CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 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. 16315/90                       by S.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 11 July 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   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.   L. LOUCAIDES                   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 5 February 1990 by S. against the Federal Republic of Germany and registered on 19 March 1990 under file No. 16315/98;           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 is a German citizen born in 1912.   He lives in Gudensberg and is represented before the Commission by Sieghart Ott and Fraulob Ulrich, lawyers of Munich.   The facts of the case, as submitted by the applicant's representatives, may be summarised as follows.           In 1970 the applicant published a book entitled "The Federal German Dreyfus affair - Law Breaking and Refusal to Think in the 10 year old Brühne-Ferbach Affair" ("Der bundesdeutsche Dreyfus-Skandal, Rechtsbruch und Denkverzicht in der zehn Jahre alten Justizsache Brühne-Ferbach").   The book contained the following passage, which is also repeated on the back cover:   (Translation)   "If the rumour will not go away that Vera Brühne and Johann Ferbach have been serving a life sentence for 8 years in order that obscurity shall continue to surround Strauss' involvement in an affair which ended in murder - the obscurity surrounding the way in which a salaried employee could amass an enormous fortune - then it is the statesman's own fault.   In a normal democracy he would long since have had criminal proceedings brought against Hentges for defamation."   (German)   "Wenn das Gerücht nicht zur Ruhe kommt, daß Vera Brühne und Johann Ferbach auf Lebzeiten seit nun acht Jahren in Zuchthaus sitzen, damit mindestens Straußens Verwicklung in eine Affäre, die in Mord gipfelte, dunkel bleibe: so verhüllt wie der Weg, auf welchem ein Gehaltsempfänger zu einem riesigen Vermögen eigentlich kommen konnte, ist der Staatsmann selbst schuld daran.   In einer normalen Demokratie hätte er Hentges wegen Verleumdung längst angezeigt."           On 24 March 1970 an interim injunction was granted to then Federal Defence Minister, Franz Josef Strauss, against the applicant by the Munich Regional Court (Landgericht) I.   The injunction provided as follows:   (Translation)   "On pain of an unlimited fine or up to 6 months imprisonment for each contravention, the defendants .... shall refrain from maintaining and broadcasting, whether using the very words or words to the same effect, that the rumour will not go away that Vera Brühne and Johann Ferbach have been serving a life sentence for 8 years in order that obscurity shall continue to surround the plaintiff's involvement in an affair which ended in murder."(Emphasis added) (German)   "Den Antragsgegnern wird bei Meidung einer Geldstrafe in unbeschränkter Höhe oder Haftstrafe bis zu 6 Monaten für jeden Fall der Zuwiderhandlung - .... verboten, wörtlich oder sinngemäß zu behaupten oder zu verbreiten: Es komme das Gerücht nicht zur Ruhe, daß Vera Brühne und Johann Ferbach auf Lebzeiten seit nun 8 Jahren im Zuchthaus sitzen, damit mindestens die Verwicklung des Antragstellers in eine Affäre, die in Mord gipfelte, dunkel bleibe." (Emphasis added)           The injunction was confirmed by the Regional Court on 26 June 1970.   The applicant's appeal (Berufung) was rejected by the Munich Court of Appeal (Oberlandesgericht) on 25 January 1971.           In September 1985 the applicant published a book entitled "The Past which would not end - Power Mania, Business and Constitutional Betrayal in the Brühne-Ferbach Scandal" ("Die Vergangenheit, die nicht endete - Machtrausch, Geschäft und Verfassungsverrat im Justizskandal Brühne-Ferbach").           On 6 February 1986 Franz Josef Strauss, who was then Prime Minister of Bavaria ("the plaintiff") applied for a sanction (Ordnungsmittel) pursuant to Article 890 para. 1 of the Code of Civil Procedure (Zivilprozessordnung).   The plaintiff alleged that the applicant, as publisher of the whole and author of some of the contributions, had contravened the injunction of 24 March 1970 in several respects.   On 14 May 1986 the Regional Court found that the following five passages contravened the injunction:   (Translation)   "a) At page 12 of the book: 'One of his theories - now reproduced in this volume - that Frau Brühne became involved in high politics, and a statement of BND-agent Hentges that Strauss knew about the events concerning Praun, had a terrible confirmation.'   b) At page 115 of the book: 'It is quite certain that you are aware [Mr.   Strauss] that I wish to have nothing at all to do with this matter and that I knew nothing about the intentions of your two confidents beforehand.   I disapprove of such use of violence, and there were other, more elegant ways of bringing our opponent to his senses.'   c) At page 121 of the book: 'Your question is a good one, of course, Hentges' statement permits only two interpretations in logic, either Strauss had proceedings brought against him for malicious accusation, or proceedings be brought against Strauss because of the role he played in the background of the affair according to Hentges.'   d) At page 122 of the book: 'In a normal democracy [Strauss] would long since have had criminal proceedings brought against Hentges for defamation.'   e) At page 132 of the book: 'However dubious the background of Roger Hentges may be, by maintaining that Praun was killed in the presence of Strauss' Adjutant General Repenning, he not only brought 'high politics' into things, but he also, without being able to prove it at the time, gave an explanation for the fact that victims Praun and Kloo were in fact still alive at 19.45 on 14.4.1960.'"   (German)   "a) Auf Seite 12 des Buches: 'Eine seiner - jetzt wieder in diesem Band nachlesbaren - Theorien, Frau Brühne sei ungewollt Spielball der großen Politik geworden und die Aussage des BND-Agenten Hentges, Strauß sei über die Geschehnisse um Praun informiert gewesen, fanden eine grausame Bestätigung.'   b)Auf Seite 115 des Buches: 'Es ist Ihnen, sehr geehrter Herr Bundesminister (gemeint Strauß), ohne irgendeinen Zweifel bekannt, daß ich mit dieser Angelegenheit nichts zu tun haben will und ich von den Absichten ihrer zwei Vertrauenspersonen vorher nicht informiert gewesen bin.   Ich bin gegen solche Gewaltanwendungen, und es gab noch andere elegantere Möglichkeiten, unseren Kontrahenten zur Raison zu bringen.'   c)Auf Seite 121 des Buches: 'Ihre Frage ist berechtigt, natürlich läßt Hentges' Aussage nur die logische Alternative, daß entweder ihm selbst wegen falscher Anschuldigung auf Strafanzeige von Seiten von Strauß der Prozeß gemacht oder Strauß wegen der Rolle verfolgt wird, die er Hentges zufolge im Hintergrund der Sache gespielt hat.'   d)Auf Seite 122 des Buches: 'In einer normalen Demokratie hätte er (Strauß) Hentges wegen Verleumdung längst angezeigt.'   e)Auf Seite 132 des Buches: 'Wie zweifelhaft auch immer die Herkunft von Roger Hentges sein mag, durch seine Behauptung, Praun sei in Anwesenheit des damaligen Strauß-Adjutanten Generaloberst Repenning getötet worden, hat er nicht nur die "große Politik" ins Spiel gebracht, er hat auch, ohne es damals beweisen zu können, eine Erklärung dafür gegeben, weshalb die Opfer Praun und Kloo tatsächlich noch am 14.4.1960 um 19.45 lebten.'"           Of these passages, those on pages 115, 121 and 122 of the book were direct quotations from the 1970 publication.   They had not been specifically referred to in the proceedings in 1970/71.           A fine (Ordnungsgeld) of DM 30,000 was imposed on the applicant.           On appeal (sofortige Beschwerde), the order of 14 May 1986 was amended to provide for a fine of DM 15,000.   The remainder of the appeal was rejected.   The Court of Appeal found, inter alia, that it was required not merely to look at the literal meaning of the passages, but to consider how the average reader would have understood them.   The Court added that the overall content of the book and the editor's ultimate aim could not be left out of consideration.   The Court also found that: (Translation)   " .... neither the Regional Court nor the Court of Appeal in the context of the appeal was required or, indeed, authorised to consider the effectiveness or constitutionality of the injunction, which was now in full force, that is, to review also the prohibition of statements using 'words to the same effect'.   In the context of the proceedings leading to the sanction, the full legal effect of the injunction had to be taken as granted for the basis of the imposition of the sanction." (Emphasis added)   (German)   "Weder das Landgericht noch der Senat [war] im Rahmen des Beschwerdeverfahrens veranlaßt oder gar befugt, die Wirksamkeit bzw. die Verfassungsmäßigkeit des rechtskräftig tenorierten Verbots, also auch die Untersagung sinngemäßer Behauptungen, zu überprüfen.   Vielmehr war im Rahmen des Ordnungsmittelverfahrens in vollem Umfang vom rechtskräftigen Verbotstitel als Grundlage der Verhängung des Ordnungsgeldes auszugehen." (Emphasis added)           The Court of Appeal went on to consider the passages individually, concluding that they did fall within the scope of the original injunction.           In considering the fine which had been imposed, the Court noted on the one hand that the applicant was responsible for the publication, and considered that the contravention of the injunction was serious.   On the other hand, the Court noted that only 1,000 of the limited print-run of 2,000 copies had been distributed, and that it has been distributed in circles which had developed critical faculties.   The Court also noted that, by virtue of the length of time which had elapsed since the original murder and subsequent investigation had taken place, the general public interest in the case had diminished considerably.   Finally, the applicant's income should have been taken into account.   The Court of Appeal considered that a fine in the order of the applicant's income for two months was sufficient.   The fine was reduced to DM 15,000, and the possibility of imprisonment as ultimate sanction was lifted.           On 31 July 1989 the Federal Constitutional Court (Bundesverfassungsgericht) rejected the applicant's constitutional complaint (Verfassungsbeschwerde), finding that it had no sufficient prospect of success.   The Constitutional Court first noted that it could not consider whether the conditions for the imposition of the fine had been fulfilled, as its only function was to consider constitutional rights.   In finding that Article 5 para. 1 of the Basic Law (Grundsgesetz), which guarantees freedom of expression, had not been violated, the Court noted that the original injunction prohibited repetition of the rumour in terms or using words to the same effect. That injunction was in force.   Article 5 para. 1 of the Basic Law did, however, apply in determining whether a sanction should be applied, as the provision required any prohibition to be foreseeable so that the person subject to the injunction could behave accordingly.   It was clear from the injunction of 24 March 1970 that not only express repetition of the words was included, but also "words to the same effect".   The Court added that in the interests of the plaintiff a certain flexibility was necessary if the injunction was not to be completely devoid of meaning.   It further noted that the courts had not taken the book at issue "as a whole", but had based themselves on an examination of five specific passages, and that these passages had been classified as not being merely value judgments.   The possibility, in logic, of alternative interpretation did not nullify the finding that the statements amounted to contentions of fact, as, by definition, it was "alternative".           The Constitutional Court found no objection in constitutional law to the consideration of the texts from the point of view of the average reader, in particular as the leaflet was intended for the public.   The finding of fact of the courts below that the five passages corresponded to the wording prohibited by the injunction was, at the very least, tenable and perfectly compatible with the Constitution.     COMPLAINTS           The applicant alleges a violation of Article 7 para. 1 of the Convention in that, when his book was published in 1985, it was not foreseeable that he would be fined for its publication.           He also alleges a violation of Article 10 of the Convention. He contends that, as it was not foreseeable that the passages of his pamphlet would be regarded as falling within the scope of the injunction of 24 March 1970, the interference with his rights under Article 10 cannot be regarded as "prescribed by law".   The applicant submits that the sanction imposed on him cannot be considered as responding to a "pressing social need", especially as any criticism there may have been of the Bavarian Minister President concerned his political rather than his private activities.   The applicant regards the practically unlimited interpretation of the prohibition of the injunction of 24 March 1970 as out of all proportion to the aim pursued.     THE LAW     1.       The applicant alleges a violation of Article 10 (Art. 10) of the Convention, which provides as follows:   "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.   ... 2.   The exercise of these freedoms, since it carries with it duties and responsibilities, 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 Commission finds, first, that the applicant's freedom of expression has been interfered with, and that this interference took the form of a fine which must be justified as "restriction" or "penalty" under Article 10 para. 2 (Art. 10-2).   The Commission also finds that the aim of the interference was to protect the reputation or rights of others, namely the plaintiff to the injunction proceedings.   It could also be seen as maintaining the authority of the judiciary, as the proceedings were technically to enforce a court order, rather than to vindicate the plaintiff.           The Commission finds that the relevant provisions of domestic law clearly provided for the imposition of a fine on the applicant in case of contravention of the injunction of 24 March 1970 (confirmed on 26 June 1970, appeal rejected on 25 January 1971.)   The restriction on the applicant's freedom of expression was accordingly "prescribed by law".           The Commission must also consider whether the fine imposed on the applicant was "necessary in a democratic society" for the purposes established above.   States have a certain margin of appreciation in assessing whether and to what extent an interference is necessary, but this is coupled with the supervision of the Convention organs covering both the legislation and the decisions applying it (cf.   Eur.   Court H.R., Weber judgment of 22 May 1990, Series A no. 177 p. 22, para. 47, with further references).           The Commission recalls that the applicant was fined at the request of the plaintiff to civil proceedings for failure to comply with an injunction not to repeat the proscribed words, or words to the same effect.   The Commission may not consider the terms of the 1970 injunction, as the applicant did not contest its imposition, either before the domestic courts or before the Convention organs.           The Commission notes that the Federal Constitutional Court found that the interpretation of the passages as falling within the scope of the injunction was, at the least, tenable.   Taking this together with the self-evident link between the passages at issue in the 1985 publication and the terms of the injunction, which included "words to the same effect", the Commission finds that it was reasonably foreseeable that the applicant ran the risk of enforcement proceedings following the 1985 publication (cf., in the context of the interpretation of existing case-law, No. 8710/74, Dec. 7.5.82, D.R. 28 pp. 77, 82).   Finally, the Commission finds no indication of a lack of proportionality in the application of an injunction prohibiting "the very words or words to the same effect" to passages which could have been but were not specifically complained of at an earlier date.         Bearing these factors in mind the Commission considers that the interference with the applicant's freedom of expression was "necessary in a democratic society" within the meaning of Article 10 para. 2 (Art. 10-2) 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) of the Convention.     2.      The applicant also alleges a violation of Article 7 para. 1 (Art. 27-1) first sentence of the Convention which provides as follows:           "No one shall be held guilty of any criminal offence         on account of any act or omission which did not constitute         a criminal offence under national or international law at         the time when it was committed."           The Commission notes that the applicant was fined DM 15,000 for failure to comply with an injunction.   The legal basis for the fine was Article 890 para. 1 of the Code of Civil Procedure, which clearly and unambiguously provides for a fine or detention in the case of failure to comply with an order to do or to refrain from doing something.   Even assuming that the fine amounts to a sanction for performance of a "criminal offence" within the meaning of Article 7 (Art. 7) of the Convention, the Commission notes that the provision was in force at the time of the "offence", and Article 7 (Art. 7) cannot be seen to have been violated in this respect.   The Commission also finds, for the reasons indicated above in its consideration of Article 10 (Art. 10) of the Convention, that it was foreseeable that the publication of the applicant's book in 1985 would be found to fall within the scope of the 1970 injunction.           It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission by a majority             DECLARES THE APPLICATION INADMISSIBLE.           Secretary to the Commission          President of the Commission                    (H.C. KRÜGER)                        (C.A. NØRGAARD)