AS TO THE ADMISSIBILITY OF
Application No. 32165/96
by Frank WÖCKEL
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 16 April 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs M. HION
Mr R. NICOLINI
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 27 December 1995
by Frank WÖCKEL against Germany and registered on 8 July 1996 under
file No. 32165/96;
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, born in 1964, is a German national and resident
in Berlin. He is an environmental consultant by profession.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In May 1995 the applicant, a non-smoker, requested the Berlin
Prosecutor's Office (Amtsanwaltschaft) to enforce criminal proceedings
against MM. G. and D. on charges of unlawful coercion (Nötigung) and
of having caused bodily harm, stating that, in his presence, they had
been smoking cigarettes while driving in a non-smoking bus. By letter
of 27 November 1995 the Prosecutor's Office informed the applicant that
the proceedings against MM. G. and D. had been discontinued. The
Office found that, having regard to the statements of MM. G. and D.,
no unlawful coercion could be proven. Moreover, given the risk of
passive smoking elsewhere, it could not be established that the
applicant suffered any injuries to his health as a consequence of the
smoking of MM. G. and D.
On 15 September 1995, the President's Office (Präsidialrat) of
the Federal Constitutional Court (Bundesverfassungsgericht), upon his
constitutional complaint (Verfassungsbeschwerde), informed the
applicant about the possible obstacles to the admissibility of his
complaint, in particular the non-exhaustion of ordinary proceedings as
far as his request for prosecution of MM. G. and D. was concerned and
the limitations of judicial control of the State's positive obligations
to enact legislation in health matters.
In November 1995 the applicant further addressed a petition to
the Federal Diet (Bundestag) requesting that the legislature be ordered
to enact legislation prohibiting smoking in public. He joined a list
of signatures.
In reply, his attention was drawn to its decisions of
21 September 1994 and 31 March 1995 on previous petitions. In these
decisions, the Diet had noted that the Food Act (Lebensmittel- und
Bedarfsgegenständegesetz) contained provisions prohibiting or limiting
advertisement for tobacco-products and that the tobacco industry had
entered into an agreement of self-restraint further limiting
advertisement of tobacco-products. Legislation for the protection of
non-smokers in air traffic, the federal railways and in public
transport, in restaurants and at work had been enacted. The Diet had
also raised the constitutional and practical problems with regard to
legislation, in particular penal legislation, prohibiting smoking.
Rather, information on the risks of smoking, such as the campaign
started in 1987 by the Federal Office for Public Information on Health
Issues (Bundeszentrale für gesundheitliche Aufklärung) was called for.
On 26 May 1996 the Federal Diet closed the proceedings regarding
the applicant's petition of November 1995. The Diet considered that
it could not support the applicant's request for a general prohibition
on smoking as experience had shown that information on the risks of
smoking was more effective than punishment.
COMPLAINTS
The applicant complains about the lack of effective protection
of non-smokers. He submits in particular that he has been exposed to
smoking in public buildings such as police headquarters or court
buildings. He further complains that German courts do not regard
smoking as constituting the criminal offence of causing bodily harm.
He also states that, in his apartment, he has been suffering from his
neighbour's smoking, and that he cannot participate in religious
ceremonies or assemblies without being exposed to smoking. He also
refers to smoking in schools and in public transport. He invokes
Articles 2, 3, 6, 8, 9 and 11 of the Convention and Article 2 of
Protocol No. 1.
THE LAW
The applicant, invoking several provisions of the Convention and
of Protocol No. 1, respectively, complains about the allegedly
insufficient protection of non-smokers.
The Commission has examined the applicant's submissions in
particular under Articles 2 and 8 (Art. 2, 8) of the Convention.
Article 2 para. 1 (Art. 2-1) provides as follows:
"Everyone's right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for
which this penalty is provided by law."
Article 8 (Art. 8) reads:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission recalls that the approach to the interpretation
of Article 2 (Art. 2) must be guided by the fact that the object and
purpose of the Convention as an instrument for the protection of
individual human beings requires that its provisions be interpreted and
applied so as to make its safeguards practical and effective (cf. Eur.
Court HR, McCann and Others v. United Kingdom judgment of 27 September
1995, Series A no. 324, p. 45, para. 146). It imposes an obligation
on Contracting States not only to refrain from taking life
"intentionally" but also to take appropriate steps to safeguard life
(Eur. Court HR, McCann and Others judgment, op. cit., pp. 46-47, paras.
147-148; No. 7154/75, Dec. 12.7.78, D.R. 14, p. 31).
Moreover, as regards Article 8 (Art. 8) of the Convention, the
Court held that environmental pollution may affect individuals'
well-being and prevent them from enjoying their homes in such a way as
to affect their private and family life adversely, without, however,
seriously endangering their health (cf. Eur. Court HR, López Ostra v.
Spain judgment of 9 December 1994, Series A no. 303-C, p. 55, para. 51;
Guerra and Others v. Italy judgment of 19 February 1998, Reports of
Judgments and Decisions 1998, para. 60). The positive obligations
inherent in an effective respect for private or family life may involve
the adoption of measures designed to secure respect for private life
even in the sphere of the relations of individuals between themselves
(cf. Eur. Court HR, X and Y v. the Netherlands judgment of 26 March
1985, Series A no. 91, p. 11, para. 23; Botta v. Italy judgment of
24 February 1998, Reports of Judgments and Decisions 1998, para. 33).
The present case relates to the question whether the German State
is obliged, as claimed by the applicant, to enact legislation
prohibiting smoking in public with a view to protecting non-smokers.
The Commission observes that the choice of the means calculated
to secure compliance with the Convention in the sphere of the relations
of individuals between themselves is in principle a matter that falls
within the Contracting States' margin of appreciation. There are
different ways of ensuring respect for the Convention rights, and the
nature of the State's obligation will depend on the aspects of the
Convention right that is at issue.
The Commission notes that German law contains provisions limiting
the advertising of tobacco products and prohibiting smoking in certain
public areas. Moreover, the German authorities have given preference
to a public information campaign on the injurious effects of smoking.
The Commission finds that, bearing in mind the competing
interests of the applicant as a non-smoker and of the interests of
other individuals to continue smoking and the margin of appreciation
left to the national authorities, the absence of a general prohibition
on advertising of tobacco products and on smoking does not amount to
a failure on the part of the German State to ensure the applicant's
rights under Articles 2 and 8 (Art. 2, 8) of the Convention.
In these circumstances, there is no appearance of a violation of
the applicant's rights under the Convention and the Protocols thereto.
It follows that 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.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy