European Court of Human Rights

Information Note on the Court’s case-law No. 173

April 2014

Brosa v. Germany - 5709/09

Judgment 17.4.2014 [Section V] See: [2014] ECHR 432

Article 10

Article 10-1

Freedom of expression

Injunction restraining distribution of leaflet alleging that candidate in local elections was “covering” for neo-Nazi organisation: violation

Facts - In the run-up to local elections in 2005 the applicant sought to circulate a leaflet alleging that neo-Nazi organisations were active in the town and calling on voters not to vote for one of the candidates for mayor, F.G., as he was providing “cover” for an association that was “particularly dangerous”. In support of the latter allegation, reference was made to a letter to the editor of a local newspaper in which F.G. had contended that the association in question had no extreme right-wing tendencies. F.G. obtained an injunction restraining the applicant from distributing the leaflet and making other assertions of fact which might depict him as a supporter of neo-Nazi organisations after a district court found that the statement in the leaflet had infringed F.G.’s personality rights and that the applicant had failed to provide sufficient evidence to support his allegations.

Law - Article 10: The sole issue before the Court was whether the interference had been necessary in a democratic society. The leaflet had been distributed in the run-up to mayoral elections and set out the applicant’s view of a candidate’s suitability for office. Since it was of a political nature and concerned a question of public interest, there had been little scope for restrictions on the applicant’s freedom of expression.

As regards the applicant’s statement that the association in question was a particularly dangerous neo-Nazi organisation, the Court was unable to accept the domestic courts’ view that this was a mere allegation of fact. The domestic courts had emphasised that the domestic intelligence service was continuing to monitor the association on suspicion of extremist tendencies, which indicated that there was an ongoing debate on the association’s political orientation. The term “neo-Nazi” was capable of evoking in those who read it different notions as to its content and significance and so carried a clear element of value judgment which was not fully susceptible to proof. While the domestic courts had found, in substance, that the opinion expressed by the applicant was not devoid of a factual basis, they had nevertheless required “compelling proof” and thus applied a degree of precision that came close to that usually required for establishing the well-foundedness of a criminal charge. That constituted a disproportionally high degree of factual proof.

As to the applicant’s statement that F.G. had “covered” for the association, the Court could not endorse the domestic courts’ restrictive interpretation of that term as indicating that F.G. had knowledge of the association’s neo-Nazism and endorsed it. The domestic courts had seen the statement as an allegation of fact for which no sufficient factual basis existed when in fact the term “covered” referred to the letter F.G. had written to the editor in response to the applicant’s article. The letter also formed part of an ongoing debate and, in the Court’s view, had constituted a sufficient factual basis for the applicant’s statement.

Accordingly, by considering the impugned statement to be mere allegations of fact requiring a disproportionately high degree of proof, the domestic courts had failed to strike a fair balance between the relevant interests and to establish a pressing social need to put the protection of F.G.’s personality rights above the applicant’s right to freedom of expression.

Conclusion: violation (unanimously).

Article 41: EUR 3,000 in respect of non-pecuniary damage.

 

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This summary by the Registry does not bind the Court.

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