CASE OF ANNEN v. GERMANY
Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information);Non-pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Vincent A. De Gaetano
6. The applicant was born in 1951 and lives in Weinheim. 7. On 18 and 19 July 2005 the applicant, who campaigns against abortion, distributed leaflets in the immediate vicinity of the medical practices of anesthetists Dr M. and Dr R., who run a day clinic. Furthermore, the applicant deposited leaflets in all letterboxes in the vicinity of the day clinic. 8. The front page of the leaflets contained the following text in bold letters: “In the day clinic Dr M./Dr R. [full names and address] unlawful abortions are performed” (“In der Tagesklinik Dr.M./Dr.R. [...] werden rechtswidrige Abtreibungen durchgeführt”) 9. Followed by an explanation set in smaller letters: “which are, however, allowed by the German legislator and are not subject to criminal liability. The attestation of counselling protects the “doctor” and the mother from criminal responsibility, but not from their responsibility before God.” (“die aber der deutsche Gesetzgeber erlaubt und nicht unter Strafe stellt. Der Beratungsschein schützt „Arzt“ und Mutter vor Strafverfolgung, aber nicht vor der Verantwortung vor Gott.“) 10. A box below contained the following text: “According to international criminal law: murder is the intentional “bringing-to-death” of an innocent human being!” (“Sinngemӓβ aus den internationalen Strafgesetzen: Mord ist das vorsӓtzliche “Zu-Tode-Bringen” eines unschuldigen Menschen!”) 11. On the back of the folded leaflet, the applicant quoted the Federal Constitutional Court’s leading judgment with regard to abortion (see paragraph 28 below) as well as a statement by ChristophWilhelm Hufeland, the personal physician of Goethe and Schiller, dealing with the role of doctors in relation to voluntary euthanasia and abortion. He also cited section 12 § 1 of the Law on Conflicts in Pregnancy (see paragraph 27 below) and asked readers to make use of their influence on those performing and assisting in abortions. Furthermore, the following text appeared on the back of the folded leaflet: “The murder of human beings in Auschwitz was unlawful, but the morally degraded NS-State allowed the murder of innocent people and did not make it subject to criminal liability.” (“Die Ermordung der Menschen in Auschwitz war rechtswidrig, aber der moralisch verkommene NS-Staat hatte den Mord an den unschuldigen Menschen erlaubt und nicht unter Strafe gestellt.”) 12. Below this sentence the leaflet referred to the website “www.babycaust.de”. This website, which was operated by the applicant, contained, inter alia, an address list of so-called “abortion doctors”, in which the day clinic and the full names of Dr M. and Dr R. were mentioned. This list was accessible on the website under the link “death or life”/“request for prayers for Germany” (Gebetsanliegen für Deutschland). 13. Dr M. and Dr R. filed a request for a civil injunction against the applicant. They submitted that only legal abortions were performed at their day clinic. The applicant’s leaflet created the erroneous impression that the abortions performed were contrary to the relevant legal provisions. 14. On 22 January 2007 the Ulm Regional Court granted the requested injunction and ordered the applicant to desist from further disseminating in the immediate vicinity of the day clinic leaflets containing the plaintiffs’ names and the assertion that unlawful abortions were performed in the plaintiffs’ medical practice. The Regional Court further ordered the applicant to desist from mentioning the plaintiffs’ names and address in the list of “abortion doctors” on the website “www.babycaust.de”. 15. The Regional Court considered that the statements in the applicant’s leaflet made the incorrect allegation that abortions were performed outside the legal conditions. This was not called into question by the further explanation that the abortions were not subject to criminal liability, as the whole layout of the leaflet was intended to draw the reader’s attention to the first sentence set in bold letters, while the further additions were set in smaller letters with the intent of dissimulating their content. The Regional Court further considered that by singling out the plaintiffs, who had not given him any reasons to do so, the applicant had created a socalled “pillory effect”. The allegations raised by the applicant seriously interfered with the plaintiffs’ personality rights. It followed that the applicant’s right to freedom of expression had to cede. 16. The Regional Court considered that the same principles applied to the mentioning of the plaintiffs’ names on the website entitled “babycaust.de”. This implied a connection between the plaintiffs and crimes which were, according to the applicant, comparable to the crimes committed by the Nazis during the Holocaust, and was not covered by the applicant’s freedom of expression and had thus not to be tolerated by the plaintiffs. 17. On 27 October 2007 the Stuttgart Court of Appeal rejected the applicant’s appeal. It did not find it necessary to examine whether the text of the leaflets had to be qualified as a statement of facts or as an expression of opinion as, in any event, the applicant’s freedom of opinion had to cede. The Court of Appeal confirmed the Regional Court’s assessment that the text in the leaflet implied that the plaintiffs performed unlawful actions. This was not called into question by the further explanations, as the average reader could not be expected to draw the distinction between the act of abortion which was justified under Article 218a § 2 of the Criminal Code and the act of abortion which was merely exempt from prosecution under Article 218a § 1 of the Criminal Code (see paragraph 26 below). Seen from a layman’s point of view, the text of the leaflet created the impression that the act of abortion, as permitted by the German legislator, amounted to unlawful homicide, or even to murder. The statement was at the very least ambiguous and had not to be tolerated by the plaintiffs. 18. Even if one were to assume that the leaflet did not contain a wrong statement of facts, the applicant’s freedom of expression had to cede. The Court of Appeal reiterated that freedom of expression conveyed the right to express an opinion even in an offending, shocking or disturbing way. If the expression of opinion was part of a debate on matters of public interest, there was an assumption militating in favour of freedom of expression. However, in the instant case the applicant had created a massive “pillory effect” by singling out the plaintiffs, who had not given the applicant any reason to do so. The performance of abortions was criticised with harsh and rigid words. This was further aggravated by the Holocaust reference. The Court of Appeal further noted that the applicant was not under any specific pressure to express his general criticism of the facilitation of abortions with such a massive violation of the plaintiffs’ personality rights. 19. The Court of Appeal further considered that it had not been necessary for the plaintiffs to submit the exact content of the website, as this website was generally accessible and its content was thus known. It then went on to state: “The content of the webpage is likewise characterised by the fact that the defendant labels individuals, including the plaintiffs, “abortion doctors” and puts their actions on a level with the national-socialist Holocaust and with mass murder. Therefore, the plaintiffs’ claim to compel the defendant to refrain from performing the impugned action must be granted. In that connection, the court refers to its above reasoning. Furthermore, the defendant himself admitted that he had, on the webpage, labelled the plaintiffs “abortion doctors” who are directly or indirectly involved in the performance of abortions.” 20. The Court of Appeal did not grant leave to appeal on points of law. 21. On 12 February 2008 the Federal Court of Justice refused the applicant’s request for legal aid, on the ground that the applicant’s intended appeal on points of law lacked sufficient prospect of success. 22. On 17 March 2008 the applicant lodged a constitutional complaint against the judgments of the Ulm Regional Court, of the Stuttgart Court of Appeal and against the decision of the Federal Court of Justice. He complained, in particular, that the impugned decisions violated his right to freedom of expression. 23. On 2 July 2009 the Federal Constitutional Court, sitting as a Committee of three judges, refused to admit the applicant’s complaint for adjudication for being inadmissible, without providing reasons (no. 1 BvR 671/08). This decision was served on the applicant’s counsel on 18 July 2009. 24. On 8 June 2010 the Federal Constitutional Court, sitting as a Committee of three judges, granted a further constitutional complaint of the applicant dealing with another set of proceedings before the Munich Regional Court and the Munich Court of Appeal (no. 1 BvR 1745/06). In this set of proceedings the courts had granted a civil injunction against the applicant, as the Ulm Regional Court and the Stuttgart Court of Appeal had done in the present case. They had ordered him, inter alia, to desist from disseminating leaflets similar to the ones now in dispute in the immediate vicinity of another gynaecological practice and to desist from publishing on his webpage the information that the doctor in question had performed or assisted in “unlawful” abortions. 25. The Federal Constitutional Court held that the civil injunction had violated the applicant’s right to freedom of expression as provided in Article 5 § 1 of the German Basic Law (Grundgesetz) because the civil courts had not sufficiently taken into account that the doctor, who had himself publicly announced on the Internet that he performed abortions in his gynaecological practice, had not been confronted with an extensive loss of social reputation as a result of the applicant’s activities. Furthermore, it underlined that the applicant had only blamed the doctor for having carried out allegedly immoral acts, but had not reproached him for having committed acts which were subject to criminal liability or forbidden by law in a wider sense. The Federal Constitutional Court moreover insisted on the fact that the applicant had contributed to a highly controversial debate of public interest and pointed out that, against the factual background of that case, the courts had not sufficiently clarified why and to what extent the special relationship between the doctor and women searching for counselling and medical treatment in the practice might have been jeopardised.