AS TO THE ADMISSIBILITY OF
Application No. 16617/90
by Melle WACHTMEESTER
against the Netherlands
The European Commission of Human Rights sitting in private
on 12 April 1991, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
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. J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 19 April 1990
by Melle WACHTMEESTER against the Netherlands and registered on 22 May
1990 under file No. 16617/90;
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 relevant facts of the case, as submitted by the applicant,
may be summarised as follows.
The applicant, born in 1950, is a Dutch national, resident in
Wedde, in the Netherlands. He is represented by Mr. Huydecoper, a
lawyer practising in The Hague.
The applicant is a journalist on the local newspaper
"Winschoter Courant". Under the heading "Sale of Reiderland, vultures
have the scent of money in their nostrils" he published an article in
which he mentioned Mr. Van Wijk, Mr. Moed and Mr. Strating as "members
of the usual clan who turns up at every public auction of immovable
property in Eastern Groningen". In the article he wrote also: "The
clan draw their chairs together and discuss. The vultures have the
scent of money in their nostrils." (This article is attached to this
report in Appendix I.)
Mr. Van Wijk and Mr. Moed lodged complaints with the public
prosecutor and the applicant was prosecuted for insult. In his
defence the applicant claimed to have acted in the public interest,
convinced that a group of some twenty people, amongst them Mr. Van
Wijk and Mr. Moed, used undue pressure in public auctions. The
Council of Journalism, which was consulted, considered that the
language used by the applicant was not objectionable.
The applicant was convicted of the offence of simple insult
(Article 266 of the Dutch Criminal Code) and sentenced to a fine of
250 Dutch guilders.
In his appeal to the Supreme Court (Hoge Raad) the applicant
invoked Article 10 of the European Convention on Human Rights as
interpreted in the decisions of the European Court of Human Rights in
the "Sunday Times", "Barthold" and "Lingens" cases.
The Supreme Court confirmed the conviction on 21 November
1989.
COMPLAINT
The applicant complains of a violation of Article 10 of the
Convention, in that the impugned court decisions infringed his freedom
of expression.
THE LAW
The applicant complains that the Dutch authorities, by
prosecuting and convicting him of the criminal offence of insult
(belediging), violated his freedom of expression as guaranteed by
Article 10 (Art. 10), which reads:
"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 responsibiities, 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 applicant argues in particular that the only purpose of
his article was to denounce the practices - in his view, socially
unacceptable - at public auctions of a certain group of persons in
respect of the purchase and sale of houses and business premises. He
argues that it concerns a matter in which the public at large has an
interest. As the scope of Article 10 (Art. 10) is not limited to the
expression of neutral comments but also covers certain offending,
shocking or disturbing statements, the applicant is of the opinion
that his conviction for insult amounts to an unjustified interference
with his freedom of expression.
The Commission observes that the applicant has been sanctioned
for expressing a certain opinion on the behaviour of the group
referred to as "clan" and "vultures".
The applicant's freedom of expression has therefore been
interfered with. It remains to be seen whether the interference was
"prescribed by law", had a legitimate aim and was "necessary in a
democratic society" for the aforesaid aim within the meaning of
Article 10 para. 2 (Art. 10-2) of the Convention (Eur. Court H.R.,
Lingens judgment of 8 July 1986, Series A no. 103, p. 24, paras
35-36).
In the present case the interference with the applicant's
freedom of expression was prescribed by law, as his conviction was
based on Article 266 of the Dutch Criminal Code. It was moreover
designed to protect "the reputation or rights of others" and had
therefore a legitimate aim under Article 10 para. 2 (Art. 10-2) of the
Convention.
In assessing whether the interference was "necessary in a
democratic society" for achieving the above mentioned aim, the
Commission considers that it is the task of the press to impart
information and ideas which the public has a right to receive.
However, the Commission recalls that the limits of acceptable
criticism are less wide as regards a private individual than in the
case of a politician (Eur. Court H.R., ibid., p. 26, para. 42). In
the present case the Commission observes that the behaviour criticised
by the applicant did not concern public or political personalities but
people from a small town in the Netherlands not exercising any public
functions. In the balance between the applicant's freedom of expression
and the right of the public to be informed, on the one hand, and the
protection of the named persons' reputation, on the other, the
Commission notes that it was quite possible for the applicant to
express his criticism without at the same time attacking these persons
in the way he did.
It follows that the interference with the applicant's exercise
of his freedom of expression was a proportionate measure to protect
"the reputation and rights of others" and that it could therefore be
considered to have been "necessary in a democratic society" for that
purpose. The interference was accordingly justified under para. 2 of
Article 10 (Art. 10-2) and 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 Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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