew about the events concerning Praun, had a
terrible confirmation.'
b) At page 115 of the book: 'It is quite certain that
you are aware [Mr. Strauss] that I wish to have nothing at
all to do with this matter and that I knew nothing about the
intentions of your two confidents beforehand. I disapprove
of such use of violence, and there were other, more elegant
ways of bringing our opponent to his senses.'
c) At page 121 of the book: 'Your question is a good
one, of course, Hentges' statement permits only two
interpretations in logic, either Strauss had proceedings
brought against him for malicious accusation, or proceedings
be brought against Strauss because of the role he played in
the background of the affair according to Hentges.'
d) At page 122 of the book: 'In a normal democracy
[Strauss] would long since have had criminal proceedings
brought against Hentges for defamation.'
e) At page 132 of the book: 'However dubious the
background of Roger Hentges may be, by maintaining that
Praun was killed in the presence of Strauss' Adjutant
General Repenning, he not only brought 'high politics' into
things, but he also, without being able to prove it at the
time, gave an explanation for the fact that victims Praun
and Kloo were in fact still alive at 19.45 on 14.4.1960.'"
(German)
"a) Auf Seite 12 des Buches: 'Eine seiner - jetzt wieder in
diesem Band nachlesbaren - Theorien, Frau Brühne sei
ungewollt Spielball der großen Politik geworden und die
Aussage des BND-Agenten Hentges, Strauß sei über die
Geschehnisse um Praun informiert gewesen, fanden eine
grausame Bestätigung.'
b)Auf Seite 115 des Buches: 'Es ist Ihnen, sehr geehrter
Herr Bundesminister (gemeint Strauß), ohne irgendeinen
Zweifel bekannt, daß ich mit dieser Angelegenheit nichts zu
tun haben will und ich von den Absichten ihrer zwei
Vertrauenspersonen vorher nicht informiert gewesen bin. Ich
bin gegen solche Gewaltanwendungen, und es gab noch andere
elegantere Möglichkeiten, unseren Kontrahenten zur Raison zu
bringen.'
c)Auf Seite 121 des Buches: 'Ihre Frage ist berechtigt,
natürlich läßt Hentges' Aussage nur die logische
Alternative, daß entweder ihm selbst wegen falscher
Anschuldigung auf Strafanzeige von Seiten von Strauß der
Prozeß gemacht oder Strauß wegen der Rolle verfolgt wird,
die er Hentges zufolge im Hintergrund der Sache gespielt
hat.'
d)Auf Seite 122 des Buches: 'In einer normalen
Demokratie hätte er (Strauß) Hentges wegen Verleumdung
längst angezeigt.'
e)Auf Seite 132 des Buches: 'Wie zweifelhaft auch immer
die Herkunft von Roger Hentges sein mag, durch seine
Behauptung, Praun sei in Anwesenheit des damaligen
Strauß-Adjutanten Generaloberst Repenning getötet worden,
hat er nicht nur die "große Politik" ins Spiel gebracht, er
hat auch, ohne es damals beweisen zu können, eine Erklärung
dafür gegeben, weshalb die Opfer Praun und Kloo tatsächlich
noch am 14.4.1960 um 19.45 lebten.'"
Of these passages, those on pages 115, 121 and 122 of the
book were direct quotations from the 1970 publication. They had
not been specifically referred to in the proceedings in 1970/71.
A fine (Ordnungsgeld) of DM 30,000 was imposed on the
applicant.
On appeal (sofortige Beschwerde), the order of 14 May 1986 was
amended to provide for a fine of DM 15,000. The remainder of the
appeal was rejected. The Court of Appeal found, inter alia, that it
was required not merely to look at the literal meaning of the
passages, but to consider how the average reader would have understood
them. The Court added that the overall content of the book and the
editor's ultimate aim could not be left out of consideration. The
Court also found that:
(Translation)
" .... neither the Regional Court nor the Court of Appeal in
the context of the appeal was required or, indeed,
authorised to consider the effectiveness or constitutionality
of the injunction, which was now in full force, that is, to
review also the prohibition of statements using 'words to
the same effect'. In the context of the proceedings
leading to the sanction, the full legal effect of the
injunction had to be taken as granted for the basis of the
imposition of the sanction." (Emphasis added)
(German)
"Weder das Landgericht noch der Senat [war] im Rahmen des
Beschwerdeverfahrens veranlaßt oder gar befugt, die
Wirksamkeit bzw. die Verfassungsmäßigkeit des rechtskräftig
tenorierten Verbots, also auch die Untersagung
sinngemäßer Behauptungen, zu überprüfen. Vielmehr war
im Rahmen des Ordnungsmittelverfahrens in vollem Umfang vom
rechtskräftigen Verbotstitel als Grundlage der Verhängung
des Ordnungsgeldes auszugehen." (Emphasis added)
The Court of Appeal went on to consider the passages
individually, concluding that they did fall within the scope of
the original injunction.
In considering the fine which had been imposed, the Court
noted on the one hand that the applicant was responsible for the
publication, and considered that the contravention of the injunction
was serious. On the other hand, the Court noted that only 1,000 of
the limited print-run of 2,000 copies had been distributed, and that
it has been distributed in circles which had developed critical
faculties. The Court also noted that, by virtue of the length of time
which had elapsed since the original murder and subsequent
investigation had taken place, the general public interest in the case
had diminished considerably. Finally, the applicant's income should
have been taken into account. The Court of Appeal considered that a
fine in the order of the applicant's income for two months was
sufficient. The fine was reduced to DM 15,000, and the possibility of
imprisonment as ultimate sanction was lifted.
On 31 July 1989 the Federal Constitutional Court
(Bundesverfassungsgericht) rejected the applicant's constitutional
complaint (Verfassungsbeschwerde), finding that it had no sufficient
prospect of success. The Constitutional Court first noted that it
could not consider whether the conditions for the imposition of the
fine had been fulfilled, as its only function was to consider
constitutional rights. In finding that Article 5 para. 1 of the Basic
Law (Grundsgesetz), which guarantees freedom of expression, had not
been violated, the Court noted that the original injunction prohibited
repetition of the rumour in terms or using words to the same effect.
That injunction was in force. Article 5 para. 1 of the Basic Law did,
however, apply in determining whether a sanction should be applied, as
the provision required any prohibition to be foreseeable so that the
person subject to the injunction could behave accordingly. It was
clear from the injunction of 24 March 1970 that not only express
repetition of the words was included, but also "words to the same
effect". The Court added that in the interests of the plaintiff
a certain flexibility was necessary if the injunction was not to be
completely devoid of meaning. It further noted that the courts had
not taken the book at issue "as a whole", but had based themselves on
an examination of five specific passages, and that these passages had
been classified as not being merely value judgments. The possibility,
in logic, of alternative interpretation did not nullify the finding
that the statements amounted to contentions of fact, as, by
definition, it was "alternative".
The Constitutional Court found no objection in constitutional
law to the consideration of the texts from the point of view of the
average reader, in particular as the leaflet was intended for the
public. The finding of fact of the courts below that the five
passages corresponded to the wording prohibited by the injunction was,
at the very least, tenable and perfectly compatible with the
Constitution.
COMPLAINTS
The applicant alleges a violation of Article 7 para. 1 of the
Convention in that, when his book was published in 1985, it was not
foreseeable that he would be fined for its publication.
He also alleges a violation of Article 10 of the Convention.
He contends that, as it was not foreseeable that the passages of his
pamphlet would be regarded as falling within the scope of the
injunction of 24 March 1970, the interference with his rights under
Article 10 cannot be regarded as "prescribed by law". The applicant
submits that the sanction imposed on him cannot be considered as
responding to a "pressing social need", especially as any criticism
there may have been of the Bavarian Minister President concerned his
political rather than his private activities. The applicant regards
the practically unlimited interpretation of the prohibition of the
injunction of 24 March 1970 as out of all proportion to the aim
pursued.
THE LAW
1. The applicant alleges a violation of Article 10 (Art. 10) of
the Convention, which provides 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. ...
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."
The Commission finds, first, that the applicant's freedom of
expression has been interfered with, and that this interference took
the form of a fine which must be justified as "restriction" or
"penalty" under Article 10 para. 2 (Art. 10-2). The Commission also
finds that the aim of the interference was to protect the reputation
or rights of others, namely the plaintiff to the injunction
proceedings. It could also be seen as maintaining the authority of
the judiciary, as the proceedings were technically to enforce a court
order, rather than to vindicate the plaintiff.
The Commission finds that the relevant provisions of
domestic law clearly provided for the imposition of a fine on the
applicant in case of contravention of the injunction of 24 March 1970
(confirmed on 26 June 1970, appeal rejected on 25 January 1971.) The
restriction on the applicant's freedom of expression was accordingly
"prescribed by law".
The Commission must also consider whether the fine imposed on
the applicant was "necessary in a democratic society" for the purposes
established above. States have a certain margin of appreciation in
assessing whether and to what extent an interference is necessary, but
this is coupled with the supervision of the Convention organs covering
both the legislation and the decisions applying it (cf. Eur. Court
H.R., Weber judgment of 22 May 1990, Series A no. 177 p. 22, para. 47,
with further references).
The Commission recalls that the applicant was fined at the
request of the plaintiff to civil proceedings for failure to comply
with an injunction not to repeat the proscribed words, or words to
the same effect. The Commission may not consider the terms of
the 1970 injunction, as the applicant did not contest its imposition,
either before the domestic courts or before the Convention organs.
The Commission notes that the Federal Constitutional Court
found that the interpretation of the passages as falling within the
scope of the injunction was, at the least, tenable. Taking this
together with the self-evident link between the passages at issue in
the 1985 publication and the terms of the injunction, which
included "words to the same effect", the Commission finds that it was
reasonably foreseeable that the applicant ran the risk of enforcement
proceedings following the 1985 publication (cf., in the context of the
interpretation of existing case-law, No. 8710/74, Dec. 7.5.82, D.R. 28
pp. 77, 82). Finally, the Commission finds no indication of a lack of
proportionality in the application of an injunction prohibiting "the
very words or words to the same effect" to passages which could have
been but were not specifically complained of at an earlier date.
Bearing these factors in mind the Commission considers that
the interference with the applicant's freedom of expression was
"necessary in a democratic society" within the meaning of Article 10
para. 2 (Art. 10-2) 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.
2. The applicant also alleges a violation of Article 7 para. 1
(Art. 27-1) first sentence of the Convention which provides 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 notes that the applicant was fined DM 15,000
for failure to comply with an injunction. The legal basis for the
fine was Article 890 para. 1 of the Code of Civil Procedure, which
clearly and unambiguously provides for a fine or detention in the
case of failure to comply with an order to do or to refrain from doing
something. Even assuming that the fine amounts to a sanction for
performance of a "criminal offence" within the meaning of Article 7
(Art. 7) of the Convention, the Commission notes that the provision
was in force at the time of the "offence", and Article 7 (Art. 7)
cannot be seen to have been violated in this respect. The Commission
also finds, for the reasons indicated above in its consideration of
Article 10 (Art. 10) of the Convention, that it was foreseeable that
the publication of the applicant's book in 1985 would be found to fall
within the scope of the 1970 injunction.
It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy