IMMLER v. GERMANY
Inadmissible
Matti Pellonpää
The applicant, born in 1932, is an Austrian national of German origin and resident in Lochau, Austria. In 1993 criminal proceedings were instituted against the applicant on the suspicion of insult. In these proceedings defence counsel assisted him. On 16 March 1994, following a hearing, the Lindau (Bodensee) District Court (Amtsgericht) convicted the applicant of insult and of having caused false suspicion, and imposed a fine of 80 daily rates of 80 German marks (DEM). According to section 185 of the Penal Code (Strafgesetzbuch), insult (Beleidigung) is an offence punishable with a maximum of one year's imprisonment or a fine. The District Court found that in the course of a dispute between the applicant and the foreign couple Mr and Mrs I. about their alleged unlawful parking, he had stated that “they came from the Balkan and did not know about German law”, and he had called them “Kanaken”, a term used in German language to disparage foreigners. Moreover, in the investigation proceedings instituted at Mr and Mrs I.’s request, he laid information against them pretending that they had insulted him in the course of the above dispute, that Mr I. had threatened him with force and that they had committed a parking offence. Subsequently, the applicant had also laid information against a witness of the above dispute, Mr S., pretending that this person had also insulted him. The District Court established these facts on the basis of the applicant’s statements as well as on the evidence given by Mr and Mrs I., Mr S., Mrs H., the applicant’s life companion, and Mr P., a customs officer having witnessed the dispute in the course of an observation of the place. It also had before it photographs of the place in question. On 11 November 1994, following oral hearings, the Kempten Regional Court (Land-gericht), upon the applicant’s appeal, reduced the fine to 80 daily rates of DEM 40 and dismissed the remainder of the appeal. The Regional Court, on the basis of its own taking of evidence, confirmed in essence the establishment of facts by the District Court. Thus the applicant had started a dispute with Mr and Mrs I. about their allegedly wrong parking, stating that “they were not on the Balkan and had to comply with German traffic regulations” and, in his annoyance, he had called them “Kanaken”. The court found that Mrs H.’s statements were refuted by the evidence given by Mr P., a neutral witness who had credibly explained that as a dog-fancier he would have seen Mrs H. and her dog. The Regional Court, having regard to the material before it, including a site plan and photographs, also considered that an inspection of the place of the events had not been necessary. Furthermore, the Regional Court rejected the applicant’s arguments that the expression “Kanaken” was a neutral denomination of South Sea Islanders, considering that in German language this expression was unfortunately used, in a disparaging manner, in relation to foreigners. On 28 March 1995 the Bavarian Court of Appeal (Oberstes Landesgericht) dismissed the applicant’s appeal on points of law. On 3 November 1995 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional appeal. The decision was served on 14 November 1995.