CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1991

.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. 17459/90                       by K.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 2 July 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   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                   M.P. PELLONPÄÄ                   B. MARXER                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 13 September 1990 by K. against the Federal Republic of Germany and registered on 21 November 1990 under file No. 17459/90;           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 applicant, a law professor, is a German citizen, born in 1923 and living in Münster.   He is represented by Mr.   F. Niepel, lawyer in Munich.           On 15 March 1989 the applicant was convicted by the District Court (Amtsgericht) Schwäbisch-Gmünd of duress (Nötigung) pursuant to Section 240 of the Penal Code (Strafgesetzbuch) * and sentenced to 20 day rates of 150 DM per day.   According to the findings of the Court the applicant, an active pacifist and opponent to atomic armament, participated on 12 December 1986 in an anti-war demonstration.   Together with other demonstrators he stood before a gate and refused to move away in order to block the entry to a United States army compound at Mutlangen.   Eventually he was carried away by two policemen.   A United States army truck, driven by witness M., had been temporarily prevented from moving past the sit-in.           The Court found that the applicant's behaviour constituted "force" within the meaning of Section 240 of the Penal Code.   The Court further considered that the use of force by the applicant was objectionable and therefore unlawful.   It took into account the case-law of the Federal Court (Bundesgerichtshof), according to which only the immediate purpose of the use of force had to be taken into account and not ultimate objectives (Fernziele).   As the immediate purpose one only had to consider the behaviour of the victim which the offender sought to obtain by the use of force.   The victim had a right to defend himself against any forceful action directed against him regardless of the ultimate motives of the aggressor.   Therefore the political aims of the applicant were irrelevant in this context.   As the applicant had sought to hinder an American soldier from driving by forming a human barrier with others and thereby interfered with that person's freedom of movement, he had acted unlawfully.           Even taking into account his ultimate motive (Fernziele), his action was objectionable (sittlich zu missbilligen) as the stationing of Pershing II missiles, against which the demonstration was directed, had been decided by a majority of Parliament.           While the adversaries of this policy had the right to protest against it and set out their arguments in public, they did not have the right to try to persuade the majority of the people by way of interference with the rights of others, i.e. to impose their minority views by forceful means.           The Court further considered that the force used by the applicant was not unimportant and therefore not irrelevant as the blockade had been intended to last and could only be broken by lawful counterforce in that the police carried or led the demonstrators away.           The conviction was, according to the Court, compatible with the applicant's constitutional right to participate in a peaceful demonstration as the right to demonstrate did not justify replacing political argumentation by forceful action with a view to imposing one's political objectives.   ______________   * The relevant part of Section 240 reads: "Everyone who by force or threatening with grievous harm unlawfully obliges another to act, not to act or to tolerate is punishable with ..." _____________             It was the duty of the courts to protect others from being used as objects for the purpose of publicising a politicial opinion. While demonstrations by the nature of things normally caused certain obstructions to others, it could not be tolerated that demonstrators deliberately interfered with the rights of others in order to raise public attention.           The fact that the applicant allegedly acted in the public and not his personal interest could only be taken into account in connection with the fixing of the sentence.   Finally the District Court rejected the applicant's argument that he had acted in good faith without realising that he violated criminal law.           The applicant lodged an appeal on points of law (Revision) which was rejected by the Stuttgart Court of Appeal (Oberlandesgericht) on 23 May 1989 as being ill-founded.           He then lodged a constitutional complaint (Verfassungsbeschwerde) which was rejected by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) on 8 March 1990 (communicated on 16 March 1990) partly as being inadmissible and partly as being manifestly ill-founded.           Insofar as the applicant had argued that the reasons stated in the District Court's judgment were insulting, his complaint was considered to be inadmissible for non-exhaustion of ordinary remedies.   His complaint that the District Court's reasoning reflected his own arguments only in a distorted manner was considered to be unsubstantiated.           Insofar as the applicant had complained of his conviction and sentence, it is stated that the District Court correctly based its decision on the "extended" or "spiritualised" notion of "force" ("erweiterter" bzw. "vergeistigter" Gewaltbegriff) as defined in the jurisprudence of the Federal Constitutional Court.   In particular it had dealt with and sufficiently answered the question whether the applicant could be considered as having exerted constraint (nötigende Gewalt).   It had in this context also taken into account that the driver of the United States army truck had possibly received orders not to use counterforce.           The Federal Constitutional Court also pointed out that although the District Court had followed the jurisprudence of the Federal Court (Bundesgerichtshof), according to which the ultimate aims of the offender were of no relevance, it nevertheless had taken them into account in weighing whether the applicant's constitutional rights prevailed over the public demand to prosecute offenders of the criminal law.           Further it is stated that the possible dangers emanating from the stationing of missiles do not justify actions that constitute violations of Section 240 of the Penal Code.           The Federal Constitutional Court concludes that the District Court's finding as to the applicant's guilt does not disclose any arbitrariness.           The applicant submits that the application of Section 240 of the Penal Code in relation to sit-ins is handled in an arbitrary manner by the prosecution authorities.   He states that before 1986 he participated in other, similar demonstrations, together with prominent personalities, and even laid criminal charges against himself, but no action was taken by the authorities. COMPLAINTS           The applicant considers the right to a fair trial to be violated when among thousands of demonstrators, who all acted in the same manner as he on 12 December 1986, only a few were eventually prosecuted.   He submits that prosecution for violation by demonstrators of Section 240 of the Penal Code is handled by the authorities in a selective and arbitrary manner.   Almost exclusively those who, like the applicant, had demonstrated against mass destruction weapons had been prosecuted, and the reason was the political opinion of those demonstrators.   Consequently, they had been discriminated against.           He further complains that he was wrongly convicted on account of participation in a peaceful sit-in demonstration which was meant as a justified protest against the deployment of mass destructive weapons.   Finally he complains of the insulting and degrading character of the reasons stated in the District Court's judgment.           He invokes Articles 3, 6, 7, 8 para. 1, 11 para. 1 and 14 of the Convention.   THE LAW   1.       The applicant first alleges a violation of his right to a fair trial as guaranteed by Article 6 (Art. 6) of the Convention and of the principle nulla poena sine lege as embodied in Article 7 (Art. 7) of the Convention in that Section 240 of the German Penal Code, which prohibits everyone from unlawfully forcing another person to act or to omit an action, was wrongly applied in his case contrary to the rule that penal law may not be extended by analogy in an unforeseeable manner.           However, the interpretation of national law is principally the task of the national courts and the Commission's supervision in this respect is limited to a control as to the reasonableness of such interpretation (No. 8710/79, Dec. 7.5.82, D.R. 28, 77 (81)).   In the present case the interpretation of Section 240 cannot be found to be so unreasonable as to make the applicant's conviction and sentence contrary to the rights invoked by him (cf.   No. 13079/87, Dec. 6.3.89, to be published in D.R. 60).   2.       The applicant further alleges that with regard to his right to a fair trial he has been discriminated against contrary to Article 14 (Art. 14) of the Convention, since the large majority of persons participating in sit-in demonstrations in Germany are never prosecuted, whereas prosecutions have been initiated almost exclusively against those demonstrating against mass destruction weapons.           The Commission considers, however, that Article 14 (Art. 14) in conjunction with Article 6 (Art. 6) of the Convention cannot be understood to require that all persons suspected of having committed a certain type of offence be prosecuted.   Prosecutions may well be limited to some persons, on condition that those persons are not selected on discriminatory grounds.   In the present case, the applicant cannot be considered to have substantiated his allegation that the prosecution against him was based on discriminatory grounds.   3.       The applicant has also alleged violations of Articles 3, 8 (Art. 3, 8) and 11 of the Convention.   The Commission finds no appearance of a violation of these provisions nor of the other provisions invoked by the applicant.   4.       It follows that the whole application has to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly ill-founded.             For these reasons, the Commission unanimously             DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission          (H.C. KRÜGER)                                (C.A. NØRGAARD)