KIESER AND TRALAU-KLEINERT v. GERMANY
Inadmissible
André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The applicants, Mr Albrecht Kieser and Mr Peter Tralau-Kleinert, are German nationals, who were born in 1949 and 1937 respectively and live in Cologne. They were represented before the Court by Mr E. Reinecke, a lawyer practising in Cologne. 2. The facts of the case, as submitted by the applicants, may be summarised as follows. 3. The publishing company M. DuMont Schauberg, registered in Cologne, publishes daily newspapers including Kölner Stadtanzeiger, Kölner Rundschau and Express. The chairman of the supervisory board of the publishing company is Mr Alfred Neven DuMont, son of Mr Kurt Neven DuMont and Ms Gabriele DuMont, who died in 1968 and 1978 respectively. 4. In February 2006 the applicants, journalists for the online magazine Neue Rheinische Zeitung, published an article concerning the so-called “aryanisation profits” (“Arisierungsprofite”) of Germans during the Nazi regime and the role of the DuMont family in these activities. The article, which contained some six pages and photos, entitled “Discoveries about the publishing family Neven DuMont in Nazi times: No resistance, but aryanisation profits” read in part as follows: “The publishing family Neven DuMont, which has declared itself every now and then for years .... as being haunted by the Nazi regime and being a member of the resistance, profited from aryanisation....” “Last Friday a congress took place in the adult evening school covering the topic of “aryanisation”. There the journalist and historian Niebel sowed doubts. Niebel, who had no access to files of the tax offices, cited in his speech parts of the denazification file of Kurt Neven DuMont, publisher of Kölnische Zeitung during the Nazi period and father of the present publisher Alfred Neven DuMont. There the former publisher confessed to an unlawful appropriation of Jewish real estate in 1941...” “As a matter of fact the Neven DuMont family took possession of three houses in Breite Straße....The houses, respectively the real estate, belonged to the Jewish merchant Fritz Brandenstein and his wife, Sofie. In 1939 they were forced to emigrate, the Nazis confiscated their fortune and the Gerling company interimpurchased the real estate for 6 weeks. Afterwards Gabriele DuMont, wife of Kurt Neven DuMont, purchased the real estate. The price is not known.....” “Following the inquiries of Ingo Niebel, already in 1938 the DuMont publishing company grabbed a house of the merchant Emil Lippmann in Luxemburger Straße via its mutual insurance company. Lippmann was accused of “racial defilement” and died shortly afterwards....” “In the fifties the publishing company DuMont and the widow Brandenstein reached an out-of-court settlement concerning compensation. This is the reason why the amount of money paid is not generally known. The same applies to the daughters of M. E. Lippmann....” 5. These parts of the article referred to the following three real estate purchases: 6. In 1938 a mutual insurance company situated in Cologne, and which insured the employees of the M. DuMont Schauberg company, purchased real estate situated at 301 Luxemburger Straße in Cologne from Mr Lippmann, a German Jew who was persecuted and died shortly afterwards. In 1951 the legal heirs of Mr Lippmann renounced any restitution claims after having primarily lodged such claims. 7. According to the denazification file of Mr Kurt Neven DuMont, in 1941 Ms Gabriele DuMont bought real estate in Leyboldstraße in Cologne, which was owned by a Mr A. Ottenheimer. Mr Ottenheimer was a German Jew who had emigrated in 1937. Therefore his property was liquidated by a curator. In 1949 Ms DuMont and Mr Ottenheimer (now known as Otten) reached a settlement concerning the structural condition of the property in 1941 (price, size, value and cultivation) and restitution claims. In this settlement the property was declared as being in essence undeveloped except for cellar walls and concrete foundations. 8. Furthermore in 1941 Ms Gabriele DuMont purchased real estate, located in Breite Straße in Cologne for 255,000 Reichsmark. The vendor was the Gerling company, which had purchased the real estate three years before at auction for 46,000 Reichsmark. The former owner of the property was a company belonging to a Jewish couple who had fled Germany in 1939. 9. The chairman of the supervisory board of the publishing company, Mr Alfred Neven DuMont, instituted an action for an interim injunction with the Cologne District Court after the applicants’ article was published, in which he precisely indicated the parts of the article which he considered not to be true. 10. The Cologne District Court and afterwards the Cologne Court of Appeal issued an interim injunction and ordered the applicants to refrain from disseminating certain parts of the article. 11. On 19 September 2007 the Cologne Regional Court prohibited in particular any further publication of the following elements of the published article, subject to penalty (“strafbewährte Unterlassungserklärung”) of up to 250,000 euros for each contravention, under Articles 1004 § 1, 823 § 2 of the Civil Code taken in conjunction with Article 186 of the Criminal Code, read in the light of the right to protection of personality rights (“Allgemeines Persönlichkeitsrecht”, see §§ 23 seq., below): “...to refrain from giving the impression that the plaintiff’s family unlawfully enriched itself during the Nazi regime with foreign fortune, in particular by statements such as “the plaintiff’s family DuMont made aryanisation profits when purchasing the real estate in Leyboldstr. 19, Breite Straße 82, 86, 88 and Luxemburger Straße 301”. 12. According to the Regional Court, the relevant passages of the article in question amounted to a serious interference with Mr DuMont’s right to the protection of his personality rights. The Regional Court considered that the impugned statements had to be classified as statements of fact. A statement of fact had to be assumed when a passage of an article or an article as a whole led the reader to draw a peremptory conclusion from it. In the Regional Court’s view, the article in question mainly made statements of fact because the term “aryanisation profit”, used in the context of the purchase of real estate, created the impression that the DuMont family had enriched itself unlawfully during the Nazi regime with foreign fortune by abusing the predicament in which the Jewish population found itself. The veracity of that statement could be proved. The Cologne Regional Court found that, the impugned statement being a statement of fact and not a value judgment, the burden of proof concerning the veracity of the statement lay with the applicants. However, the applicants had failed to prove the veracity of the allegations. 13. In particular, regarding the real estate in Leyboldstraße, the Cologne Regional Court stated that the mere claim that the purchase price had been below the current market value was insufficient, because this was a general assumption due to the political situation in Germany at that time and the fact that German Jews were persecuted and expropriated. The applicants’ statement that the property was a built-up area was contradicted by statements and proof provided by the plaintiff, Mr DuMont. He had stated that an old building had been demolished in 1937 and a subsequent settlement between Ms DuMont and Mr Otten expressly declared that the property had not been developed in 1941, apart from concrete foundations and cellar walls. As a consequence, the applicants’ reference to an address book of Cologne (the “Greven’s address book”) as proof was considered to be too imprecise und therefore insufficient. 14. Concerning the real estate in Breite Straße the Cologne Regional Court found that the applicants had failed to substantiate that the DuMont family had exploited the Jews’ plight, firstly because the DuMont family had purchased the real estate some three years after the Gerling company had purchased it at auction for 46,000 Reichsmark and secondly because the price paid by the DuMont family had exceeded the auction price by 209,000 Reichsmark. As this purchase did not indicate a clear exploitation of the Jews’ plight, the statements were to be classified as false. As far as the applicants offered a statutory declaration by the historian Niebel as proof of this allegation, the court held that in view of this finding there was no need to pursue the proof provided by the applicants. 15. With regard to the real estate in Luxemburger Straße the Cologne Regional Court held that no profit had been made by the DuMont family because it had not been the DuMont family who had purchased the real estate, but a legally independent mutual insurance company situated in Cologne and which insured the DuMont company’s employees. Furthermore, other real estate, comparable to that in Luxemburger Straße, had been sold for similar prices around the same time. 16. The Cologne Regional Court therefore concluded that the applicants had not proved the veracity of their statements as there had either been no profits made by the DuMont family or the evidence produced by the applicants had not been sufficient. As far as the applicants argued that the term “aryanisation” had to be classified as a value judgment, the court was of the opinion that, even when classified as a value judgment, it still had to be considered as ambivalent. It was necessary with ambivalent expressions to examine their admissibility on the basis of the interpretation which caused the most serious interference. Against this background the statements had to be regarded as untrue and thus were not protected by freedom of speech. Moreover, the court held that there had not been a legitimate interest in publishing the statements. It was true that the publication of untrue statements of fact could be justified. However, this was only the case if the person disseminating the information had tried sufficiently to verify the facts prior to publication and if any remaining doubts as to the truth of the facts had been made sufficiently clear. In the case at hand, the applicants had not even come close to exhausting all possibilities of establishing the facts and the article was far from being balanced coverage that also indicated doubts as to the truth of the statements. 17. As far as the plaintiff wanted the publication of other parts of the article to be prohibited, the Cologne Regional Court allowed the action for one part. For other parts the applicants made a declaration of discontinuance subject to penalty (strafbewährte Unterlassungserklärung). 18. On 21 September 2008 the Cologne Court of Appeal dismissed an appeal by the applicants against the judgment and refused to grant the applicants leave to appeal on points of law. It endorsed the reasoning of the Regional Court. It expressly confirmed the Regional Court’s finding that the statements were to be classified as statements of fact as they were open to objective verification and proof. Even if parts of the statements comprised value judgments, these were based on documented incidents like the denazification file of Mr Kurt Neven DuMont, address books or files of the competent tax authority. As it was primarily these documents which were supposed to prove the conclusion that the DuMont family had participated in aryanisation profits, the main focus of the statements was not the expression of an opinion but a statement of facts. 19. On 3 February 2009 the Federal Court of Justice rejected the applicants’ complaint about the refusal to grant them leave to appeal on points of law (Nichtzulassungsbeschwerde), without giving further reasons. 20. On 4 March 2009 the applicants lodged a constitutional complaint with the Federal Constitutional Court. The applicants claimed a violation of their right to freedom of expression insofar as the Cologne Regional Court and the Cologne Court of Appeal had ordered them to refrain from giving the impression that the plaintiff’s family had unlawfully enriched itself during the Nazi regime with foreign fortune, in particular by statements such as “the plaintiff’s family DuMont made aryanisation profits when purchasing the real estate in Leyboldstr. 19, Breite Straße 82, 86, 88 and Luxemburger Straße 301”. The applicants claimed that the Cologne Regional Court and the Cologne Court of Appeal had omitted to clarify whether these passages of the article in question were to be classified as statements of facts or value judgments. The classification as “ambivalent expressions” was an oversimplification contravening the Federal Constitutional Court’s case-law. 21. On 24 September 2009 the Federal Constitutional Court declined to consider the constitutional complaint without providing reasons. 22. The claim underlying the injunction was based on an analogy to Article 823(1) and (2), read in conjunction with the second sentence of Article 1004 § 1 of the German Civil Code taken together with Article 186 of the Criminal Code. It is the well-established case-law of the German courts 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.