METZGER v. GERMANY
Inadmissible
Mark Villiger
The applicant, Ms Gabriele Metzger, is a German national who was born in 1957 and lives in Elztal-Dallau. She was represented before the Court by Mr H.-J. Dohmeier, a lawyer practising in Ludwigshafen. The applicant, an employed bookseller, is a member of the NeckarOdenwald County Council (Kreistag) sitting for the Green party. On 24 April 1990 she attended as a listener a session of the Billigheim Municipal Council (Gemeinderat), which arranged a public discussion and subsequent vote on the question whether an old people’s home in a residential area of the town should be converted into a foster home for mentally ill persons. A citizens’ initiative with approximately thirty members had been formed by the neighbours of that home and further sympathizers to oppose this project. The members of the initiative argued, inter alia, that neighbours, notably children, would be endangered by the prospective patients, and expressed fear that their real property might lose part of its value. During the public discussion in the Municipal Council, a member of the citizens’ initiative, Ms B., repeated these arguments. The applicant herself supported the conversion project. Following the session, the applicant was accused in two letters to the editor published in a regional newspaper, the Rhein-Neckar-Zeitung, of having commented Ms B.’s statement by saying in a rather low voice to her neighbour: “But these are Nazis, these are Nazi methods.” Furthermore, she was accused of having said to a group of people belonging to the citizens’ initiative, who were standing close to the town hall after the session: “You Nazis.” The applicant subsequently instituted civil proceedings in the Mosbach Regional Court both against the four signatories of the letters to the editor and against the editor himself, in the course of which she confirmed in two affidavits that she had never made such statements. On 29 May 1990 the Regional Court granted the applicant an interim injunction prohibiting the defendants to impart the allegation that the applicant had made the impugned statements. On 10 October 1990 the Karlsruhe Court of Appeal quashed the judgment of the Regional Court concerning the editor and dismissed the applicant’s motion for an interim injunction. Furthermore, on 14 November 1990 the Heidelberg District Court conducted a hearing in proceedings brought by the applicant’s lawyer against the Rhein-Neckar-Zeitung for damages caused by the press coverage concerning the applicant’s alleged statements. In that hearing, the applicant, who testified as a witness, again denied having made the impugned remarks. The District Court subsequently partly allowed the action. On 2 October 1990 the Mosbach District Court refused to open criminal main proceedings against the applicant for libel. Having regard to the evidence before it, it argued that it was not sufficiently likely that the applicant would be convicted. Following the public prosecutor’s appeal, the Mosbach Regional Court quashed the judgment of the District Court on 28 December 1990 and opened the main proceedings before the District Court. On 16 July 1991 it allowed the motion of 25 persons to join the proceedings as associated prosecutors (Nebenkläger). On 21 February 1992 the Mosbach District Court acquitted the applicant of two counts of libel to the detriment of 21 persons, of having made two wrong affidavits (falsche Versicherung an Eides Statt) and of having given false evidence in court (falsche uneidliche Aussage). After having heard twenty-three witnesses, the court came to the conclusion that the applicant had not made the impugned statements. The Public Prosecutor’s Office and 21 associated prosecutors appealed against the judgment. On 16 June 1993 the Mosbach Regional Court, after having heard most of the witnesses called already by the District Court, quashed the judgment of that court. It convicted the applicant of two counts of libel, of having made two wrong affidavits and of having given false evidence in court and sentenced her to a fine of 4,800 Deutschmarks (DEM) (120 daily rates of DEM 40). She was further ordered to bear the costs of the proceedings. These included the expenses of some DEM 40,000 incurred by the associated prosecutors who had appealed against the District Court’s judgment. Having assessed the evidence before it, the Regional Court was convinced that the applicant had in fact made the impugned remarks. The court further found that the citizens’ initiative comprised a small group of people whose members were determinable, so that each of these members was affected by the applicant’s remarks. The court then examined the question whether the applicant’s remark, having regard to her right to freedom of expression guaranteed by Article 5 of the Basic Law, had been justified. It stated that in discussions about vital issues of public interest, there was a presumption that a statement was permitted. Consequently, value judgments were protected under Article 5 even if they were harsh, polemic or exaggerated. However, Article 5 did not cover statements which were aimed at insulting a person in the first place, instead of contributing to the discussion on the subject-matter in dispute. The court found the applicant’s remarks to be falling within that latter category of vituperation (Schmähung) of others. By comparing the members of the citizens’ initiative to Nazis, who had sterilised and killed mentally ill people solely because of their illness, the applicant had severely insulted these persons without having established a direct link to the subject in dispute. On 25 February 1994 the Karlsruhe Court of Appeal, without giving further reasons, dismissed the applicant’s appeal on points of law against the judgment of the Regional Court as ill-founded. On 5 August 1999 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint lodged on 5 April 1994. It found that the provision underlying the applicant’s conviction, Section 185 of the Criminal Code, was formulated in a sufficiently precise way, even though not all questions concerning group libel (Kollektivbeleidigung) had already been settled. The competent criminal courts had not violated the right to freedom of expression. It could be left open whether the impugned remarks had correctly been qualified as vituperation. Even assuming that this was not the case, there was nothing to suggest that, when balancing the competing fundamental rights involved, freedom of expression prevailed. Pursuant to Section 185 of the Criminal Code, libel is punishable with imprisonment of up to one year or a fine and, if libel has been committed by an assault, with imprisonment of up to two years or a fine. There is no specific provision in the Criminal Code governing group libel, that is, the defamation of individual members of a group by a statement that only refers to the group as such. Group libel falls to be examined under the general provision of Section 185 of the Criminal Code. According to the well-established case-law of the German courts, notably the Federal Constitutional Court (see, in particular, nos. 1 BvR 1476/91, 1 BvR 1980/91, 1 BvR 102/92 and 1 BvR 221/92, decision of 10 October 1995, Decisions of the Federal Constitutional Court (BVerfGE), vol. 93, pp. 266 et seq., 299-303), it is possible to insult an individual member of a group by a collective term referring to the group as such (Beleidigung unter einer Kollektivbezeichnung), if the insult can be linked to that individual. However, the group must be clearly distinguishable by external signs from the general public, and the victims must be determinable. It is not necessary that the defendant knows every single victim of his defamation. Pursuant to Section 395 § 1 of the Code of Criminal Procedure, a victim of libel is entitled to join the criminal proceedings against the defendant as an associated prosecutor. Section 472 § 1 of the Code of Criminal Procedure provides that the defendant shall be charged the necessary expenses of an associate prosecutor, if he is convicted for an offence affecting the associate prosecutor. However, the court can wholly or partly abstain from ordering the defendant to pay these expenses, if such an order were inequitable.