CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1995

.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. 24274/94                       by Hovik SIMONIAN                       against Germany        The European Commission of Human Rights (First Chamber) sitting in private on 6 September 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC              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 11 April 1994 by Hovik SIMONIAN against Germany and registered on 6 June 1994 under file No. 24274/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   FACTS        The facts of the case, as they have been submitted by the applicant, may be summarised as follows.   I.    The background of the application        The applicant, born in 1949, is a Lebanese national and resident at Rougemont in Switzerland.   He is a businessman by profession. Before the Commission he is represented by MM. H.-H. Kupzog and R. Strauch III, lawyers practising in Cologne.        In May 1983 the Basel-Stadt Public Prosecutor's Office (Staatsanwaltschaft) instituted preliminary investigations against the applicant on the suspicion of having been involved in international drug trafficking and money laundering.   The applicant was arrested and taken into detention on remand in Switzerland in May 1983.   He was released in July 1983.   The criminal proceedings against the applicant were discontinued in November 1988.        In the course of these investigations, German broadcasting reported on drug and arms trafficking in Europe, as well as money laundry in Switzerland in broadcasts of December 1984, January and May 1985, respectively, and in this context also mentioned the Swiss proceedings and the suspicions against the applicant.   Moreover, a book was published on the issue of money laundering in Switzerland, which inter alia referred to the applicant and the investigation proceedings against him.   II.   The compensation proceedings against broadcasting companies        On 3 August 1988 the Cologne Regional Court (Landgericht) dismissed the applicant's action, i.e. in particular compensation claims for non-material damages, against German broadcasting companies and editors who had been involved in the above-mentioned reports.        The Regional Court found that, as regards the broadcasts in December 1984, any claims had become statute-barred.   Furthermore, claims regarding the broadcasts in January 1985 were statute-barred in respect of one of the defendants as the service of the action upon him had been out of time.        Moreover, the Regional Court stated that the applicant's compensation claims concerning the broadcasts in January and May 1985 were unfounded.   The applicant could not claim compensation for a violation of his personality rights (Persönlichkeitsrechtsverletzung). The Regional Court considered that the broadcasts of January 1985 did not contain any untrue statements of facts.   In particular, the Regional Court did not accept the applicant's submission that one of his comments was presented as a refuted statement in defence and that he had been described as a person found guilty of money laundering. Rather, the defendants had reported about an existing suspicion against him.   Reporting about offences and grievances was the legitimate task of the media.   Moreover, the defendants had not breached the principle of presumption of innocence, as the report had been cautious in the circumstances prevailing and had been limited to stating a suspicion against the applicant.   The Regional Court continued that the same considerations applied to the broadcast of May 1985 to the extent that both broadcasts had the same contents.   As regards the further passages regarding new elements supporting the suspicion against the applicant, no other conclusions could be drawn.        On 27 June 1989 the Cologne Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal against the Regional Court's judgment of August 1988.   The Court of Appeal, assuming that none of the compensation claims had become statute-barred, found that such claims were unfounded.   Considering the German case-law and legal literature on compensation claims for violation of personality rights and the presumption of innocence in case of reports in the media on persons suspected of having committed a criminal offence, the Court of Appeal came to the conclusion that the emissions concerned had truly informed the public on a matter of general interest, namely drug trafficking.        On 12 June 1990 the Federal Court of Justice (Bundesgerichtshof) dismissed the applicant's appeal on points of law (Revision).   III. The injunction proceedings against Mr. Ziegler        On 15 August 1990 the Cologne Regional Court dismissed the applicant's request for an injunction against Mr. Ziegler and the German publisher of his book.   The Regional Court found that the applicant's claim that the defendants be prohibited from further publishing any references to the applicant was unfounded.   In particular, the fact that the applicant's name had been mentioned and the contents of the impugned statements did not amount to a violation of his personality rights.   In this respect the Regional Court referred to the judgment of 27 June 1989.   It also considered that the relevant passages in the book only reported about the opening of the preliminary investigations against the applicant, the subject of these investigations and the outcome of the proceedings, and that these statements were on the whole true.        On 15 January 1991 the Cologne Court of Appeal dismissed the applicant's appeal.   The Court of Appeal confirmed the considerations in its judgment of 27 June 1989 and the findings of the Regional Court. It considered in particular that the fact that the investigation proceedings against the applicant had been discontinued in November 1988 did not prohibit the defendants from referring to these matters in the context of a general discussion of money laundering and drug trafficking.   IV.   The compensation proceedings against Mr. Ziegler        On 20 March 1991 the Cologne Regional Court dismissed the applicant's compensation claims against Mr. Ziegler and the German publisher of his book, as well as his request for an injunction prohibiting the further distribution of the book in question.   The Regional Court referred in particular to the previous court judgments.        On 19 November 1991 the Cologne Court of Appeal dismissed the applicant's appeal.        On 14 July 1992 the Federal Court of Justice refused the applicant's request for legal aid in view of lodging an appeal on points of law.   The Federal Court of Justice found that the applicant had failed to show that he fulfilled the financial conditions for being granted legal aid.   V.    The Constitutional Court proceedings        On 20 October 1993 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaints concerning the decisions taken in the context of the first set of compensation proceedings (the decisions of the Federal Court of Justice of 12 June 1990, of the Cologne Court of Appeal of 27 June 1989 and the Cologne Regional Court of 3 August 1988, respectively) and the decisions taken in the context of the injunction proceedings (the decisions of the Cologne Court of Appeal of 15 January 1991 and of the Cologne Regional Court of 15 August 1990, respectively).   The decision was served on 5 November 1993.   COMPLAINTS        The applicant complains under Article 6 para. 2 and Article 8 of the Convention about the above court decisions refusing compensation, and a prohibitory injunction, in respect of publications infringing the presumption of innocence and his reputation.   THE LAW        The applicant complains about German court decisions refusing compensation, and a prohibitory injunction, in respect of publications on criminal proceedings against him and the suspicion of having committed criminal offences.   He invokes Article 6 para. 2 (Art. 6-2) of the Convention.        Article 6 para. 2 (Art. 6-2) provides that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."        The Commission notes that in May 1983 the Swiss prosecution authorities instituted preliminary investigations against the applicant on the suspicion of having been involved in international drug trafficking and money laundering.   The criminal proceedings against the applicant were discontinued in November 1988.        In the course of these investigations, German broadcasting reported on drug and arms trafficking in Europe, as well as money laundering in Switzerland in broadcasts of December 1984, January and May 1985, respectively, and in this context also mentioned the Swiss proceedings and the suspicions against the applicant.   Moreover, a book was published on the issue of money laundering in Switzerland, which inter alia referred to the applicant and the investigation proceedings against him.        The applicant brought civil actions before the German courts against the broadcasting companies and editors who had been involved in the above-mentioned broadcasts, as well as against the author of the said book and its publisher.   These actions remained unsuccessful on the ground that the competent German courts found that the applicant's personality rights had not been infringed.   The German courts considered in particular that the reports on the applicant only had contained true facts such as the existence of the suspicion against the applicant or the criminal proceedings against him, and had also regard to the public interest in matters such as drug trafficking.        The Commission recalls that the presumption of innocence is to be observed not only by the criminal court trying a case, but also by other authorities, including other courts.   Article 6 para. 2 (Art. 6-2) thus excludes any formal declaration by these authorities that somebody is guilty of an offence before this is established according to law by a competent court.   However, the authorities may inform the public about criminal investigations or about an existing suspicion (cf. 7986/77, Dec. 3.10.78, D.R. 13 p. 73; Dec. 10847/84, Dec. 7.10.85, D.R. 44 p. 238; No. 16697/90, Dec. 30.11.92 - not published).        The Commission finds that, having regard to the respective findings of the German courts and the reasons given for dismissing the applicant's civil claims against third persons, there is no appearance that the court decisions in themselves contained any statement infringing the presumption of innocence.   In particular, the German courts, when examining whether the applicant's personality rights were infringed, considered the demands of the presumption of innocence and its consequences as to reporting in the media on criminal investigations and suspects involved in such proceedings.   In the litigation brought by the applicant, they found nothing going beyond the information about the course of the Swiss criminal proceedings against the applicant and the suspicion against him.        In these circumstances, the applicant's submissions do not disclose any breach of the presumption of innocence.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2).   2.    The applicant complains under Article 8 (Art. 8) of the Convention that the German courts did not afford him protection against the alleged violation of the presumption of innocence and of his reputation.        The applicant thereby invokes a positive obligation, namely to interfere with other persons' right to freedom of expression, a right guaranteed under Article 10 (Art. 10) of the Convention, with a view to protect his reputation.        The Commission recalls that although positive obligations may be required by Article 8 (Art. 8) of the Convention, the way in which a High Contracting Party may meet such obligations is largely within its discretion (cf. No. 10871/84, Dec. 10.7.86 D.R. 48 p. 154).   In the present case, the applicant had an actionable right to privacy. Moreover, the Commission, taking into account its above findings under Article 6 para. 2 (Art. 6-2), considers that the German court decisions did not show any lack of respect for the applicant's right to respect for his private life, as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)