CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 décembre 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 12230/86                       by S.E.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 12 December 1987, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                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 November 1985 by S.E. against the Federal Republic of Germany and registered on 24 June 1986 under file N° 12230/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   &_THE FACTS&S           The facts of the case, as submitted by the applicant, may be summarised as follows:           The applicant, a medical practitioner, is a German citizen, born in 1915 and living in U..   He is represented in the proceedings before the Commission by Mr.   O. Gritschneder, a lawyer in Munich.           On 28 March 1980 the applicant was convicted by the District Court (Amtsgericht) in U. of having made insulting remarks (Beleidigung).   He was fined 20 day rates of 80.- DM each.           According to the findings of the Court, the applicant stated in a discussion between some ten members of a working group of the evangelic community at U. that "model centres", the creation of which was suggested by the Confederation of German Trade Unions (DGB) with a view to functioning as consultative and advisory organs on the question of whether or not an abortion was admissible under the new legislation, were in reality "embryo-killer syndicates".   He also stated that with its request to allow more "killings on social grounds" the DGB placed itself at the same level as the NSDAP.   The applicant repeated these statements in a letter addressed to the regional representative of the DGB.           The Court considered these statements to be value judgments of insulting character as it violated the honour of a person or group of persons to be compared with an association of criminals (killer syndicate) or with the former Nazi party (NSDAP).   It was true that in a public debate on issues of general interest critical statements had to be admitted, even if arguments relating to the subject-matter affected the honour of third persons.   However, in the applicant's case it was not the applicant's arguments but the form in which he presented them that was insulting and went beyond the admissible limits.           The applicant's appeal (Berufung) was rejected on 21 March 1984 by the U. Regional Court (Landgericht) which, however, considered only the comparison with the former Nazi party to be of an insulting character and reduced the sentence to a warning (Verwarnung) whilst the imposition of a fine of 20 day rates of 80.- DM each was suspended.   A further appeal (Revision) was rejected on 12 October 1984 by the Stuttgart Court of Appeal (Oberlandesgericht).           The applicant then lodged a constitutional complaint which was rejected on 24 April 1985 by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) as offering no prospects of success.   The decision was served on the applicant's lawyer on 8 May 1985.   It states that the criminal courts balanced the applicant's rights against those of the trade union association and correctly concluded that the applicant had exceeded the limits of freedom of expression.   &_COMPLAINTS&S           The applicant considers that the warning was wrongly imposed on him.   He submits that the incriminating statements only constituted the lawful expression of his religious convictions and of his opinion that the trade union association acted in violation of the right to life in supporting abortion.           He invokes Articles 2, 9 and 10 of the Convention.   &_THE LAW&S           The applicant has complained that a warning was imposed on him by a criminal court for having made statements before a small group of persons which were considered to be of an insulting character.   It is true that Articles 9 and 10 (Art. 8, 10) of the Convention secure to everyone the right to manifest his religion or belief and to impart ideas.           However, the exercise of these rights may be subject to such restrictions or penalties as are prescribed by law and are necessary in a democratic society, inter alia, for the protection of the reputation of others (Article 9 para. 2 and Article 10 para. 2 (Art. 9-2, 10-2) of the Convention).   In the present case, the warning against the applicant was uncontestedly based on a provision of German criminal law.           As to the question of necessity of the warning, the case-law of the organs set up by the Convention shows that the criterion of "necessity" cannot be applied in absolute terms but calls for the assessment of various factors.   These include the nature of the right in question, the degree of interference, the nature of the public interest and the extent to which it needed to be protected in the particular circumstances.           In this context the Commission notes that the German courts underligned that the right to freedom of expression may even justify, in a public debate on issues of general interest, the use of arguments relating to the subject-matter which may affect the honour of third persons.   The statements made by the applicant comparing an association of trade unions with the former German Nazi party (NSDAP) were, however, considered to go beyond the admissible limits as being of insulting character not on account of factual issues referred to but on account of the form in which the applicant presented his arguments.   The applicant was free to express his disagreement with the attitude of trade unions on the issue of abortion in critical forms without having to make the incriminating comparison in his letter addressed to the regional representative of the DGB.   Finally, the Commission notes that the applicant's sentence was reduced to a warning whereas the imposition of a fine was suspended.   This sanction is not disproportionate to the offence in question.   The Commission concludes that the measure taken against the applicant was justified as being necessary in a democratic society for the protection of the reputation of others within the meaning of Article 9 para. 2 (Art. 9-2) and Article 10 para. 2 (Art. 10-2) of the Convention.           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             DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission              President of the Commission             (H.C. KRÜGER)                             (C.A. NØRGAARD)