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CASE OF BROSA v. GERMANY
5709/09 | Judgment (Merits and Just Satisfaction) | Court (Fifth
Section) | 17/04/2014
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FIFTH SECTION
CASE OF BROSA v. GERMANY
(Application no. 5709/09)
JUDGMENT
STRASBOURG
17 April 2014
This judgment will become final in the circumstances set out in Article
44 � 2 of the Convention. It may be subject to editorial revision.
In the case of Brosa v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mark Villiger, President,
Angelika Nu�berger,
Bo�tjan M. Zupancic,
Ann Power-Forde,
Ganna Yudkivska,
Helena J�derblom,
Ale� Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 25 March 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 5709/09) against the
Federal Republic of Germany lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (�the Convention�) by a German national, Mr Ulrich Brosa (�the
applicant�), on 12 January 2009.
2. The applicant was represented by Mr E. Reinecke, a lawyer practising
in Cologne. The German Government (�the Government�) were represented by
their Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry
of Justice.
3. The applicant alleged, in particular, that an injunction prohibiting
him from distributing a leaflet that he had drawn up on the occasion of
mayoral elections had violated his right to freedom of expression
enshrined in Article 10 of the Convention.
4. On 5 March 2013 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1950 and lives in Am�neburg.
A. Background to the case
6. In April 2005, the applicant published an article in a local
newspaper concerning the political orientation of the Berger-88-e.V.
association (�the association�). Subsequently, the newspaper published
the association�s response to that article describing the applicant�s
statements as �intellectually weak and crude� (�geistig schwach und
primitiv�) and as �pamphlets constituting a public danger�
(�gemeingef�hrliche Pamphelete�). The newspaper also published two
letters to the editor. One of them was written by F.G., an elected town
councillor, who contended that the association had no extreme right-wing
tendencies (�keine rechtsradikale Vereinigung�). He expressed that it
was �unfortunate that [the applicant] again and again manages to
publicize his false accusations and to show himself as a pitiful victim�
(�[...] bedauerlich, dass es Herrn Dr. Brosa immer wieder gelingt, seine
falschen Anschuldigungen �ffentlich zu machen und sich als
bedauernswertes �Opfer� darzustellen [...]�). He contended that �he [the
applicant] had evoked the current situation in particular by his
constant spying and false accusations� (�Die derzeitige Situation hat
er insbesondere durch seine st�ndigen Bespitzelungen und
Falschbehauptungen heraufbeschworen [...].�).
7. F.G. was also running for the office of town mayor. In the run-up to
the elections the applicant then distributed a leaflet with the
headline: �Don�t vote for an agitator� (�W�hlen Sie keinen
Scharfmacher�). The text on the leaflet maintained: �Am�neburg is the
seat of several neo-Nazi organisations. Particularly dangerous is the
Berger-88-e.V., for which F.G. [last name written out] is providing a
cover.� (�Am�neburg ist Sitz mehrerer Neonazi-Organisationen. Besonders
gef�hrlich sind die Berger-88-e.V., die F.G. deckt.�). The leaflet also
showed photos of F.G.�s son, the association�s chairman at the time,
taken by a security camera on the applicant�s property late at night.
The applicant explained that he had previously been attacked and that
his door had been smashed repeatedly at night.
B. Proceedings before the domestic courts
1. Proceedings before the Kirchhain District Court
8. On 6 July 2005 the Kirchhain District Court, at F.G.�s request,
issued a civil injunction prohibiting the applicant from distributing
the leaflet and making other assertions of fact (Tatsachenbehauptungen)
which might depict F.G. as a supporter of neo-Nazi organisations. Any
contravention was punishable by a fine of up to 250,000 euros (EUR) or
by imprisonment of up to six months. The court reasoned that the
assertion that F.G. had covered for a particularly dangerous neo-Nazi
organisation had infringed his personality rights. Because of the
upcoming elections, the court found that there was a risk that the
applicant might continue to distribute the leaflet or disseminate the
allegations in another form.
9. The applicant lodged an objection with the Kirchhain District Court.
He submitted, inter alia, that the designation �88�, standing for the
eighth letter of the alphabet [H] as a reference to �Heil Hitler�, was
displayed by members of the association in runes and thus in a form
attributed to neo-Nazism by the German federal domestic intelligence
service (Bundesamt f�r Verfassungsschutz). In addition, the association
had held a ceremony on the weekend after Hitler�s birthday using the
colours black, white and red � the national colours of the German empire
� for the invitation. In support of his allegations, the applicant
referred to the association�s statutes and an incident in which members
of the association had shouted �Heil Hitler� on the occasion of an
Easter bonfire organised by the association. Lastly, he contended that
there was no longer any reason for upholding the injunction, as the
mayoral elections had taken place in the meantime.
10. In its judgment of 18 August 2005 the Kirchhain District Court
upheld the injunction. It found that to claim that someone was
supporting a neo-Nazi organisation amounted to an infringement of that
individual�s honour and social reputation and thus his or her
personality rights (allgemeines Pers�nlichkeitsrecht).
11. The court held that the applicant had failed to provide sufficient
evidence to support his allegation that F.G. had covered for a neo-Nazi
organisation. His submissions were mere conjectures and subjective
interpretations. As a consequence, the court held, the applicant could
not rely on the notion of freedom of expression enshrined in Article 5
of the Basic Law (see paragraph 19 below).
12. The court reasoned, inter alia, that in accordance with its rules,
the association had been founded in 1988, even though it had not been
registered until 1992. Hence, the reference to the number 88 in the name
of the association could not be interpreted as support for neo-Nazism.
As regards the Hitler salute on the occasion of the Easter bonfire, the
applicant had failed to show that the individuals concerned were
�without doubt� members of the association. The court acknowledged that
the use of runes might indeed refer to neo-Nazism, but held that that
did not suffice to prove that the association was of such a character.
Lastly, the court emphasized that the applicant had �confirmed his
determination not to let himself be silenced as a critic of the
plaintiff�. Hence, the court found that the injunction needed to be
maintained despite the fact that the mayoral elections had taken place
in the meantime.
2. Proceedings before the Marburg Regional Court
13. On 28 June 2006 the Marburg Regional Court dismissed the
applicant�s appeal against the District Court�s judgment. The court
noted, however, that there was no longer a need to adjudicate on the
prohibition of further dissemination of the leaflet, as the elections
had taken place in the meantime.
14. The Regional Court explained that the leaflet contained two
different allegations of fact: firstly, that the association was a
particularly dangerous neo-Nazi organisation; and secondly, that F.G.
had been aware of that fact but had nevertheless publicly supported the
organisation. The applicant had failed to prove that those allegations
were true. The court acknowledged that there were several indicators of
the association�s neo-Nazi character �which, all in all, may lead to the
assumption that this is not a mere coincidence�. The association
therefore had to put up with critical questions. The aforementioned
indicators were, however, not �compelling proof� (zwingender Beweis) of
the association�s political orientation.
15. In any case, the court reasoned, the applicant had failed to
provide any evidence for the allegation that F.G. had covered for the
association. The court interpreted the applicant�s statement as an
allegation that F.G. had knowledge of the association�s neo-Nazi
orientation and endorsed it. Referring to the case-law of the Federal
Constitutional Court, the Regional Court acknowledged that allegations
of fact may fall, as a matter of principle, under the notion of freedom
of expression of Article 5 of the Basic Law to the extent that they were
aimed at forming public opinion (meinungsbezogene
Tatsachenbehauptungen). The protection provided by Article 5 of the
Basic Law required, however, that the allegations required substantial
justification. The letter to the editor written by F.G. did not suffice
in that regard.
16. On 19 July 2006 the applicant complained that his right to be heard
before the Regional Court had been breached. He complained, inter alia,
that the court had failed to examine the criminal files against members
of the association in order to establish whether they had committed
crimes of an extremist political nature.
17. On 22 January 2007 the Regional Court dismissed the applicant�s
complaint. It held, inter alia, that the applicant had not sufficiently
substantiated which files should have been examined and in which regard.
Where the applicant had offered evidence by specifying a particular
file, F.G. had not denied that members of the association, wearing
pullovers with the association�s insignia, had been present at an
election campaign event organised by him. Nor had F.G. denied that
certain members of the association had committed crimes, although they
were not necessarily of an extremist political nature. Lastly, the court
emphasized that according to an assessment by the State domestic
intelligence service (Landesamt f�r Verfassungsschutz), the association
was a �fraternity� (�Kerbeburschenschaft�), which the service would
nonetheless �keep an eye on�. The Regional Court thus concluded that
the applicant might have raised a suspicion at the most, but had failed
to prove the association�s neo-Nazi orientation.
3. Decision of the Federal Constitutional Court
18. On 2 March 2007 the applicant lodged a constitutional complaint
with the Federal Constitutional Court. He complained that his freedom of
conscience, his freedom of expression and his right to a fair trial had
been violated. He claimed in particular that the courts had put the onus
of proof on him, whereas in the context of the expression of one�s
opinion it was impossible to provide evidence.
19. On 1 July 2008 the Federal Constitutional Court, without giving
reasons, refused to admit the applicant�s constitutional complaint for
adjudication (file no. 1 BvR 597/07).
II. RELEVANT DOMESTIC LAW AND PRACTICE
20. The relevant parts of section 5 of the Basic Law (Grundgesetz) read
as follows:
�[Freedom of expression, arts and sciences]
(1) Every person shall have the right freely to express and disseminate
his opinions in speech, writing and pictures, and to inform himself
without hindrance from generally accessible sources. Freedom of the
press and freedom of reporting by means of broadcasts and films shall be
guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general
laws, in provisions for the protection of young persons, and in the
right to personal honour.�
21. The claim underlying the injunction was based on an analogy to
section 823(1) and (2), read in conjunction with the second sentence of
Article 1004 � 1 of the German Civil Code (B�rgerliches Gesetzbuch). It
is the well-established case-law of the German courts at the highest
judicial level that a person whose personality rights are jeopardised by
another individual may � under certain specified conditions � lodge a
claim against the latter pursuant to these provisions.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
22. The applicant complained that the injunction had breached his right
to freedom of expression, as provided for in Article 10 of the
Convention, which reads 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. This Article shall not prevent states from requiring the
licensing of broadcasting, television or cinema enterprises.
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.�
23. The Government contested that argument.
A. Admissibility
24. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 � 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties� submissions
(a) The applicant
25. The applicant contested the domestic courts� qualification of his
impugned statements as �allegations of fact� and submitted that they had
failed to give any reasons for their contention. Likewise, they had not
said what evidence they thought the applicant should have put forward to
prove that the association had neo-Nazi tendencies, particularly given
the different connotations of the term �neo-Nazi�.
26. The applicant emphasised that he was not suggesting that F.G. was a
neo-Nazi, but merely that he had covered for the association. The
domestic courts had failed to consider the circumstances under which the
impugned statements had been made. The applicant stressed that he had
participated in a public debate in the run-up to the elections; F.G. had
also participated in the debate and had intentionally provoked reactions
with his letter to the editor in defence of the association. In
addition, the applicant claimed that F.G. had contributed to the overall
debate about neo-Nazism in the region.
27. The applicant further submitted that he had provided the factual
basis for his value judgment that the association was a particularly
dangerous neo-Nazi organisation. He contended that that would have
sufficed as proof, even if the impugned statement had to be qualified as
an allegation of fact. The applicant concluded that the onus of proof
which the domestic courts had imposed on him was too demanding and could
not be complied with in the context of the expression of one�s opinion
in a public debate.
28. Lastly, the applicant challenged the view that the interference
with his freedom of expression had not been particularly serious. He
emphasised that the injunction had had a chilling effect on others. In
addition, he had been deprived of the opportunity to participate in the
political debate in the run-up to the elections.
(b) The Government
29. The Government took the view that the interference with the
applicant�s freedom of expression had been justified. The domestic
courts had struck a fair balance between the applicant�s freedom of
expression and F.G.�s personality rights on the basis of criteria which
were in compliance with the Convention.
30. The Government stressed that the outcome of that balancing process
fell within the margin of appreciation accorded to Member States in
resolving such conflicting priorities.
31. The Government contended that the domestic courts had correctly
categorised the applicant�s statements as allegations of fact because
they were susceptible to proof of their validity. The evidence submitted
by the applicant had been thoroughly assessed by the domestic courts,
which had concluded that his allegations had been insufficiently
substantiated.
32. The Government submitted that in striking a balance between freedom
of expression and personality rights, the latter had � as a rule � to be
given priority in the case of untrue or unproven allegations of fact.
Such unproven allegations had to be tolerated by individuals whose
personality rights were concerned only under special circumstances,
which did not exist in the case at issue.
33. Lastly, the Government pointed out that the interference with the
applicant�s right to freedom of expression had not been particularly
serious as he had simply been prohibited from making the impugned
statements as opposed to being fined or punished in another way.
2. The Court�s assessment
34. The Court emphasises at the outset that freedom of expression, as
guaranteed in Article 10 � 1 of the Convention, constitutes one of the
essential foundations of a democratic society and one of the basic
conditions for its progress and for each individual�s self-fulfilment.
Pursuant to Article 10 � 2, it is applicable not only to "information"
or "ideas" that are favourably received or regarded as inoffensive or as
a matter of indifference, but also to those that offend, shock or
disturb (see, for example, Oberschlick v. Austria (no. 2), 1 July 1997,
� 29, Reports of Judgments and Decisions 1997-IV). Article 10 protects
not only the substance of the ideas and information expressed but also
the form in which they are conveyed. This freedom is subject to the
exceptions set out in Article 10 � 2, which must, however, be construed
strictly (see, among other authorities, Jerusalem v. Austria, no.
26958/95, � 32, ECHR 2001-II).
35. The Court notes that it was not disputed between the parties that
the injunction constituted an interference with the applicant�s right to
freedom of expression, as guaranteed by Article 10 � 1 of the
Convention. Furthermore, there was no dispute that the interference was
prescribed by law and pursued a legitimate aim, namely the protection of
the reputation or rights of others, within the meaning of Article 10 �
2. The Court endorses that assessment.
36. The dispute in the case thus relates to the question whether the
interference was �necessary in a democratic society�. The test of
�necessity in a democratic society� requires the Court to determine
whether the interference complained of corresponded to a �pressing
social need�, whether it was proportionate to the legitimate aim pursued
and whether the reasons given by the national authorities to justify it
were relevant and sufficient (see, for example, Feldek v. Slovakia, no.
29032/95, � 73, ECHR 2001-VIII, and Karman v. Russia, no. 29372/02, �
32, 14 December 2006).
37. The Court reiterates that in assessing whether such a �need� exists
and what measures should be adopted to deal with it, namely whether and
to what extent an interference with the freedom of expression is
necessary, the Contracting States have a certain margin of appreciation.
This margin, however, is not unlimited but goes hand in hand with
European supervision, embracing both the legislation and the decisions
applying it, even those delivered by an independent court. In exercising
its supervisory function, the Court�s task is not to take the place of
the national courts, but rather to review, in the light of the case as a
whole, whether the decisions they have taken pursuant to their power of
appreciation are compatible with Article 10 � 2 of the Convention;
that is whether the interference at issue was �proportionate� to the
legitimate aim pursued and whether the reasons adduced by them to
justify the interference are �relevant and sufficient� (see, among many
other authorities, Scharsach and News Verlagsgesellschaft v. Austria,
no. 39394/98, � 30 (iv), ECHR 2003-XI).
38. In examining the particular circumstances of the case, the Court
will take the following elements into account: the position of the
applicant, the position of the plaintiff in the domestic proceedings,
the subject matter of the publication and the classification of the
contested statement by the domestic courts (compare, for example,
Jerusalem, cited above, � 35, and Karman, cited above, � 33).
39. As to the position of the applicant, the Court notes that he is a
private individual. The applicant participated, however, in a public
discussion on the political orientation of the association. The Court
considers this to be a relevant factor, since by entering the arena of
public debate the applicant laid himself open to scrutiny (compare
Jerusalem, cited above, � 38).
40. As to the position of the plaintiff in the domestic proceedings,
the Court notes that F.G. was an elected town councillor who was running
for the office of mayor at the material time. As such, he was a member
of the municipal government and a candidate in public elections. Thus
his position was that of a politician at the local level.
41. The Court reiterates in this respect that the limits of acceptable
criticism are wider as regards a politician than as regards a private
individual (see Scharsach and News Verlagsgesellschaft, cited above, �
30 (iii)). A politician inevitably and knowingly lays himself open to
close scrutiny of his every word and must thus display a greater degree
of tolerance, especially when he himself makes public statements that
are susceptible to criticism. He is certainly entitled to have his
reputation protected, even when he is not acting in a private capacity,
but the requirements of that protection have to be weighed against the
interests of open discussion of political issues, since exceptions to
freedom of expression must be interpreted narrowly (see Oberschlick (no.
2), cited above, � 29).
42. The applicant issued a leaflet asking citizens not to vote for F.G.
as mayor, primarily on the basis of F.G.�s attitude vis-�-vis an
association which the applicant deemed to have an extremist right-wing
orientation. The leaflet, disseminated in the run-up to the mayoral
elections, set out the applicant�s view of a candidate�s suitability for
the office of mayor and was therefore of a political nature on a
question of public interest at the material time and location. The Court
reiterates in this connection that there is little scope, under Article
10 � 2 of the Convention, for restrictions on political speech or on
debate of questions of public interest (see Scharsach and News
Verlagsgesellschaft, cited above, � 30 (iii)).
43. As regards the qualification of the impugned statement by the
domestic courts, the Court notes that they considered it to consist of
two elements: firstly, the allegation that the association was a
neo-Nazi organisation that, moreover, was particularly dangerous; and,
secondly, the allegation that F.G. had �covered� for the organisation.
The Court further observes that the German courts considered both to be
allegations of fact without further discussion. The Court reiterates
that while the existence of facts can be demonstrated, the accuracy of
value judgments is not susceptible to proof. The requirement to prove
the accuracy of a value judgment is impossible to fulfil and infringes
freedom of opinion itself, which is a fundamental part of the right
secured by Article 10 (see, among many others, Jerusalem, cited above, �
42; Karman, cited above, � 41).
44. The Court�s position is that the differentiation between an
allegation of fact and a value judgment finally lies in the degree of
factual proof which has to be established in order for it to constitute
a fair comment under Article 10 (see Scharsach and News
Verlagsgesellschaft, cited above, � 40, and Krone Verlag GmbH & Co KG
and MEDIAPRINT Zeitungs- und Zeitschriftenverlag GmbH & Co KG v. Austria
(dec.), no. 42429/98, 20 March 2003).
45. As regards the first element of the impugned statement � that the
association was a particularly dangerous neo-Nazi organisation � the
Court observes that the applicant considered that the facts he had
presented showed that the association was a neo-Nazi organisation. The
impugned statement was thus an expression of the applicant�s position on
that dispute following his assessment of facts which might be accurate
or not. The Court notes in this connection that the Regional Court
emphasised that the domestic intelligence service was continuing to
monitor the association on suspicion of extremist tendencies, which the
Court interprets as a sign of the ongoing debate on the association�s
political orientation. The Court reiterates that the use of the term
�Nazi�, like the derivative term �neo-Nazi�, is capable of evoking in
those who read it different notions as to its content and significance
(compare, for the term �Nazi� and its derivative �neo-fascist�, Karman,
cited above, � 40). It cannot be considered as a mere allegation of
facts, as it also carries a clear element of value judgment which is not
fully susceptible to proof. This is even more the case for the notion of
a �particularly dangerous� neo-Nazi organisation. Thus, the Court cannot
accept the view of the German courts that the statement that the
association was a particularly dangerous neo-Nazi organisation was a
mere allegation of fact.
46. Nonetheless, the Court further reiterates that, even where a
statement amounts to a value judgment, the proportionality of an
interference may depend on whether there exists a sufficient factual
basis for the impugned statement, since even a value judgment without
any factual basis to support it may be excessive (see Jerusalem, cited
above, � 43; Feldek, cited above, � 76; and Karman, cited above, � 41).
47. The Court notes that the Regional Court acknowledged the existence
of several indicators of the association�s possible neo-Nazi character
which, in the Regional Court�s view, �all in all may lead to the
assumption that this is not a mere coincidence�. Thus, the court
admitted, in substance, that the opinion expressed by the applicant was
not devoid of a factual basis. The remaining question is whether that
factual basis was sufficient.
48. The Court observes that the German courts required �compelling
proof� and thereby applied a degree of precision that comes close to the
one usually required for establishing the well-foundedness of a criminal
charge by a judicial court. The Court reiterates in this context that
the degree of precision for establishing the well-foundedness of a
criminal charge can hardly be compared to that which ought to be
observed when expressing someone�s opinion on a matter of public
concern. The standards applied when assessing someone�s political
activities in terms of morality are different from those required for
establishing an offence under criminal law (see, mutatis mutandis,
Scharsach and News Verlagsgesellschaft, cited above, � 43). The Court
therefore finds that the German courts required a disproportionately
high degree of factual proof to be established.
49. The Court notes that the statement that the association was a
neo-Nazi organisation has no relevance on its own, as it was not the
association that sought an injunction. Its relevance for the case at
hand lies in the interpretation of the term �covered� by the German
courts as meaning that F.G. had knowledge of and approved of the
association�s neo-Nazi orientation. The defamatory character attributed
by the German courts to the term �covered� results from the allegation
that the association was a neo-Nazi organisation. The Court notes in
this connection that the applicant did not insinuate that F.G. was a
neo-Nazi.
50. As regards the second element of the impugned statement, the Court
observes that the term �covered� refers to the views expressed by F.G.
in his letter to the editor. As such, the statement formed part of an
ongoing debate. This context was also discernible to the public. The
Court notes that the term �covered� was interpreted by the German courts
in a restrictive manner contending that F.G. had knowledge of the
association�s neo-Nazism and endorsed it. It was thus seen as a mere
allegation of fact for which no sufficient factual basis existed. The
Court, however, cannot endorse that view as, again, it does not take due
account of the context in which the statement was made. It rather finds
that a sufficient factual basis for the applicant�s statement lay in
F.G.�s contribution to the debate by way of his letter to the editor
emphasizing that the association had no extreme right wing tendencies
and calling the applicant�s statements �false allegations�.
51. Considering that F.G. was a politician at the local level at the
material time and that the ongoing debate was being conducted in public
and with relatively harsh words from all sides, and given the political
context of the upcoming local elections, the Court finds that the
applicant�s statement did not exceed the acceptable limits of criticism.
52. In conclusion, the Court finds that by considering the impugned
statement to be mere allegations of fact requiring a disproportionately
high degree of proof to be established, the German courts failed to
strike a fair balance between the relevant interests and to establish a
"pressing social need" for putting the protection of the personality
rights of F.G. above the applicant�s right to freedom of expression,
even in the context of a civil injunction rather than criminal charges
or monetary compensation claims.
53. Under these circumstances, the Court considers that the domestic
courts overstepped the margin of appreciation afforded to them and that
the interference was disproportionate to the aim pursued and not
�necessary in a democratic society�.
54. There has been, accordingly, a violation of Article 10 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
55. Relying on Article 6 � 1 of the Convention, the applicant further
complained of a violation of his right to a fair trial, as the domestic
courts had refused to hear witnesses and to consult the criminal files
of members of the association. Moreover, he complained, under Article 5
of the Convention, that the decisions taken by the domestic courts had
encouraged right-wing extremists to commit crimes against him. He also
complained, under Article 13 of the Convention, that the Federal
Constitutional Court had refused to admit his complaint for
adjudication.
56. The Court has examined the remainder of the applicant�s complaints
as submitted by him. However, having regard to all the material in its
possession, the Court finds that these complaints do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. It follows that the remainder of the
application must be rejected as manifestly ill-founded, pursuant to
Article 35 �� 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
57. Article 41 of the Convention provides:
�If the Court finds that there has been a violation of the Convention or
the Protocols thereto, and if the internal law of the High Contracting
Party concerned allows only partial reparation to be made, the Court
shall, if necessary, afford just satisfaction to the injured party.�
A. Damage
58. The applicant claimed 8,000 euros (EUR) in respect of non-pecuniary
damage. He argued that he lived in a small town of 5,000 inhabitants and
that is was particularly problematic for him that he had not received
support from the domestic courts.
59. The Government did not comment on the non-pecuniary damage claim.
60. Having regard to the specific circumstances of the case and making
its assessment on an equitable basis, the Court awards the applicant EUR
3,000, plus any tax that may be chargeable, in respect of non-pecuniary
damage.
B. Costs and expenses
61. Submitting documentary evidence, the applicant also claimed EUR
2,683.02 for the costs and expenses incurred before the domestic courts.
These comprised court fees as well as lawyer�s fees for his counsel and
for F.G.�s counsel, as established by the Kirchhain District Court by
order of 23 October 2007.
62. The Government did not comment on the costs claimed.
63. According to the Court�s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers
it reasonable to award the sum of EUR 2,683.02 for costs and expenses in
the domestic proceedings.
C. Default interest
64. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central
Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint under Article 10 of the Convention concerning
the injunction admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of Article 10 of the
Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three
months from the date on which the judgment becomes final in accordance
with Article 44 � 2 of the Convention, the following amounts:
(i) EUR 3,000 (three thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,683.02 (two thousand six hundred and eighty-three euros and
two cents), plus any tax that may be chargeable to the applicant, in
respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
4. Dismisses the remainder of the applicant�s claim for just
satisfaction.
Done in English, and notified in writing on 17 April 2014, pursuant to
Rule 77 �� 2 and 3 of the Rules of Court.
Claudia Westerdiek Mark Villiger
Registrar President
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CASE OF BROSA v. GERMANY
5709/09 | Judgment (Merits and Just Satisfaction) | Court (Fifth
Section) | 17/04/2014
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FIFTH SECTION
CASE OF BROSA v. GERMANY
(Application no. 5709/09)
JUDGMENT
STRASBOURG
17 April 2014
This judgment will become final in the circumstances set out in Article
44 � 2 of the Convention. It may be subject to editorial revision.
In the case of Brosa v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mark Villiger, President,
Angelika Nu�berger,
Bo�tjan M. Zupancic,
Ann Power-Forde,
Ganna Yudkivska,
Helena J�derblom,
Ale� Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 25 March 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 5709/09) against the
Federal Republic of Germany lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (�the Convention�) by a German national, Mr Ulrich Brosa (�the
applicant�), on 12 January 2009.
2. The applicant was represented by Mr E. Reinecke, a lawyer practising
in Cologne. The German Government (�the Government�) were represented by
their Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry
of Justice.
3. The applicant alleged, in particular, that an injunction prohibiting
him from distributing a leaflet that he had drawn up on the occasion of
mayoral elections had violated his right to freedom of expression
enshrined in Article 10 of the Convention.
4. On 5 March 2013 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1950 and lives in Am�neburg.
A. Background to the case
6. In April 2005, the applicant published an article in a local
newspaper concerning the political orientation of the Berger-88-e.V.
association (�the association�). Subsequently, the newspaper published
the association�s response to that article describing the applicant�s
statements as �intellectually weak and crude� (�geistig schwach und
primitiv�) and as �pamphlets constituting a public danger�
(�gemeingef�hrliche Pamphelete�). The newspaper also published two
letters to the editor. One of them was written by F.G., an elected town
councillor, who contended that the association had no extreme right-wing
tendencies (�keine rechtsradikale Vereinigung�). He expressed that it
was �unfortunate that [the applicant] again and again manages to
publicize his false accusations and to show himself as a pitiful victim�
(�[...] bedauerlich, dass es Herrn Dr. Brosa immer wieder gelingt, seine
falschen Anschuldigungen �ffentlich zu machen und sich als
bedauernswertes �Opfer� darzustellen [...]�). He contended that �he [the
applicant] had evoked the current situation in particular by his
constant spying and false accusations� (�Die derzeitige Situation hat
er insbesondere durch seine st�ndigen Bespitzelungen und
Falschbehauptungen heraufbeschworen [...].�).
7. F.G. was also running for the office of town mayor. In the run-up to
the elections the applicant then distributed a leaflet with the
headline: �Don�t vote for an agitator� (�W�hlen Sie keinen
Scharfmacher�). The text on the leaflet maintained: �Am�neburg is the
seat of several neo-Nazi organisations. Particularly dangerous is the
Berger-88-e.V., for which F.G. [last name written out] is providing a
cover.� (�Am�neburg ist Sitz mehrerer Neonazi-Organisationen. Besonders
gef�hrlich sind die Berger-88-e.V., die F.G. deckt.�). The leaflet also
showed photos of F.G.�s son, the association�s chairman at the time,
taken by a security camera on the applicant�s property late at night.
The applicant explained that he had previously been attacked and that
his door had been smashed repeatedly at night.
B. Proceedings before the domestic courts
1. Proceedings before the Kirchhain District Court
8. On 6 July 2005 the Kirchhain District Court, at F.G.�s request,
issued a civil injunction prohibiting the applicant from distributing
the leaflet and making other assertions of fact (Tatsachenbehauptungen)
which might depict F.G. as a supporter of neo-Nazi organisations. Any
contravention was punishable by a fine of up to 250,000 euros (EUR) or
by imprisonment of up to six months. The court reasoned that the
assertion that F.G. had covered for a particularly dangerous neo-Nazi
organisation had infringed his personality rights. Because of the
upcoming elections, the court found that there was a risk that the
applicant might continue to distribute the leaflet or disseminate the
allegations in another form.
9. The applicant lodged an objection with the Kirchhain District Court.
He submitted, inter alia, that the designation �88�, standing for the
eighth letter of the alphabet [H] as a reference to �Heil Hitler�, was
displayed by members of the association in runes and thus in a form
attributed to neo-Nazism by the German federal domestic intelligence
service (Bundesamt f�r Verfassungsschutz). In addition, the association
had held a ceremony on the weekend after Hitler�s birthday using the
colours black, white and red � the national colours of the German empire
� for the invitation. In support of his allegations, the applicant
referred to the association�s statutes and an incident in which members
of the association had shouted �Heil Hitler� on the occasion of an
Easter bonfire organised by the association. Lastly, he contended that
there was no longer any reason for upholding the injunction, as the
mayoral elections had taken place in the meantime.
10. In its judgment of 18 August 2005 the Kirchhain District Court
upheld the injunction. It found that to claim that someone was
supporting a neo-Nazi organisation amounted to an infringement of that
individual�s honour and social reputation and thus his or her
personality rights (allgemeines Pers�nlichkeitsrecht).
11. The court held that the applicant had failed to provide sufficient
evidence to support his allegation that F.G. had covered for a neo-Nazi
organisation. His submissions were mere conjectures and subjective
interpretations. As a consequence, the court held, the applicant could
not rely on the notion of freedom of expression enshrined in Article 5
of the Basic Law (see paragraph 19 below).
12. The court reasoned, inter alia, that in accordance with its rules,
the association had been founded in 1988, even though it had not been
registered until 1992. Hence, the reference to the number 88 in the name
of the association could not be interpreted as support for neo-Nazism.
As regards the Hitler salute on the occasion of the Easter bonfire, the
applicant had failed to show that the individuals concerned were
�without doubt� members of the association. The court acknowledged that
the use of runes might indeed refer to neo-Nazism, but held that that
did not suffice to prove that the association was of such a character.
Lastly, the court emphasized that the applicant had �confirmed his
determination not to let himself be silenced as a critic of the
plaintiff�. Hence, the court found that the injunction needed to be
maintained despite the fact that the mayoral elections had taken place
in the meantime.
2. Proceedings before the Marburg Regional Court
13. On 28 June 2006 the Marburg Regional Court dismissed the
applicant�s appeal against the District Court�s judgment. The court
noted, however, that there was no longer a need to adjudicate on the
prohibition of further dissemination of the leaflet, as the elections
had taken place in the meantime.
14. The Regional Court explained that the leaflet contained two
different allegations of fact: firstly, that the association was a
particularly dangerous neo-Nazi organisation; and secondly, that F.G.
had been aware of that fact but had nevertheless publicly supported the
organisation. The applicant had failed to prove that those allegations
were true. The court acknowledged that there were several indicators of
the association�s neo-Nazi character �which, all in all, may lead to the
assumption that this is not a mere coincidence�. The association
therefore had to put up with critical questions. The aforementioned
indicators were, however, not �compelling proof� (zwingender Beweis) of
the association�s political orientation.
15. In any case, the court reasoned, the applicant had failed to
provide any evidence for the allegation that F.G. had covered for the
association. The court interpreted the applicant�s statement as an
allegation that F.G. had knowledge of the association�s neo-Nazi
orientation and endorsed it. Referring to the case-law of the Federal
Constitutional Court, the Regional Court acknowledged that allegations
of fact may fall, as a matter of principle, under the notion of freedom
of expression of Article 5 of the Basic Law to the extent that they were
aimed at forming public opinion (meinungsbezogene
Tatsachenbehauptungen). The protection provided by Article 5 of the
Basic Law required, however, that the allegations required substantial
justification. The letter to the editor written by F.G. did not suffice
in that regard.
16. On 19 July 2006 the applicant complained that his right to be heard
before the Regional Court had been breached. He complained, inter alia,
that the court had failed to examine the criminal files against members
of the association in order to establish whether they had committed
crimes of an extremist political nature.
17. On 22 January 2007 the Regional Court dismissed the applicant�s
complaint. It held, inter alia, that the applicant had not sufficiently
substantiated which files should have been examined and in which regard.
Where the applicant had offered evidence by specifying a particular
file, F.G. had not denied that members of the association, wearing
pullovers with the association�s insignia, had been present at an
election campaign event organised by him. Nor had F.G. denied that
certain members of the association had committed crimes, although they
were not necessarily of an extremist political nature. Lastly, the court
emphasized that according to an assessment by the State domestic
intelligence service (Landesamt f�r Verfassungsschutz), the association
was a �fraternity� (�Kerbeburschenschaft�), which the service would
nonetheless �keep an eye on�. The Regional Court thus concluded that
the applicant might have raised a suspicion at the most, but had failed
to prove the association�s neo-Nazi orientation.
3. Decision of the Federal Constitutional Court
18. On 2 March 2007 the applicant lodged a constitutional complaint
with the Federal Constitutional Court. He complained that his freedom of
conscience, his freedom of expression and his right to a fair trial had
been violated. He claimed in particular that the courts had put the onus
of proof on him, whereas in the context of the expression of one�s
opinion it was impossible to provide evidence.
19. On 1 July 2008 the Federal Constitutional Court, without giving
reasons, refused to admit the applicant�s constitutional complaint for
adjudication (file no. 1 BvR 597/07).
II. RELEVANT DOMESTIC LAW AND PRACTICE
20. The relevant parts of section 5 of the Basic Law (Grundgesetz) read
as follows:
�[Freedom of expression, arts and sciences]
(1) Every person shall have the right freely to express and disseminate
his opinions in speech, writing and pictures, and to inform himself
without hindrance from generally accessible sources. Freedom of the
press and freedom of reporting by means of broadcasts and films shall be
guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general
laws, in provisions for the protection of young persons, and in the
right to personal honour.�
21. The claim underlying the injunction was based on an analogy to
section 823(1) and (2), read in conjunction with the second sentence of
Article 1004 � 1 of the German Civil Code (B�rgerliches Gesetzbuch). It
is the well-established case-law of the German courts at the highest
judicial level that a person whose personality rights are jeopardised by
another individual may � under certain specified conditions � lodge a
claim against the latter pursuant to these provisions.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
22. The applicant complained that the injunction had breached his right
to freedom of expression, as provided for in Article 10 of the
Convention, which reads 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. This Article shall not prevent states from requiring the
licensing of broadcasting, television or cinema enterprises.
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.�
23. The Government contested that argument.
A. Admissibility
24. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 � 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties� submissions
(a) The applicant
25. The applicant contested the domestic courts� qualification of his
impugned statements as �allegations of fact� and submitted that they had
failed to give any reasons for their contention. Likewise, they had not
said what evidence they thought the applicant should have put forward to
prove that the association had neo-Nazi tendencies, particularly given
the different connotations of the term �neo-Nazi�.
26. The applicant emphasised that he was not suggesting that F.G. was a
neo-Nazi, but merely that he had covered for the association. The
domestic courts had failed to consider the circumstances under which the
impugned statements had been made. The applicant stressed that he had
participated in a public debate in the run-up to the elections; F.G. had
also participated in the debate and had intentionally provoked reactions
with his letter to the editor in defence of the association. In
addition, the applicant claimed that F.G. had contributed to the overall
debate about neo-Nazism in the region.
27. The applicant further submitted that he had provided the factual
basis for his value judgment that the association was a particularly
dangerous neo-Nazi organisation. He contended that that would have
sufficed as proof, even if the impugned statement had to be qualified as
an allegation of fact. The applicant concluded that the onus of proof
which the domestic courts had imposed on him was too demanding and could
not be complied with in the context of the expression of one�s opinion
in a public debate.
28. Lastly, the applicant challenged the view that the interference
with his freedom of expression had not been particularly serious. He
emphasised that the injunction had had a chilling effect on others. In
addition, he had been deprived of the opportunity to participate in the
political debate in the run-up to the elections.
(b) The Government
29. The Government took the view that the interference with the
applicant�s freedom of expression had been justified. The domestic
courts had struck a fair balance between the applicant�s freedom of
expression and F.G.�s personality rights on the basis of criteria which
were in compliance with the Convention.
30. The Government stressed that the outcome of that balancing process
fell within the margin of appreciation accorded to Member States in
resolving such conflicting priorities.
31. The Government contended that the domestic courts had correctly
categorised the applicant�s statements as allegations of fact because
they were susceptible to proof of their validity. The evidence submitted
by the applicant had been thoroughly assessed by the domestic courts,
which had concluded that his allegations had been insufficiently
substantiated.
32. The Government submitted that in striking a balance between freedom
of expression and personality rights, the latter had � as a rule � to be
given priority in the case of untrue or unproven allegations of fact.
Such unproven allegations had to be tolerated by individuals whose
personality rights were concerned only under special circumstances,
which did not exist in the case at issue.
33. Lastly, the Government pointed out that the interference with the
applicant�s right to freedom of expression had not been particularly
serious as he had simply been prohibited from making the impugned
statements as opposed to being fined or punished in another way.
2. The Court�s assessment
34. The Court emphasises at the outset that freedom of expression, as
guaranteed in Article 10 � 1 of the Convention, constitutes one of the
essential foundations of a democratic society and one of the basic
conditions for its progress and for each individual�s self-fulfilment.
Pursuant to Article 10 � 2, it is applicable not only to "information"
or "ideas" that are favourably received or regarded as inoffensive or as
a matter of indifference, but also to those that offend, shock or
disturb (see, for example, Oberschlick v. Austria (no. 2), 1 July 1997,
� 29, Reports of Judgments and Decisions 1997-IV). Article 10 protects
not only the substance of the ideas and information expressed but also
the form in which they are conveyed. This freedom is subject to the
exceptions set out in Article 10 � 2, which must, however, be construed
strictly (see, among other authorities, Jerusalem v. Austria, no.
26958/95, � 32, ECHR 2001-II).
35. The Court notes that it was not disputed between the parties that
the injunction constituted an interference with the applicant�s right to
freedom of expression, as guaranteed by Article 10 � 1 of the
Convention. Furthermore, there was no dispute that the interference was
prescribed by law and pursued a legitimate aim, namely the protection of
the reputation or rights of others, within the meaning of Article 10 �
2. The Court endorses that assessment.
36. The dispute in the case thus relates to the question whether the
interference was �necessary in a democratic society�. The test of
�necessity in a democratic society� requires the Court to determine
whether the interference complained of corresponded to a �pressing
social need�, whether it was proportionate to the legitimate aim pursued
and whether the reasons given by the national authorities to justify it
were relevant and sufficient (see, for example, Feldek v. Slovakia, no.
29032/95, � 73, ECHR 2001-VIII, and Karman v. Russia, no. 29372/02, �
32, 14 December 2006).
37. The Court reiterates that in assessing whether such a �need� exists
and what measures should be adopted to deal with it, namely whether and
to what extent an interference with the freedom of expression is
necessary, the Contracting States have a certain margin of appreciation.
This margin, however, is not unlimited but goes hand in hand with
European supervision, embracing both the legislation and the decisions
applying it, even those delivered by an independent court. In exercising
its supervisory function, the Court�s task is not to take the place of
the national courts, but rather to review, in the light of the case as a
whole, whether the decisions they have taken pursuant to their power of
appreciation are compatible with Article 10 � 2 of the Convention;
that is whether the interference at issue was �proportionate� to the
legitimate aim pursued and whether the reasons adduced by them to
justify the interference are �relevant and sufficient� (see, among many
other authorities, Scharsach and News Verlagsgesellschaft v. Austria,
no. 39394/98, � 30 (iv), ECHR 2003-XI).
38. In examining the particular circumstances of the case, the Court
will take the following elements into account: the position of the
applicant, the position of the plaintiff in the domestic proceedings,
the subject matter of the publication and the classification of the
contested statement by the domestic courts (compare, for example,
Jerusalem, cited above, � 35, and Karman, cited above, � 33).
39. As to the position of the applicant, the Court notes that he is a
private individual. The applicant participated, however, in a public
discussion on the political orientation of the association. The Court
considers this to be a relevant factor, since by entering the arena of
public debate the applicant laid himself open to scrutiny (compare
Jerusalem, cited above, � 38).
40. As to the position of the plaintiff in the domestic proceedings,
the Court notes that F.G. was an elected town councillor who was running
for the office of mayor at the material time. As such, he was a member
of the municipal government and a candidate in public elections. Thus
his position was that of a politician at the local level.
41. The Court reiterates in this respect that the limits of acceptable
criticism are wider as regards a politician than as regards a private
individual (see Scharsach and News Verlagsgesellschaft, cited above, �
30 (iii)). A politician inevitably and knowingly lays himself open to
close scrutiny of his every word and must thus display a greater degree
of tolerance, especially when he himself makes public statements that
are susceptible to criticism. He is certainly entitled to have his
reputation protected, even when he is not acting in a private capacity,
but the requirements of that protection have to be weighed against the
interests of open discussion of political issues, since exceptions to
freedom of expression must be interpreted narrowly (see Oberschlick (no.
2), cited above, � 29).
42. The applicant issued a leaflet asking citizens not to vote for F.G.
as mayor, primarily on the basis of F.G.�s attitude vis-�-vis an
association which the applicant deemed to have an extremist right-wing
orientation. The leaflet, disseminated in the run-up to the mayoral
elections, set out the applicant�s view of a candidate�s suitability for
the office of mayor and was therefore of a political nature on a
question of public interest at the material time and location. The Court
reiterates in this connection that there is little scope, under Article
10 � 2 of the Convention, for restrictions on political speech or on
debate of questions of public interest (see Scharsach and News
Verlagsgesellschaft, cited above, � 30 (iii)).
43. As regards the qualification of the impugned statement by the
domestic courts, the Court notes that they considered it to consist of
two elements: firstly, the allegation that the association was a
neo-Nazi organisation that, moreover, was particularly dangerous; and,
secondly, the allegation that F.G. had �covered� for the organisation.
The Court further observes that the German courts considered both to be
allegations of fact without further discussion. The Court reiterates
that while the existence of facts can be demonstrated, the accuracy of
value judgments is not susceptible to proof. The requirement to prove
the accuracy of a value judgment is impossible to fulfil and infringes
freedom of opinion itself, which is a fundamental part of the right
secured by Article 10 (see, among many others, Jerusalem, cited above, �
42; Karman, cited above, � 41).
44. The Court�s position is that the differentiation between an
allegation of fact and a value judgment finally lies in the degree of
factual proof which has to be established in order for it to constitute
a fair comment under Article 10 (see Scharsach and News
Verlagsgesellschaft, cited above, � 40, and Krone Verlag GmbH & Co KG
and MEDIAPRINT Zeitungs- und Zeitschriftenverlag GmbH & Co KG v. Austria
(dec.), no. 42429/98, 20 March 2003).
45. As regards the first element of the impugned statement � that the
association was a particularly dangerous neo-Nazi organisation � the
Court observes that the applicant considered that the facts he had
presented showed that the association was a neo-Nazi organisation. The
impugned statement was thus an expression of the applicant�s position on
that dispute following his assessment of facts which might be accurate
or not. The Court notes in this connection that the Regional Court
emphasised that the domestic intelligence service was continuing to
monitor the association on suspicion of extremist tendencies, which the
Court interprets as a sign of the ongoing debate on the association�s
political orientation. The Court reiterates that the use of the term
�Nazi�, like the derivative term �neo-Nazi�, is capable of evoking in
those who read it different notions as to its content and significance
(compare, for the term �Nazi� and its derivative �neo-fascist�, Karman,
cited above, � 40). It cannot be considered as a mere allegation of
facts, as it also carries a clear element of value judgment which is not
fully susceptible to proof. This is even more the case for the notion of
a �particularly dangerous� neo-Nazi organisation. Thus, the Court cannot
accept the view of the German courts that the statement that the
association was a particularly dangerous neo-Nazi organisation was a
mere allegation of fact.
46. Nonetheless, the Court further reiterates that, even where a
statement amounts to a value judgment, the proportionality of an
interference may depend on whether there exists a sufficient factual
basis for the impugned statement, since even a value judgment without
any factual basis to support it may be excessive (see Jerusalem, cited
above, � 43; Feldek, cited above, � 76; and Karman, cited above, � 41).
47. The Court notes that the Regional Court acknowledged the existence
of several indicators of the association�s possible neo-Nazi character
which, in the Regional Court�s view, �all in all may lead to the
assumption that this is not a mere coincidence�. Thus, the court
admitted, in substance, that the opinion expressed by the applicant was
not devoid of a factual basis. The remaining question is whether that
factual basis was sufficient.
48. The Court observes that the German courts required �compelling
proof� and thereby applied a degree of precision that comes close to the
one usually required for establishing the well-foundedness of a criminal
charge by a judicial court. The Court reiterates in this context that
the degree of precision for establishing the well-foundedness of a
criminal charge can hardly be compared to that which ought to be
observed when expressing someone�s opinion on a matter of public
concern. The standards applied when assessing someone�s political
activities in terms of morality are different from those required for
establishing an offence under criminal law (see, mutatis mutandis,
Scharsach and News Verlagsgesellschaft, cited above, � 43). The Court
therefore finds that the German courts required a disproportionately
high degree of factual proof to be established.
49. The Court notes that the statement that the association was a
neo-Nazi organisation has no relevance on its own, as it was not the
association that sought an injunction. Its relevance for the case at
hand lies in the interpretation of the term �covered� by the German
courts as meaning that F.G. had knowledge of and approved of the
association�s neo-Nazi orientation. The defamatory character attributed
by the German courts to the term �covered� results from the allegation
that the association was a neo-Nazi organisation. The Court notes in
this connection that the applicant did not insinuate that F.G. was a
neo-Nazi.
50. As regards the second element of the impugned statement, the Court
observes that the term �covered� refers to the views expressed by F.G.
in his letter to the editor. As such, the statement formed part of an
ongoing debate. This context was also discernible to the public. The
Court notes that the term �covered� was interpreted by the German courts
in a restrictive manner contending that F.G. had knowledge of the
association�s neo-Nazism and endorsed it. It was thus seen as a mere
allegation of fact for which no sufficient factual basis existed. The
Court, however, cannot endorse that view as, again, it does not take due
account of the context in which the statement was made. It rather finds
that a sufficient factual basis for the applicant�s statement lay in
F.G.�s contribution to the debate by way of his letter to the editor
emphasizing that the association had no extreme right wing tendencies
and calling the applicant�s statements �false allegations�.
51. Considering that F.G. was a politician at the local level at the
material time and that the ongoing debate was being conducted in public
and with relatively harsh words from all sides, and given the political
context of the upcoming local elections, the Court finds that the
applicant�s statement did not exceed the acceptable limits of criticism.
52. In conclusion, the Court finds that by considering the impugned
statement to be mere allegations of fact requiring a disproportionately
high degree of proof to be established, the German courts failed to
strike a fair balance between the relevant interests and to establish a
"pressing social need" for putting the protection of the personality
rights of F.G. above the applicant�s right to freedom of expression,
even in the context of a civil injunction rather than criminal charges
or monetary compensation claims.
53. Under these circumstances, the Court considers that the domestic
courts overstepped the margin of appreciation afforded to them and that
the interference was disproportionate to the aim pursued and not
�necessary in a democratic society�.
54. There has been, accordingly, a violation of Article 10 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
55. Relying on Article 6 � 1 of the Convention, the applicant further
complained of a violation of his right to a fair trial, as the domestic
courts had refused to hear witnesses and to consult the criminal files
of members of the association. Moreover, he complained, under Article 5
of the Convention, that the decisions taken by the domestic courts had
encouraged right-wing extremists to commit crimes against him. He also
complained, under Article 13 of the Convention, that the Federal
Constitutional Court had refused to admit his complaint for
adjudication.
56. The Court has examined the remainder of the applicant�s complaints
as submitted by him. However, having regard to all the material in its
possession, the Court finds that these complaints do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. It follows that the remainder of the
application must be rejected as manifestly ill-founded, pursuant to
Article 35 �� 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
57. Article 41 of the Convention provides:
�If the Court finds that there has been a violation of the Convention or
the Protocols thereto, and if the internal law of the High Contracting
Party concerned allows only partial reparation to be made, the Court
shall, if necessary, afford just satisfaction to the injured party.�
A. Damage
58. The applicant claimed 8,000 euros (EUR) in respect of non-pecuniary
damage. He argued that he lived in a small town of 5,000 inhabitants and
that is was particularly problematic for him that he had not received
support from the domestic courts.
59. The Government did not comment on the non-pecuniary damage claim.
60. Having regard to the specific circumstances of the case and making
its assessment on an equitable basis, the Court awards the applicant EUR
3,000, plus any tax that may be chargeable, in respect of non-pecuniary
damage.
B. Costs and expenses
61. Submitting documentary evidence, the applicant also claimed EUR
2,683.02 for the costs and expenses incurred before the domestic courts.
These comprised court fees as well as lawyer�s fees for his counsel and
for F.G.�s counsel, as established by the Kirchhain District Court by
order of 23 October 2007.
62. The Government did not comment on the costs claimed.
63. According to the Court�s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers
it reasonable to award the sum of EUR 2,683.02 for costs and expenses in
the domestic proceedings.
C. Default interest
64. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central
Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint under Article 10 of the Convention concerning
the injunction admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of Article 10 of the
Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three
months from the date on which the judgment becomes final in accordance
with Article 44 � 2 of the Convention, the following amounts:
(i) EUR 3,000 (three thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,683.02 (two thousand six hundred and eighty-three euros and
two cents), plus any tax that may be chargeable to the applicant, in
respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
4. Dismisses the remainder of the applicant�s claim for just
satisfaction.
Done in English, and notified in writing on 17 April 2014, pursuant to
Rule 77 �� 2 and 3 of the Rules of Court.
Claudia Westerdiek Mark Villiger
Registrar President
TERMINATOR
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Hom�opathie ist nichts als H�tchenspielerbetrug und organisierte Kriminalit�t
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