ROSE v. GERMANY
Inadmissible
Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Hans-Jürgen Rose, is a German national who was born in 1958 and lives in Munich. He was represented before the Court by Mr J. Arnold and Mr W. Kaleck, lawyers practising in Pfaffenweiler and Berlin, respectively. The applicant is a military officer of the German Bundeswehr holding the rank of a Lieutenant Colonel (Oberstleutnant). On 27 May 2006 the applicant published an article in the journal “Ossietzky”. “Ossietzky” is a journal for politics, culture and economy which is published bi-weekly with a print run of 2,000 copies per issue. It is available in selected bookshops, by subscription and on the internet. The article was titled “Spirit or evil spirit of the general officers” (“Geist oder Ungeist der Generalität”) and criticised the process of coming to terms with the army's past and the German generals' role in the Iraq conflict. Extracts of the article read as follows: “It can be ruled out that the general officers, for reasons of intellectual deficiency, could not realise what was going on. (...) As stupidity can thus be ruled out, only the second alternative remains as an explanation, which is: opportunism, cowardice, unscrupulousness. (...) If the German generals had just one spark of sense of honour, justice and morals, the Inspector General and the generals of the different services would have refused to obey the Federal coalition Government's orders which breached international law and were unconstitutional.” The journal mentioned the applicant's military rank with the addition that the article exclusively contained the author's personal views. On 24 July 2006 the applicant's supervising officer imposed a disciplinary fine of 750 euros on the applicant for having published statements which were suited to debase his superior generals in a defamatory way. On 18 August 2006 the applicant's disciplinary appeal was rejected. On 12 December 2006 the Southern Military Tribunal (Truppendienstgericht Süd) rejected the applicant's further appeal. That court considered that the applicant had the right publicly to express his opinion even in an exaggerated and polemic way. However, this right had to cede if the statement infringed on another person's human dignity. The Military Tribunal found that the applicant's statements did not fall within the ambit of the right to freedom of expression (Article 5 of the Basic Law, see “relevant domestic law”, below), because they infringed on the concerned generals' human dignity. It followed that the applicant had disrespected his duties to exercise self-restraint, to respect the dignity, the honour and the rights of his comrades, to maintain discipline and to respect his superiors' rank even when off duty (Articles 10 §§ 1 and 6, 12 (2) and 17 § 1 (2) of the Military Code of Justice (Soldatengesetz), see “relevant domestic law”, below). On 28 April 2007 the Federal Constitutional Court refused to accept the applicant's constitutional complaint for adjudication for lack of prospect of success. Contrary to the Military Tribunal's finding, the Federal Constitutional Court did not consider that the impugned statements infringed on the concerned generals' human dignity; neither did they amount to abusive insult (Schmähkritik). The right to freedom of expression protected value judgment and statements of facts as a prerequisite to form one's opinion. The statements made by the applicant were an expression of opinion which clearly fell within the ambit of that right. It followed that the courts had to balance the competing interests in the light of the aim pursued by the relevant provisions of the Military Code of Justice, which was to preserve the proper functioning of the Bundeswehr. This aim had to be preserved by the military officers both in their professional and in their private conduct. The functioning of the Bundeswehr could be jeopardised by private statements which were suited to demoralise and undermine discipline within the army. Under these circumstances, the right to freedom of expression had to cede. According to the Federal Constitutional Court, the Military Tribunal had respected these principles when applying the relevant provisions of the Military Code of Justice. The Military Tribunal had assumed that the applicant had violated his duty to exercise self-restraint with regard to the impugned statements. This could lead to undermining the applicant's own authority and put into question his loyalty. The applicant's statements, in which he denied the generals any sense of honour, justice and morals, were suited to debase the generals and to expose them to derision. This could jeopardise military cooperation, mutual trust and the readiness to stand by one another. Furthermore, the applicant had breached his legal obligation to preserve his superiors' authority, as the terms employed exceeded any form of rational criticism. To preserve the superiors' authority was necessary for the Bundeswehr's internal order. The Federal Constitutional Court considered that this weighing of interests was not objectionable from a constitutional point of view. There was no doubt that the manner the applicant chose for expressing his opinion, in particular the personal attacks, was suited severely to disturb the Bundeswehr's functioning. It did not violate the right to freedom of expression if such behaviour was not permitted, but was treated as a disciplinary offence. This decision was served on the applicant's counsel on 10 May 2007. Article 5 of the German Basic Law (Grundgesetz), insofar as relevant, reads as follows: “(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. (2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour. ...)” Article 17a of the Basic Law provides: Article 17a [Restriction of certain basic rights by laws respecting defence and alternative service] “(1) Laws respecting military and alternative service may provide that the basic right of members of the Armed Forces and of alternative service freely to express and disseminate their opinions in speech, writing, and pictures (first clause of paragraph (1) of Article 5)... be restricted during their period of military or alternative service.” The relevant provisions of the Military Code of Justice (Soldatengesetz) read as follows: Article 10 (duties of a superior) “(1) The superior shall serve as an example both in his actions and in the performance of his duties. (...) (6) When making statements on or off duty, officers have the duty to exercise self-restraint in order to maintain confidence in their position as a superior.” Article 12 (camaraderie) “The Bundeswehr's unity considerably depends on camaraderie. It obliges all soldiers to respect their comrades' dignity, honour and rights and to stand by them in case of danger and need. This includes mutual respect and the acceptance of other opinions.” Article 17 (behaviour on and off duty) “(1) The soldier has the duty to maintain discipline and to respect his superior's position both on and off duty. (2) His conduct has to comply with the Bundeswehr's reputation and with the respect and confidence necessary for the service as a soldier. When off duty, the soldier has to behave outside the army accommodations and premises in a way that does not seriously impair the Bundeswehr's reputation and the confidence which is necessary for his official standing.” Article 23 (disciplinary offence) “(1) A soldier who intentionally breaches his duties commits a disciplinary offence.”