AS TO THE ADMISSIBILITY OF
Application No. 25117/94
by Klaus SPEER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 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
G.B. REFFI
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 19 May 1994 by
Klaus SPEER against Germany and registered on 12 September 1994 under
file No. 25117/94;
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, born in 1944, is a German national and resident
in Berlin. He is a businessman by profession. In the proceedings
before the Commission he is represented by Mr. H. Mahler, a lawyer
practising in Berlin.
A. Particular circumstances of the case
In 1988 criminal investigations were started against the
applicant and others on the suspicion of fraud and other offences.
On 26 May 1992 the Berlin-Tiergarten District Court (Amtsgericht)
issued an arrest warrant against the applicant who was taken into
detention on remand on 16 June 1992.
On 17 June 1992 the Berlin Public Prosecutor's Office drew up the
bill of indictment against the applicant and further accused, charging
the applicant, inter alia, with fraud on three counts, usury on three
counts, extortion on six counts, extortion with violence and usury,
organisation of an illegal game, illegal possession of arms, tax
evasion, receiving and corruption.
On 7 August 1992 the Berlin Regional Court (Landgericht) ordered
the applicant's continued detention on remand. The applicant's appeal
was to no avail.
In September 1992 a German publishing house published a book on
the role of the Mafia in Europe which inter alia referred to the
applicant.
Thereupon, the applicant, assisted by his counsel, Mr. Mahler,
instituted injunction proceedings before the Berlin Regional Court
(Landgericht) against the publishing house. The applicant requested
that the publishing house be prohibited from repeating various
statements contained in the above-mentioned book according to which he
had a leading role in the world of crime and contacts with other
criminals and was involved in the organised crime.
On 22 October 1992 the Regional Court granted the applicant's
request as regards part of the statements which related to alleged
criminal activities of the applicant, and dismissed the remainder of
the action.
On 9 March 1993 the Berlin Court of Appeal (Kammergericht), upon
the appeal of the publishing house, quashed the Regional Court's
decision and dismissed the applicant's action.
The Court of Appeal observed that according to the case-law in
civil matters, anybody had a right to judicial protection against the
repetition of unlawful statements. However, in this context, the
fundamental right to freedom of expression had to be taken into
account. This right concerned the free expression of opinions and, in
line with recent decisions of the Federal Constitutional Court
(Bundesverfassungsgericht), also possibly factual statements. The
Court of Appeal summarised the case-law of the Federal Constitutional
Court, according to which the free expression of opinions, even those
formulated in a harsh or exaggerated manner, was necessary in the
interest of the individual and was also a constituent element of
democracy. These considerations did not apply to factual statements
in the same way, in particular, there was no protection as to
deliberately imparting untrue statements. As regards other factual
statements, the right to freedom of expression had to be balanced
against inter alia the protection of the reputation and the rights of
others. In the case of statements concerning important matters of
public interest, there was a presumption in favour of the freedom of
expression. Moreover, a particular statement had to be seen against
the general context of a publication.
The Court of Appeal considered that the impugned statements were
made in the context of a book on the problem of organised crime in
Europe and, more particularly, in Germany, and had called for more
efforts in the combat of this crime, which was regarded as an important
danger. The book as a whole thus had the character of a publication
on a controversial issue. The statements regarding the applicant were
not intended to disparage the applicant or to discriminate against him,
but were necessary to support, as a realistic background, the opinion
expressed in the book that there was organised crime, even in Berlin,
and that the combat against this crime had to be more efficient.
Having regard to the applicant's leading role in the context of
criminal events and a fight between gangs in Berlin in 1970, and his
subsequent conviction and prison sentence as well as the new criminal
proceedings pending against him showed that there was a substantial
link between the subject of the book and the statements regarding the
applicant.
In these circumstances, the impugned statements could not be
regarded as an unlawful violation of the applicant's legitimate
interests. Moreover, to the extent that factual statements were
concerned, the applicant had failed to show that they were untrue. As
regards the statements relating to alleged meetings between the
applicant and a third person, the Court of Appeal noted that one of the
co-authors had been informed about such meetings by two police officers
in July 1991, as confirmed by a superior police officer employed in the
department `organised crime' in the Wiesbaden Federal Police Department
(Bundeskriminalamt). The statements in question were thus based on the
results of police investigations and could not be said to be pure
fiction or otherwise unreliable. In this respect, the Court of Appeal
noted that the applicant had admitted to knowing the third person
concerned. Furthermore, the statements on the applicant's involvement
in the organisation of illegal games of chance were based on the
results of the police investigations, and the bill of indictment of
17 June 1992 contained indications to that effect.
On 13 April 1994 the Federal Constitutional Court refused to
admit the applicant's constitutional complaint (Verfassungsbeschwerde).
On 27 February 1995 the Berlin Regional Court convicted the
applicant of fraud and attempted fraud, of illegal possession of
weapons, and of incitement to breach of secrecy on five counts and
sentence him to five years and six months' imprisonment. As regards
the remainder of charges, the applicant was partly acquitted, partly
the prosecution was discontinued in view of the minor importance of the
charge as compared to the offences of which he was convicted.
The applicant lodged an appeal on points of law (Revision).
These proceedings are still pending.
COMPLAINTS
1. The applicant complains about the Berlin Court of Appeal's
decision of 9 March 1993, and the court proceedings concerned. The
applicant considers that the Court of Appeal incorrectly balanced the
right to freedom of expression and his right to the presumption of
innocence. According to the applicant, the freedom of the press could
not justify publications and statements which were not proven to be
true, if they were intended to produce, before the trial had taken
place, the effects of a criminal finding of guilt. In this respect,
the applicant submits that the authors of the book relied on
information given by the police, and that they did not confront the
applicant in detail with the contents of the intended publication in
order to enable him to comment thereupon. He invokes Article 6
paras. 1 and 2 of the Convention.
2. The applicant also complains that, as a result of the publication
in question, he did not have a fair hearing in the criminal proceedings
against him, as guaranteed by Article 6 para. 1.
THE LAW
1. The applicant complains about the Berlin Court of Appeal's
decision of 9 March 1993, dismissing his request for an injunction
prohibiting a publishing house from repeating several statements
contained in a book on organised crime in Europe.
The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77, pp. 81, 88 and Eur.
Court H.R., Van de Hurk judgment of 19 April 1994, Series A no. 288,
p. 20, para. 61; Klaas judgment of 22 September 1993, Series A no. 269,
p. 17, para. 29).
The applicant alleges a violation of Article 6 paras. 1 and 2
(Art. 6-1, 6-2) of the Convention in that the Berlin Court of Appeal
disregarded the presumption of innocence when balancing his individual
interests against the right to freedom of expression, relied on by the
publishing house.
Article 6 (Art. 6), so far as relevant, provides as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by a ...
tribunal ...
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The applicant's submissions relate in particular to the Court of
Appeal's legal assessment and the alleged breach of the presumption of
innocence. It seems appropriate to look at these issues from the
point of view of paragraphs 1 and 2 of Article 6 (Art. 6-1, 6-2) taken
together.
The Commission notes that, in the bill of indictment of
June 1992, the applicant was charged with, inter alia, with fraud,
usury, extortion and extortion with violence, organisation of an
illegal game, illegal possession of arms, tax evasion, receiving and
corruption.
In September 1992 a German publishing house published a book on
the role of the Mafia in Europe which inter alia referred to the
applicant.
On 9 March 1993, in appeal proceedings, the Berlin Court of
Appeal dismissed the applicant's request that the publishing house be
prohibited from repeating various statements contained in the above-
mentioned book according to which he had a leading role in the world
of crime and was involved in the organised crime. In a detailed
reasoning and taking into account the case-law of the Federal
Constitutional Court, the Court of Appeal balanced the right to freedom
of expression of the publishing house against the applicant's
interests, in particular his interest in the protection of his
reputation. The Court of Appeal considered that the impugned
statements were made in the context of a publication on a controversial
issue, namely the problem of organised crime in Europe and, more
particularly, in Germany, which was regarded as an important danger.
The Court of Appeal found that, having regard to the applicant's
leading role in the context of criminal events and a fight between
gangs in Berlin in 1970, and his subsequent conviction and prison
sentence as well as the new criminal proceedings pending against him,
there was a substantial link between the subject of the book and the
statements regarding the applicant. The Court of Appeal concluded that
the impugned statements could not be regarded as an unlawful violation
of the applicant's legitimate interests.
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 findings of the
Berlin Court of Appeal and the reasons given for dismissing the
applicant's claim for a prohibitory injunction against the publishing
house concerned, there is no appearance that the Court of Appeal's
decision in itself contained any statement infringing the presumption
of innocence. In particular, the Court of Appeal, taking into account
the relevant case-law of the Federal Constitutional Court, balanced the
applicant's personal interests against the right to freedom of
expression and the demands of free reporting on issues of important
public interest such as the combat of organised crime. Moreover, the
Court of Appeal duly considered whether the statements relating to the
applicant contained untrue or unreliable information. In this respect,
the Court of Appeal considered in particular the result of the
investigations against the applicant, as referred to in the bill of
indictment of June 1992.
In these circumstances, the applicant's submissions do not
disclose any breach of the presumption of innocence.
Moreover, having regard to the conduct of the injunction
proceedings as a whole, the Commission finds no other indication that
the applicant did not receive a fair hearing in compliance with the
principles enshrined in Article 6 paras. 1 and 2 (Art. 6-1, 6-2). In
particular his submissions do not show that, as he was assisted by
counsel, he could not duly present his arguments in defence or could
not effectively present his arguments.
Accordingly, in the context of the injunction proceedings, there
is no appearance of a violation of Article 6 (Art. 6) 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).
2. The applicant further appears to complain under Article 6
(Art. 6) of the Convention that the publication of the book concerned
and the refusal of a prohibitory injunction regarding the impugned
statements on his involvement in the organised crime rendered the
criminal proceedings pending against him before the Berlin Regional
Court unfair.
The Commission recalls that the question of whether a trial
conforms to the standards laid down in Article 6 (Art. 6) must be
decided on the basis of an evaluation of the trial in its entirety (cf.
No. 11058/84, Dec. 13.5.86, D.R. 47, p. 230 with further references).
The Commission has accepted in some cases that a virulent press
campaign can adversely affect the fairness of a trial (No. 10486/83,
Dec. 9.10.86, D.R. 49, p. 86). In the present case, the appeal
proceedings brought by the applicant against his conviction of February
1995 are still pending. It is true that it cannot be excluded that a
specific factor may be so decisive as to enable the fairness of the
trial to be assessed at an earlier stage in the proceedings (cf. Nos
8603/79, 8722/79, 8723/79 and 8729/79 joined, Dec. 18.12.80, D.R. 22,
p. 216). However, the Commission finds that the applicant failed to
show that the criticised statements, which formed part of a general
publication on organised crime, and the refusal of a prohibitory
injunction constituted any such specific factors.
Accordingly, the applicant's complaints in this respect are
premature.
It follows that this part of the application is likewise
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