CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 32165/96                       by Frank WÖCKEL                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 16 April 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            Mrs    M. HION            Mr     R. NICOLINI              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 27 December 1995 by Frank WÖCKEL against Germany and registered on 8 July 1996 under file No. 32165/96;        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, born in 1964, is a German national and resident in Berlin.   He is an environmental consultant by profession.        The facts of the case, as submitted by the applicant, may be summarised as follows.        In May 1995 the applicant, a non-smoker, requested the Berlin Prosecutor's Office (Amtsanwaltschaft) to enforce criminal proceedings against MM. G. and D. on charges of unlawful coercion (Nötigung) and of having caused bodily harm, stating that, in his presence, they had been smoking cigarettes while driving in a non-smoking bus.   By letter of 27 November 1995 the Prosecutor's Office informed the applicant that the proceedings against MM. G. and D. had been discontinued.   The Office found that, having regard to the statements of MM. G. and D., no unlawful coercion could be proven.   Moreover, given the risk of passive smoking elsewhere, it could not be established that the applicant suffered any injuries to his health as a consequence of the smoking of MM. G. and D.        On 15 September 1995, the President's Office (Präsidialrat) of the Federal Constitutional Court (Bundesverfassungsgericht), upon his constitutional complaint (Verfassungsbeschwerde), informed the applicant about the possible obstacles to the admissibility of his complaint, in particular the non-exhaustion of ordinary proceedings as far as his request for prosecution of MM. G. and D. was concerned and the limitations of judicial control of the State's positive obligations to enact legislation in health matters.        In November 1995 the applicant further addressed a petition to the Federal Diet (Bundestag) requesting that the legislature be ordered to enact legislation prohibiting smoking in public.   He joined a list of signatures.        In reply, his attention was drawn to its decisions of 21 September 1994 and 31 March 1995 on previous petitions.   In these decisions, the Diet had noted that the Food Act (Lebensmittel- und Bedarfsgegenständegesetz) contained provisions prohibiting or limiting advertisement for tobacco-products and that the tobacco industry had entered into an agreement of self-restraint further limiting advertisement of tobacco-products.   Legislation for the protection of non-smokers in air traffic, the federal railways and in public transport, in restaurants and at work had been enacted.   The Diet had also raised the constitutional and practical problems with regard to legislation, in particular penal legislation, prohibiting smoking. Rather, information on the risks of smoking, such as the campaign started in 1987 by the Federal Office for Public Information on Health Issues (Bundeszentrale für gesundheitliche Aufklärung) was called for.        On 26 May 1996 the Federal Diet closed the proceedings regarding the applicant's petition of November 1995.   The Diet considered that it could not support the applicant's request for a general prohibition on smoking as experience had shown that information on the risks of smoking was more effective than punishment.     COMPLAINTS        The applicant complains about the lack of effective protection of non-smokers.   He submits in particular that he has been exposed to smoking in public buildings such as police headquarters or court buildings.   He further complains that German courts do not regard smoking as constituting the criminal offence of causing bodily harm. He also states that, in his apartment, he has been suffering from his neighbour's smoking, and that he cannot participate in religious ceremonies or assemblies without being exposed to smoking.   He also refers to smoking in schools and in public transport.   He invokes Articles 2, 3, 6, 8, 9 and 11 of the Convention and Article 2 of Protocol No. 1.     THE LAW        The applicant, invoking several provisions of the Convention and of Protocol No. 1, respectively, complains about the allegedly insufficient protection of non-smokers.        The Commission has examined the applicant's submissions in particular under Articles 2 and 8 (Art. 2, 8) of the Convention.        Article 2 para. 1 (Art. 2-1) provides as follows:        "Everyone's right to life shall be protected by law.   No one      shall be deprived of his life intentionally save in the execution      of a sentence of a court following his conviction of a crime for      which this penalty is provided by law."        Article 8 (Art. 8) reads:        "1.    Everyone has the right to respect for his private and      family life, his home and his correspondence.        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Commission recalls that the approach to the interpretation of Article 2 (Art. 2) must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (cf. Eur. Court HR, McCann and Others v. United Kingdom judgment of 27 September 1995, Series A no. 324, p. 45, para. 146).   It imposes an obligation on Contracting States not only to refrain from taking life "intentionally" but also to take appropriate steps to safeguard life (Eur. Court HR, McCann and Others judgment, op. cit., pp. 46-47, paras. 147-148; No. 7154/75, Dec. 12.7.78, D.R. 14, p. 31).        Moreover, as regards Article 8 (Art. 8) of the Convention, the Court held that environmental pollution may affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health (cf. Eur. Court HR, López Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p. 55, para. 51; Guerra and Others v. Italy judgment of 19 February 1998, Reports of Judgments and Decisions 1998, para. 60).   The positive obligations inherent in an effective respect for private or family life may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (cf. Eur. Court HR, X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, para. 23; Botta v. Italy judgment of 24 February 1998, Reports of Judgments and Decisions 1998, para. 33).        The present case relates to the question whether the German State is obliged, as claimed by the applicant, to enact legislation prohibiting smoking in public with a view to protecting non-smokers.        The Commission observes that the choice of the means calculated to secure compliance with the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States' margin of appreciation.   There are different ways of ensuring respect for the Convention rights, and the nature of the State's obligation will depend on the aspects of the Convention right that is at issue.        The Commission notes that German law contains provisions limiting the advertising of tobacco products and prohibiting smoking in certain public areas.   Moreover, the German authorities have given preference to a public information campaign on the injurious effects of smoking.        The Commission finds that, bearing in mind the competing interests of the applicant as a non-smoker and of the interests of other individuals to continue smoking and the margin of appreciation left to the national authorities, the absence of a general prohibition on advertising of tobacco products and on smoking does not amount to a failure on the part of the German State to ensure the applicant's rights under Articles 2 and 8 (Art. 2, 8) of the Convention.        In these circumstances, there is no appearance of a violation of the applicant's rights under the Convention and the Protocols thereto.        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, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.       M.F. BUQUICCHIO                               M.P. PELLONPÄÄ      Secretary                                     President to the First Chamber                          of the First Chamber