ANNEN (II) v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Klaus Günter Annen, is a German national who was born in 1951 and lives in Weinheim. He was represented before the Court by Mr L. Lennartz, a lawyer practising in Euskirchen. On 16 October 2001 the applicant distributed pamphlets to passers-by near gynaecologist Dr K.’s medical practice. The front page contained inter alia the following text: “Stop unlawful abortions in Dr. K.’s medical practice” („Stoppt rechtswidrige Abtreibungen in der Praxis Dr. K.“) indicating the physician’s full name and address. It further contained the following sentences: “Did you know that unlawful abortions are performed in H. in Dr. K.’s practice?” („Wussten Sie schon, dass in H. in der Praxis von Dr. K. rechtswidrige Abtreibungen durchgeführt werden?”) The verso contained the sentence: “Please support our struggle against the unpunished killing of unborn children” (“Bitte, helfen sie uns im Kampf gegen die straflose Tötung ungeborener Kinder.”) Dr K., who performed abortions in accordance with the legal conditions laid down in Article 218a §§ 1 and 2 of the Criminal Code (see relevant domestic law, below), raised an action for an injunction. He alleged that the applicant’s statement was incorrect, as he performed abortions exclusively within the legal framework. On 19 October 2001 the Heilbronn Regional Court (Landgericht), by way of an interim injunction, ordered the applicant to desist from further asserting or disseminating the allegation that Dr. K. performed unlawful abortions (rechtswidrige Abtreibungen). This interim injunction was confirmed by the Stuttgart Court of Appeal (Oberlandesgericht) on 8 May 2002. The applicant alleged that the impugned statement was correct. Relying on the Federal Constitutional Court’s case-law, he pointed out that abortions which were performed under Article 218a § 1 following obligatory counselling, but without medical indication as required by Article 218a § 2, where unjustified and thus unlawful. He further asserted that his statement was covered by his right to freedom of expression. On 12 March 2003 the Heilbronn Regional Court confirmed the injunction in the main proceedings. Basing its decision on Article 823 in conjunction with Article 1004 of the Civil Code, that court considered that the applicant’s statement, seen from the point of view of an unbiased and knowledgeable public, contained the allegation that the abortions were performed outside the legal conditions of Article 218a of the Criminal Code and were thus subject to criminal prosecution. It could not be expected from the average reader 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. Seen from a layman’s point of view, only those acts of abortions were considered “unlawful” which did not comply with either of the prerequisites laid down in Article 218a of the Criminal Code. The applicant could not rely on the allegation that the impugned statement was true. Having regard to the fact that the pamphlet was not addressed to lawyers, but to laypersons, it was not decisive whether the statement was true from a strictly judicial point of view. The Regional Court did not find it necessary to establish whether the impugned statement had to be regarded as a statement of facts or whether it also contained a value judgment. In any event, the physician’s interest in the protection of his personality rights prevailed over the applicant’s right to freedom of expression. The Regional Court conceded that the impugned statement could be regarded as a contribution to the debate on questions of public interest which merited special protection under the right to freedom of expression. However, in the present case the infringement on the physician’s personality rights was so severe that it prevailed over the applicant’s right to freedom of expression. The statement did not only concern his professional, but also his personal reputation. On the other hand, the applicant could have easily clarified that the abortions performed by the physician were not subject to criminal liability. The Regional Court finally noted that the physician, who had not actively participated in the public debate on abortion, had not given him any reason to attack him as a private person. On 18 September 2002 the Stuttgart Court of Appeal rejected the applicant’s appeal. That court confirmed the Regional Court’s finding that the applicant’s statement, seen from the point of view of an “average reader”, contained the accusation that the doctor performed abortions without respecting the legal provisions. Further to the Regional Court’s findings, the Court of Appeal considered that the applicant’s statements were suited adversely to affect the physician’s professional activities by deterring potential clients. On 1 April 2003 the Federal Court of Justice (Bundesgerichtshof) refused to allow the applicant’s appeal. That court did not consider it necessary to establish whether the interpretation given to the applicant’s statement by the lower courts had been correct. In any event, the applicant had singled out the physician, who had been performing his professional activities within the legal framework, and had produced a “pillory effect” (“Prangerwirkung”). The entailing violation of the physician’s personality rights was so severe that the applicant’s right to freedom of expression had to cede. On 24 May 2006 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s complaint for adjudication. That court considered that the interpretation attributed to the applicant’s statement by the District Court and the Court of Appeal was not necessarily the only possible one. It noted that the Karlsruhe Court of Appeal had considered in a similar case that the impugned statement did not contain the allegation that the abortions performed were subject to criminal liability. Even accepting the statement’s ambiguity, the Constitutional Court considered that the interpretation given by the domestic courts was to be taken into account. The relevant passages read as follows: “In contrast to the examination of penal or civil law sanctions for a statement which has already been made, when a claim for an injunction to desist from uttering an ambiguous statement in the future is examined, the court has to chose among several possible interpretations the one which violates [the plaintiff’s] personality rights or, if this is the case with several interpretations, the one which more seriously violates personality rights. In the present case, this is the interpretation given by the civil courts, and not the interpretation favoured by the complainant with reference to the Karlsruhe Court of Appeal’s decision, according to which the statement referred to the distinction between criminal justification and exemption from criminal liability of different kinds of abortions under Article 218a of the Criminal Code. The complainant’s right to freedom of expression is not violated by the request to clarify the content of his statement with regard to further dissemination in order to avoid a conviction to desist from uttering the statement and in the interest of the plaintiff’s personality rights. There are no indications that the applicant could not reasonably be expected to clarify that the abortions performed in Dr K.’s practice are not subject to criminal liability by using unambiguous words also on the pamphlet’s front page.” The Federal Constitutional Court further confirmed the civil court’s finding that the allegation that the physician performed unlawful and thus punishable abortions was untrue, as the physician undisputedly performed abortions within the legal framework. The court further considered that the civil courts had correctly weighed the conflicting interests, that is to say the applicant’s right to freedom of expression and the physician’s personality rights. With regard to the scope of the applicant’s right to freedom of expression, the Constitutional Court found as follows: “The impugned decisions cannot be understood as preventing the complainant from publicly militating against the exemption from criminal liability and against the performance of abortions and from employing polemic or exaggerated terms. The present case concerned statements which were directed against one single person and infringed that person’s personality rights. It follows that that the physician’s interests, insofar as they were in conflict with the right to freedom of expression, had to be taken into account.” The Federal Constitutional Court further considered that there was no objection from a constitutional point of view against taking into account a so-called “pillory effect” derived from singling out one person, as long as the courts adequately weighed the conflicting interests. The Federal Constitutional Court observed that the plaintiff had been identified by his full name and address as a person performing unlawful acts. This constituted a serious violation of his personality rights. Furthermore, the plaintiff had not given the applicant any reason to single him out. This decision was served on the applicant’s counsel on 22 June 2006. On 24 April 2002 the applicant walked up and down the street in front of Dr. K.’s medical practice, carrying a poster with the text “abortion kills unborn children” (“Abtreibung tötet ungeborene Kinder”) on the front and “You shall not kill. Also applies to doctors” (“Du sollst nicht töten. Gilt auch für Ärzte”) on the back. He also addressed passers-by and the physician’s presumed patients. Dr. K. lodged a request for an injunction with the Heilbronn Regional Court, alleging that the applicant’s behaviour unsettled and deterred his patients and thus seriously disturbed the proper functioning of his medical practice. On 10 April 2003 the Heilbronn Regional Court, basing its decision on Article 823 in conjunction with Article 1004 of the Civil Code, ordered the applicant to desist from addressing patients and passers-by in a specified area in front of Dr. K.’s medical practice and from pointing out that Dr. K. performed abortions. The Regional Court considered that the applicant’s behaviours disturbed the physician in the performance of his professional activities, which were protected as part of his personality rights. Insofar as the applicant relied on his right to freedom of expression, a fair balance had to be struck between the conflicting interests. The Regional Court observed that the applicant, by addressing presumed patients in the area of the physician’s practice and by drawing public attention to the latter’s activities, considerably disturbed the very sensitive relationship between the physician and his patients. This could not only lead to economical disadvantages, but also damaged the physician’s reputation. The Regional Court further considered that the applicant’s right to freedom of expression entitled him publicly to criticise physicians performing abortions. However, the means the applicant employed in order to express his criticism in the direct vicinity of this specific physician’s premises exceeded the acceptable limit. The financial losses the physician had to envisage as a result of the applicant’s behaviour were disproportionate. On 17 September 2003 the Stuttgart Court of Appeal rejected the applicant’s appeal. The Court of Appeal confirmed that the applicant’s behaviour was likely to deter the physician’s current and potential future patients. While conceding that the applicant had the right publicly to criticise the performance of abortions, the means employed by him had been disproportionate. The Court of Appeal further considered that Dr. K., who had not called for any public attention, had been singled out by the applicant in order to exemplify a general problem, thus producing a “pillory effect”. The Court of Appeal further considered that the applicant had acted with the intention to disturb the physician’s relationship to his patients and to cause financial damage. On 30 March 2004 the Federal Court of Justice granted the applicant leave to lodge an appeal on points of law. On 7 December 2004 the Federal Court of Justice dismissed the applicant’s appeal on points of law. That court confirmed the Court of Appeal’s finding that, under the circumstances of this particular case, the physician’s personality rights prevailed over the applicant’s right to freedom of expression. Further to the Court of Appeal’s considerations, the Federal Court of Justice pointed out that the physician’s activities were lawful and enjoyed protection under the constitutional right to freedom to exercise his profession. In this context, the court emphasised the important role which the legislator had attributed to the gynaecologists both in the protection of the unborn life and in the protection of the health of the women concerned. It was essential that the relationship of trust between the physician and his patients was not disturbed by the intrusion of external parties. The applicant’s actions adversely affected the plaintiff’s activities in an unacceptable way. On 24 May 2006 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s constitutional complaint for adjudication as being ill-founded, as it did not find fault with the Federal Court of Justice’s decision. This decision was served on the applicant’s counsel on 22 June 2006. The relevant provisions of the criminal code read as follows: Section 218 Abortion “(1) Whosoever terminates a pregnancy shall be liable to imprisonment of not more than three years or a fine. Acts the effects of which occur before the conclusion of the nidation shall not be deemed to be an abortion within the meaning of this law. (2) In especially serious cases the penalty shall be imprisonment from six months to five years. An especially serious case typically occurs if the offender acts against the will of the pregnant woman; or through gross negligence causes a risk of death or serious injury to the pregnant woman. (3) If the act is committed by the pregnant woman the penalty shall be imprisonment of not more than one year or a fine. (4) The attempt shall be punishable. The pregnant woman shall not be liable for attempt.” Section 218a Exception to liability for abortion “(1) The offence under section 218 shall not be deemed fulfilled if the pregnant woman requests the termination of the pregnancy and demonstrates to the physician by certificate pursuant to section 219 (2) 2nd sentence that she obtained counselling at least three days before the operation; the termination of the pregnancy is performed by a physician; and not more than twelve weeks have elapsed since conception. (2) The termination of pregnancy performed by a physician with the consent of the pregnant woman shall not be unlawful if, considering the present and future living conditions of the pregnant woman, the termination of the pregnancy is medically necessary to avert a danger to the life or the danger of grave injury to the physical or mental health of the pregnant woman and if the danger cannot reasonably be averted in another way from her point of view.” The Federal Constitutional Court, in its leading judgment (BVerfGE 88, 203), accepted in the end abortions being performed by physicians after the pregnant woman having obtained counsel by a third person, and developed a rather singular approach by qualifying certain acts of abortion as unlawful, but not punishable. Abortions which are performed without the establishment of a medical indication must not be treated as being justified (not unlawful) (Schwangerschaftsabbrüche, die ohne Feststellung einer Indikation nach der Beratungsregelung vorgenommen werden, dürfen nicht für gerechtfertigt (nicht rechtswidrig) erklärt werden). However, abortions performed by a physician within twelve weeks after conception and following obligatory counselling are considered to be unlawful, but are exempt from criminal liability.