CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 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. 25117/94                       by Klaus SPEER                       against Germany        The European Commission of Human Rights (First Chamber) sitting in private on 18 October 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                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 19 May 1994 by Klaus SPEER against Germany and registered on 12 September 1994 under file No. 25117/94;        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 facts, as they have been submitted by the applicant, may be summarised as follows.        The applicant, born in 1944, is a German national and resident in Berlin.   He is a businessman by profession.   In the proceedings before the Commission he is represented by Mr. H. Mahler, a lawyer practising in Berlin.   A.    Particular circumstances of the case        In 1988 criminal investigations were started against the applicant and others on the suspicion of fraud and other offences.        On 26 May 1992 the Berlin-Tiergarten District Court (Amtsgericht) issued an arrest warrant against the applicant who was taken into detention on remand on 16 June 1992.        On 17 June 1992 the Berlin Public Prosecutor's Office drew up the bill of indictment against the applicant and further accused, charging the applicant, inter alia, with fraud on three counts, usury on three counts, extortion on six counts, extortion with violence and usury, organisation of an illegal game, illegal possession of arms, tax evasion, receiving and corruption.        On 7 August 1992 the Berlin Regional Court (Landgericht) ordered the applicant's continued detention on remand.   The applicant's appeal was to no avail.        In September 1992 a German publishing house published a book on the role of the Mafia in Europe which inter alia referred to the applicant.        Thereupon, the applicant, assisted by his counsel, Mr. Mahler, instituted injunction proceedings before the Berlin Regional Court (Landgericht) against the publishing house.   The applicant requested that the publishing house be prohibited from repeating various statements contained in the above-mentioned book according to which he had a leading role in the world of crime and contacts with other criminals and was involved in the organised crime.        On 22 October 1992 the Regional Court granted the applicant's request as regards part of the statements which related to alleged criminal activities of the applicant, and dismissed the remainder of the action.        On 9 March 1993 the Berlin Court of Appeal (Kammergericht), upon the appeal of the publishing house, quashed the Regional Court's decision and dismissed the applicant's action.        The Court of Appeal observed that according to the case-law in civil matters, anybody had a right to judicial protection against the repetition of unlawful statements.   However, in this context, the fundamental right to freedom of expression had to be taken into account.   This right concerned the free expression of opinions and, in line with recent decisions of the Federal Constitutional Court (Bundesverfassungsgericht), also possibly factual statements.   The Court of Appeal summarised the case-law of the Federal Constitutional Court, according to which the free expression of opinions, even those formulated in a harsh or exaggerated manner, was necessary in the interest of the individual and was also a constituent element of democracy.   These considerations did not apply to factual statements in the same way, in particular, there was no protection as to deliberately imparting untrue statements.   As regards other factual statements, the right to freedom of expression had to be balanced against inter alia the protection of the reputation and the rights of others.   In the case of statements concerning important matters of public interest, there was a presumption in favour of the freedom of expression.   Moreover, a particular statement had to be seen against the general context of a publication.        The Court of Appeal considered that the impugned statements were made in the context of a book on the problem of organised crime in Europe and, more particularly, in Germany, and had called for more efforts in the combat of this crime, which was regarded as an important danger.   The book as a whole thus had the character of a publication on a controversial issue.   The statements regarding the applicant were not intended to disparage the applicant or to discriminate against him, but were necessary to support, as a realistic background, the opinion expressed in the book that there was organised crime, even in Berlin, and that the combat against this crime had to be more efficient. Having regard to the applicant's leading role in the context of criminal events and a fight between gangs in Berlin in 1970, and his subsequent conviction and prison sentence as well as the new criminal proceedings pending against him showed that there was a substantial link between the subject of the book and the statements regarding the applicant.        In these circumstances, the impugned statements could not be regarded as an unlawful violation of the applicant's legitimate interests.   Moreover, to the extent that factual statements were concerned, the applicant had failed to show that they were untrue. As regards the statements relating to alleged meetings between the applicant and a third person, the Court of Appeal noted that one of the co-authors had been informed about such meetings by two police officers in July 1991, as confirmed by a superior police officer employed in the department `organised crime' in the Wiesbaden Federal Police Department (Bundeskriminalamt).   The statements in question were thus based on the results of police investigations and could not be said to be pure fiction or otherwise unreliable.   In this respect, the Court of Appeal noted that the applicant had admitted to knowing the third person concerned.   Furthermore, the statements on the applicant's involvement in the organisation of illegal games of chance were based on the results of the police investigations, and the bill of indictment of 17 June 1992 contained indications to that effect.        On 13 April 1994 the Federal Constitutional Court refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde).        On 27 February 1995 the Berlin Regional Court convicted the applicant of fraud and attempted fraud, of illegal possession of weapons, and of incitement to breach of secrecy on five counts and sentence him to five years and six months' imprisonment.   As regards the remainder of charges, the applicant was partly acquitted, partly the prosecution was discontinued in view of the minor importance of the charge as compared to the offences of which he was convicted.        The applicant lodged an appeal on points of law (Revision). These proceedings are still pending.   COMPLAINTS   1.    The applicant complains about the Berlin Court of Appeal's decision of 9 March 1993, and the court proceedings concerned.   The applicant considers that the Court of Appeal incorrectly balanced the right to freedom of expression and his right to the presumption of innocence.   According to the applicant, the freedom of the press could not justify publications and statements which were not proven to be true, if they were intended to produce, before the trial had taken place, the effects of a criminal finding of guilt.   In this respect, the applicant submits that the authors of the book relied on information given by the police, and that they did not confront the applicant in detail with the contents of the intended publication in order to enable him to comment thereupon.   He invokes Article 6 paras. 1 and 2 of the Convention.   2.    The applicant also complains that, as a result of the publication in question, he did not have a fair hearing in the criminal proceedings against him, as guaranteed by Article 6 para. 1.   THE LAW   1.    The applicant complains about the Berlin Court of Appeal's decision of 9 March 1993, dismissing his request for an injunction prohibiting a publishing house from repeating several statements contained in a book on organised crime in Europe.        The Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77, pp. 81, 88 and Eur. Court H.R., Van de Hurk judgment of 19 April 1994, Series A no. 288, p. 20, para. 61; Klaas judgment of 22 September 1993, Series A no. 269, p. 17, para. 29).        The applicant alleges a violation of Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention in that the Berlin Court of Appeal disregarded the presumption of innocence when balancing his individual interests against the right to freedom of expression, relied on by the publishing house.        Article 6 (Art. 6), so far as relevant, provides as follows:        "1.    In the determination of ... any criminal charge against      him, everyone is entitled to a fair ... hearing ... by a ...      tribunal ...        2.     Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law."        The applicant's submissions relate in particular to the Court of Appeal's legal assessment and the alleged breach of the presumption of innocence.   It seems appropriate to look at these issues   from the point of view of paragraphs 1 and 2 of Article 6 (Art. 6-1, 6-2) taken together.        The Commission notes that, in the bill of indictment of June 1992, the applicant was charged with, inter alia, with fraud, usury, extortion and extortion with violence, organisation of an illegal game, illegal possession of arms, tax evasion, receiving and corruption.        In September 1992 a German publishing house published a book on the role of the Mafia in Europe which inter alia referred to the applicant.        On 9 March 1993, in appeal proceedings, the Berlin Court of Appeal dismissed the applicant's request that the publishing house be prohibited from repeating various statements contained in the above- mentioned book according to which he had a leading role in the world of crime and was involved in the organised crime.   In a detailed reasoning and taking into account the case-law of the Federal Constitutional Court, the Court of Appeal balanced the right to freedom of expression of the publishing house against the applicant's interests, in particular his interest in the protection of his reputation.   The Court of Appeal considered that the impugned statements were made in the context of a publication on a controversial issue, namely the problem of organised crime in Europe and, more particularly, in Germany, which was regarded as an important danger. The Court of Appeal found that, having regard to the applicant's leading role in the context of criminal events and a fight between gangs in Berlin in 1970, and his subsequent conviction and prison sentence as well as the new criminal proceedings pending against him, there was a substantial link between the subject of the book and the statements regarding the applicant.   The Court of Appeal concluded that the impugned statements could not be regarded as an unlawful violation of the applicant's legitimate interests.        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 findings of the Berlin Court of Appeal and the reasons given for dismissing the applicant's claim for a prohibitory injunction against the publishing house concerned, there is no appearance that the Court of Appeal's decision in itself contained any statement infringing the presumption of innocence.   In particular, the Court of Appeal, taking into account the relevant case-law of the Federal Constitutional Court, balanced the applicant's personal interests against the right to freedom of expression and the demands of free reporting on issues of important public interest such as the combat of organised crime.   Moreover, the Court of Appeal duly considered whether the statements relating to the applicant contained untrue or unreliable information.   In this respect, the Court of Appeal considered in particular the result of the investigations against the applicant, as referred to in the bill of indictment of June 1992.        In these circumstances, the applicant's submissions do not disclose any breach of the presumption of innocence.        Moreover, having regard to the conduct of the injunction proceedings as a whole, the Commission finds no other indication that the applicant did not receive a fair hearing in compliance with the principles enshrined in Article 6 paras. 1 and 2 (Art. 6-1, 6-2).   In particular his submissions do not show that, as he was assisted by counsel, he could not duly present his arguments in defence or could not effectively present his arguments.        Accordingly, in the context of the injunction proceedings, there is no appearance of a violation of Article 6 (Art. 6) 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).   2.    The applicant further appears to complain under Article 6 (Art. 6) of the Convention that the publication of the book concerned and the refusal of a prohibitory injunction regarding the impugned statements on his involvement in the organised crime rendered the criminal proceedings pending against him before the Berlin Regional Court unfair.        The Commission recalls that the question of whether a trial conforms to the standards laid down in Article 6 (Art. 6) must be decided on the basis of an evaluation of the trial in its entirety (cf. No. 11058/84, Dec. 13.5.86, D.R. 47, p. 230 with further references).        The Commission has accepted in some cases that a virulent press campaign can adversely affect the fairness of a trial (No. 10486/83, Dec. 9.10.86, D.R. 49, p. 86).   In the present case, the appeal proceedings brought by the applicant against his conviction of February 1995 are still pending.   It is true that it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (cf. Nos 8603/79, 8722/79, 8723/79 and 8729/79 joined, Dec. 18.12.80, D.R. 22, p. 216).   However, the Commission finds that the applicant failed to show that the criticised statements, which formed part of a general publication on organised crime, and the refusal of a prohibitory injunction constituted any such specific factors.        Accordingly, the applicant's complaints in this respect are premature.        It follows that this part of the application is likewise 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)