CASE OF BROSA v. GERMANY
Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
5. The applicant was born in 1950 and lives in Amöneburg. 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” (“gemeingefährliche 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 öffentlich 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 ständigen 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” (“Wählen Sie keinen Scharfmacher”). The text on the leaflet maintained: “Amöneburg 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.” („Amöneburg ist Sitz mehrerer Neonazi-Organisationen. Besonders gefährlich 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. 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 neoNazism by the German federal domestic intelligence service (Bundesamt für 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 Persönlichkeitsrecht). 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. 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 für 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 neoNazi orientation. 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).