AS TO THE ADMISSIBILITY OF
Application No. 24274/94
by Hovik SIMONIAN
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 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
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
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 11 April 1994 by
Hovik SIMONIAN against Germany and registered on 6 June 1994 under file
No. 24274/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
FACTS
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
I. The background of the application
The applicant, born in 1949, is a Lebanese national and resident
at Rougemont in Switzerland. He is a businessman by profession.
Before the Commission he is represented by MM. H.-H. Kupzog and
R. Strauch III, lawyers practising in Cologne.
In May 1983 the Basel-Stadt Public Prosecutor's Office
(Staatsanwaltschaft) instituted preliminary investigations against the
applicant on the suspicion of having been involved in international
drug trafficking and money laundering. The applicant was arrested and
taken into detention on remand in Switzerland in May 1983. He was
released in July 1983. The criminal proceedings against the applicant
were discontinued in November 1988.
In the course of these investigations, German broadcasting
reported on drug and arms trafficking in Europe, as well as money
laundry in Switzerland in broadcasts of December 1984, January and May
1985, respectively, and in this context also mentioned the Swiss
proceedings and the suspicions against the applicant. Moreover, a book
was published on the issue of money laundering in Switzerland, which
inter alia referred to the applicant and the investigation proceedings
against him.
II. The compensation proceedings against broadcasting companies
On 3 August 1988 the Cologne Regional Court (Landgericht)
dismissed the applicant's action, i.e. in particular compensation
claims for non-material damages, against German broadcasting companies
and editors who had been involved in the above-mentioned reports.
The Regional Court found that, as regards the broadcasts in
December 1984, any claims had become statute-barred. Furthermore,
claims regarding the broadcasts in January 1985 were statute-barred in
respect of one of the defendants as the service of the action upon him
had been out of time.
Moreover, the Regional Court stated that the applicant's
compensation claims concerning the broadcasts in January and May 1985
were unfounded. The applicant could not claim compensation for a
violation of his personality rights (Persönlichkeitsrechtsverletzung).
The Regional Court considered that the broadcasts of January 1985 did
not contain any untrue statements of facts. In particular, the
Regional Court did not accept the applicant's submission that one of
his comments was presented as a refuted statement in defence and that
he had been described as a person found guilty of money laundering.
Rather, the defendants had reported about an existing suspicion against
him. Reporting about offences and grievances was the legitimate task
of the media. Moreover, the defendants had not breached the principle
of presumption of innocence, as the report had been cautious in the
circumstances prevailing and had been limited to stating a suspicion
against the applicant. The Regional Court continued that the same
considerations applied to the broadcast of May 1985 to the extent that
both broadcasts had the same contents. As regards the further passages
regarding new elements supporting the suspicion against the applicant,
no other conclusions could be drawn.
On 27 June 1989 the Cologne Court of Appeal (Oberlandesgericht)
dismissed the applicant's appeal against the Regional Court's judgment
of August 1988. The Court of Appeal, assuming that none of the
compensation claims had become statute-barred, found that such claims
were unfounded. Considering the German case-law and legal literature
on compensation claims for violation of personality rights and the
presumption of innocence in case of reports in the media on persons
suspected of having committed a criminal offence, the Court of Appeal
came to the conclusion that the emissions concerned had truly informed
the public on a matter of general interest, namely drug trafficking.
On 12 June 1990 the Federal Court of Justice (Bundesgerichtshof)
dismissed the applicant's appeal on points of law (Revision).
III. The injunction proceedings against Mr. Ziegler
On 15 August 1990 the Cologne Regional Court dismissed the
applicant's request for an injunction against Mr. Ziegler and the
German publisher of his book. The Regional Court found that the
applicant's claim that the defendants be prohibited from further
publishing any references to the applicant was unfounded. In
particular, the fact that the applicant's name had been mentioned and
the contents of the impugned statements did not amount to a violation
of his personality rights. In this respect the Regional Court referred
to the judgment of 27 June 1989. It also considered that the relevant
passages in the book only reported about the opening of the preliminary
investigations against the applicant, the subject of these
investigations and the outcome of the proceedings, and that these
statements were on the whole true.
On 15 January 1991 the Cologne Court of Appeal dismissed the
applicant's appeal. The Court of Appeal confirmed the considerations
in its judgment of 27 June 1989 and the findings of the Regional Court.
It considered in particular that the fact that the investigation
proceedings against the applicant had been discontinued in November
1988 did not prohibit the defendants from referring to these matters
in the context of a general discussion of money laundering and drug
trafficking.
IV. The compensation proceedings against Mr. Ziegler
On 20 March 1991 the Cologne Regional Court dismissed the
applicant's compensation claims against Mr. Ziegler and the German
publisher of his book, as well as his request for an injunction
prohibiting the further distribution of the book in question. The
Regional Court referred in particular to the previous court judgments.
On 19 November 1991 the Cologne Court of Appeal dismissed the
applicant's appeal.
On 14 July 1992 the Federal Court of Justice refused the
applicant's request for legal aid in view of lodging an appeal on
points of law. The Federal Court of Justice found that the applicant
had failed to show that he fulfilled the financial conditions for being
granted legal aid.
V. The Constitutional Court proceedings
On 20 October 1993 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaints concerning the decisions taken in the context of the first
set of compensation proceedings (the decisions of the Federal Court of
Justice of 12 June 1990, of the Cologne Court of Appeal of 27 June 1989
and the Cologne Regional Court of 3 August 1988, respectively) and the
decisions taken in the context of the injunction proceedings (the
decisions of the Cologne Court of Appeal of 15 January 1991 and of the
Cologne Regional Court of 15 August 1990, respectively). The decision
was served on 5 November 1993.
COMPLAINTS
The applicant complains under Article 6 para. 2 and Article 8 of
the Convention about the above court decisions refusing compensation,
and a prohibitory injunction, in respect of publications infringing the
presumption of innocence and his reputation.
THE LAW
The applicant complains about German court decisions refusing
compensation, and a prohibitory injunction, in respect of publications
on criminal proceedings against him and the suspicion of having
committed criminal offences. He invokes Article 6 para. 2 (Art. 6-2)
of the Convention.
Article 6 para. 2 (Art. 6-2) provides that "everyone charged with
a criminal offence shall be presumed innocent until proved guilty
according to law."
The Commission notes that in May 1983 the Swiss prosecution
authorities instituted preliminary investigations against the applicant
on the suspicion of having been involved in international drug
trafficking and money laundering. The criminal proceedings against the
applicant were discontinued in November 1988.
In the course of these investigations, German broadcasting
reported on drug and arms trafficking in Europe, as well as money
laundering in Switzerland in broadcasts of December 1984, January and
May 1985, respectively, and in this context also mentioned the Swiss
proceedings and the suspicions against the applicant. Moreover, a book
was published on the issue of money laundering in Switzerland, which
inter alia referred to the applicant and the investigation proceedings
against him.
The applicant brought civil actions before the German courts
against the broadcasting companies and editors who had been involved
in the above-mentioned broadcasts, as well as against the author of the
said book and its publisher. These actions remained unsuccessful on
the ground that the competent German courts found that the applicant's
personality rights had not been infringed. The German courts
considered in particular that the reports on the applicant only had
contained true facts such as the existence of the suspicion against the
applicant or the criminal proceedings against him, and had also regard
to the public interest in matters such as drug trafficking.
The Commission recalls that the presumption of innocence is to
be observed not only by the criminal court trying a case, but also by
other authorities, including other courts. Article 6 para. 2
(Art. 6-2) thus excludes any formal declaration by these authorities
that somebody is guilty of an offence before this is established
according to law by a competent court. However, the authorities may
inform the public about criminal investigations or about an existing
suspicion (cf. 7986/77, Dec. 3.10.78, D.R. 13 p. 73; Dec. 10847/84,
Dec. 7.10.85, D.R. 44 p. 238; No. 16697/90, Dec. 30.11.92 - not
published).
The Commission finds that, having regard to the respective
findings of the German courts and the reasons given for dismissing the
applicant's civil claims against third persons, there is no appearance
that the court decisions in themselves contained any statement
infringing the presumption of innocence. In particular, the German
courts, when examining whether the applicant's personality rights were
infringed, considered the demands of the presumption of innocence and
its consequences as to reporting in the media on criminal
investigations and suspects involved in such proceedings. In the
litigation brought by the applicant, they found nothing going beyond
the information about the course of the Swiss criminal proceedings
against the applicant and the suspicion against him.
In these circumstances, the applicant's submissions do not
disclose any breach of the presumption of innocence.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant complains under Article 8 (Art. 8) of the
Convention that the German courts did not afford him protection against
the alleged violation of the presumption of innocence and of his
reputation.
The applicant thereby invokes a positive obligation, namely to
interfere with other persons' right to freedom of expression, a right
guaranteed under Article 10 (Art. 10) of the Convention, with a view
to protect his reputation.
The Commission recalls that although positive obligations may be
required by Article 8 (Art. 8) of the Convention, the way in which a
High Contracting Party may meet such obligations is largely within its
discretion (cf. No. 10871/84, Dec. 10.7.86 D.R. 48 p. 154). In the
present case, the applicant had an actionable right to privacy.
Moreover, the Commission, taking into account its above findings under
Article 6 para. 2 (Art. 6-2), considers that the German court decisions
did not show any lack of respect for the applicant's right to respect
for his private life, as guaranteed by Article 8 para. 1 (Art. 8-1) of
the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).
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