CASE OF ANNEN v. GERMANY (No. 4)
(Application no. 9765/10)
20 September 2018
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Annen v. Germany (no. 4),
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 28 August 2018,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 9765/10) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a German national, Mr Klaus Günter Annen ("the applicant"), on 8 February 2010.
2. The applicant was represented by Mr L. Eck, a lawyer practising in Passau. The German Government ("the Government") were represented by their Agents, Mr H.-J. Behrens and Ms K. Behr, of the Federal Ministry of Justice and Consumer Protection.
3. The applicant alleged that an injunction ordering him to desist from addressing passers-by in the immediate vicinity of a medical practice and from labelling the abortions performed by the respective doctor unlawful had violated his freedom of expression under Article 10 of the Convention.
4. On 3 January 2017 the complaint concerning Article 10 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1951 and lives in Weinheim. He is a campaigner against abortion and operates an anti-abortion website.
6. On 12 and 13 April 2005 the applicant distributed leaflets in the vicinity of the medical practice of Dr St., who performed abortions there. The leaflets stated, inter alia , that the abortions performed by Dr St. in his practice, for which he gave the address, were unlawful according to the case-law of the Federal Constitutional Court. In addition the leaflet contained the following statements:
"According to international criminal law: Aggravated murder is the intentional 'bringing-to-death' of an innocent human being!" ( Sinngemӓβ aus den internationalen Strafgesetzen: Mord ist das vorsӓtzliche "Zu-Tode-Bringen" eines unschuldigen Menschen! )
"The murder of human beings in Auschwitz was unlawful, but the morally degraded NS State allowed the murder of innocent people and did not make it subject to criminal liability." ( Die Ermordung der Menschen in Auschwitz war rechtswidrig, aber der moralisch verkommene NS-Staat hatte den Mord an den unschuldigen Menschen erlaubt und nicht unter Strafe gestellt. )
7. The applicant also addressed passers-by and the physician's presumed patients and attempted to engage with them in conversations about abortion.
8. Dr St. lodged an application for a civil injunction against the applicant and on 25 October 2005 the Mannheim Regional Court granted the requested injunction. The court ordered the applicant to desist from speaking to passers-by in the immediate vicinity of the medical practice and labelling the abortions performed by the plaintiff unlawful with the objective of irritating female patients and preventing them from visiting Dr St.'s practice.
9. On 24 February 2007 the Karlsruhe Court of Appeal upheld the decision and slightly modified the wording specifying the geographical area concerned by the injunction. It also refused to grant leave to appeal on points of law.
10. The Regional Court as well as the Court of Appeal both referred to a previous decision of the Federal Court of Justice in which it had confirmed a civil injunction against similar conduct by the applicant (see paragraph 13 below). The courts held that in the case at issue there were no factual or legal differences justifying deviating from the case-law of the Federal Court of Justice. In so far that the doctor in the present case was slightly more well-known than the doctor in the original case, the Court of Appeal held that this was of minor relevance. The fact that Dr St. had appeared as an expert before the German Parliament many years previously did not have any substantial effects on Dr St's public profile at that time. Moreover, the involvement of Dr St. in different legal disputes was irrelevant, as trying to enforce his rights in the appropriate legal procedure could not redound to Dr St.'s disadvantage. In sum, the applicant had vilified the non-criminal professional activities of Dr St. by implying that he committed criminal acts and interfered with the relationship of trust between doctor and patient, which deserved special protection against the interventions of others. The applicant had therefore severely interfered with Dr St.'s personality rights. This interference was not justified by the applicant's freedom of expression in view of the massive "pillory effect" the applicant had created by singling out the plaintiff and criticising him in a harsh way in the immediate vicinity of his practice.
11. On 29 May 2007 the Federal Court of Justice refused a request by the applicant for legal aid on the grounds that the applicant's intended appeal on points of law lacked sufficient prospect of success. On 20 July 2009 the Federal Constitutional Court refused to admit the applicant's complaint for adjudication for being inadmissible, without providing reasons (no. 1 BvR 1670/07).
II. RELEVANT DOMESTIC LAW AND PRACTICE
12. The relevant provisions of the German Basic Law ( Grundgesetz ), Criminal Code ( Strafgesetzbuch ) and Civil Code (Bürgerliches Gesetzbuch) have been set out in the Court's judgment in Annen (no. 2) (no. 3682/10, §§ 13 - 18, 20 September 2018).
13. In addition, on 7 December 2004 the Federal Court of Justice confirmed an injunction, ordering the applicant to desist from addressing patients and passers-by in a specified area in front of a medical practice and from pointing out that in the practice abortions were performed (no. VI ZR 308/03). It pointed out that the doctor's activities were legal and enjoyed protection under his constitutional right to freedom to exercise his profession. The court emphasised the important role which the legislature had attributed to gynaecologists both in the protection of unborn life and in the protection of the health of the women concerned. It was essential that the relationship of trust between the doctor and his patients was not disturbed by the intrusion of external parties. The applicant's actions had adversely affected the plaintiff's activities in an unacceptable way and had singled him out without any reason. Therefore, the court concluded that, under the circumstances of this particular case, the physician's personality rights prevailed over the applicant's freedom of expression. A constitutional complaint against the judgment of the Federal Court of Justice was not admitted for adjudication.
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
14. The applicant complained that the injunction ordering him to desist from addressing passers-by in the immediate vicinity of Dr St.'s medical practice and from labelling the abortions performed by the plaintiff unlawful had violated his freedom of expression as provided in Article 10 of the Convention, which reads, in so far as relevant, as follows:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ..."
15. The Court notes that this complaint is neither inadmissible for non-exhaustion of domestic remedies (see Annen v. Germany , no. 3690/10, §§ 37-40, 26 November 2015) nor manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties' submissions
16. The applicant argued that the desist order had interfered with his freedom of expression without being justified by the protection of the personality rights of Dr St. He submitted that his distribution of leaflets and the intended conversations with passers-by had contributed to a public debate of great importance. His actions had not personally attacked Dr St., but had criticised the legal situation in Germany concerning abortions, which had been performed by a doctor within twelve weeks of conception and following obligatory counseling. Those abortions had been considered to be unlawful, but had been exempt from criminal liability. Moreover, it had been consistent with the case-law of the Federal Constitutional Court to call abortions, as performed by Dr St., unlawful. The applicant further submitted that the domestic courts had not sufficiently taken into account that Dr St. had not been unknown to the public - as the doctor had been in the earlier case decided by the Federal Court of Justice - but had appeared as an expert before the German Parliament and had been involved in several legal disputes in the context of the debate about abortion.
17. The Government submitted that the interference with the applicant's freedom of expression, which had been based on Article 823 § 1 in conjunction with Article 1004 § 1 of the Civil Code, had been necessary to safeguard Dr St.'s personality rights, as enshrined in Article 8 of the Convention. By calling abortions unlawful the applicant had created the false impression that Dr St. had been operating outside of the legal framework in performing such procedures. Unlike the leaflet in the case of Annen (cited above) the leaflets in the present case did not point out that abortions are permitted in Germany under the terms of Article 218a of the Criminal Code and therefore not subject to criminal liability. Moreover, given the applicant's goal of forced "pavement counselling", the applicant had severely disturbed the relationship of trust between doctor and patient. The Court had already rejected an earlier application by the same applicant against a desist order against similar conduct (see Annen v. Germany (dec.), nos. 2373/07 2396/07, 30 March 2010). In the present case, the domestic courts had relied on the judgment of the Federal Court of Justice, which had been the subject matter of the earlier inadmissibility decision of the Court, and concluded that the circumstances had been comparable and had not warranted deviating from the existing case-law. When coming to that conclusion the domestic courts had paid attention to the fact that Dr St. had taken a public position in the abortion debate.
2. The Court's assessment
18. At the outset, the Court considers - and this is not in dispute between the parties - that the injunction interfered with the applicant's freedom of expression, had a legal basis and pursued the legitimate aim of protecting the rights and reputation of Dr St. as well as the rights of patients to medical counseling. It therefore remains to be determined whether the interference was "necessary in a democratic society" and whether the balancing exercise undertaken by the domestic courts was in conformity with the criteria laid down in the Court's case-law.
19. The fundamental principles concerning the question of whether an interference with freedom of expression is "necessary in a democratic society" are well established in the Court's case-law and have recently been summarised as follows (see Delfi AS v. Estonia [GC], no. 64569/09, § 131, 16 June 2015 with further references):
"(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no 'democratic society'. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...
(ii) The adjective 'necessary', within the meaning of Article 10 § 2, implies the existence of a 'pressing social need'. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a 'restriction' is reconcilable with freedom of expression as protected by Article 10.
(iii) The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was 'proportionate to the legitimate aim pursued' and whether the reasons adduced by the national authorities to justify it are 'relevant and sufficient'... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ..."
20. The Court further reiterates that the right to protection of reputation is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France , no. 64915/01, § 70, ECHR 2004-VI; Pfeifer v. Austria , no. 12556/03, § 35, 15 November 2007; and Polanco Torres and Movilla Polanco v. Spain , no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person's reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway , no. 28070/06, § 64, 9 April 2009; Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; and Delfi AS , cited above, § 137). In cases that concerned allegations of criminal conduct the Court also took into account that under Article 6 § 2 of the Convention individuals have a right to be presumed innocent of any criminal offence until proved guilty (see, among other authorities, Worm v. Austria , 29 August 1997, § 50, Reports of Judgments and Decisions 1997 V, and Du Roy and Malaurie v. France , no. 34000/96, § 34, ECHR 2000-X).
21. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the "protection of the reputation or rights of others", the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France , no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom , no. 39401/04, § 142, 18 January 2011; Axel Springer AG , cited above, § 84; and Delfi AS , cited above, § 138).
22. Turning to the circumstances of the present case, the Court observes that the domestic courts justified the injunction by, in essence, three points that interfered with the doctor's private and professional life and, taken together, reached a severity that Dr St. should not have had to endure. Firstly the applicant had vilified Dr St. by implying that he had committed criminal acts; secondly he had singled out Dr St. from all doctors that had performed abortions and had thereby created a "pillory effect"; and lastly the applicant had interfered with the particularly protected relationship of trust between Dr St. and his patients.
"... German law, under Article 218a of the Criminal Code, draws a fine line between abortions which are considered to be "unlawful", but exempt from criminal liability, and those abortions which are considered as justified and thus "lawful". It follows that the applicant's statement that the physician performed - among others - "unlawful abortions" was correct from a strictly judicial point of view. However, having regard to the fact that the applicant primarily addressed his statement to laypersons, the Court accepts that the domestic courts also took into account the point of view of a reasonable man with ordinary susceptibility, who would assume that the "unlawful" abortions were forbidden in a stricter sense and subject to criminal liability."
This conclusion is not called into question by the Court's later judgment in the case of Annen (cited above), since in that case the leaflet in question provided sufficiently clear further explanation, according to which abortions were not subject to criminal liability. The Court therefore agrees with the conclusion of the domestic courts regarding the first aspect.
24. Concerning the issue of singling out Dr St. the Court notes that the applicant submitted that the former had been known to the public, had appeared as an expert before the German Parliament and had been involved in several legal disputes in the context of the debate about abortion. However, the Court also takes note of the fact that the domestic courts considered these points and concluded that they were only of minor relevance. The appearance before the German Parliament had been many years previous to that time and therefore did not have any substantial effects on Dr St.'s public profile. The involvement of Dr St. in different legal disputes was irrelevant, as trying to enforce his rights in the appropriate legal procedure could not redound to Dr St.'s disadvantage.
25. The Court would reiterate that a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures, and that a private individual unknown to the public may claim particular protection of his or her right to private life (see Axel Springer AG v. Germany [GC], no. 39954/08, § 91, 7 February 2012, with further references). Nonetheless, having regard to their direct and continuous contact with their societies, it is primarily for the domestic courts to assess how well known a person is, especially where that person is mainly known at national level (ibid., § 98). In conclusion, the Court finds the domestic courts' reasoning that Dr St.'s prior conduct had only minor relevance for the present assessment acceptable and sees no reason to call the courts' conclusions concerning how well known Dr St. was into question.
26. Turning to the issue of the applicant's interfering with the relationship of trust between Dr St. and his patients, the Court reiterates that it has already accepted that a civil injunction was in particular based on the fact that the applicant approached the doctor's patients in the direct vicinity of his medical practice and thus seriously disturbed the exercise of his professional activities (see Annen v. Germany (dec.), cited above). The Court observes that such "pavement counselling" by the applicant, which the Regional Court described as "running the gauntlet", did not only interfere with the Dr St.'s legal professional activities but also rendered it more difficult for patients to seek medical assistance. The Court therefore sees no reason to deviate from its previous findings in the present case.
27. The foregoing considerations are sufficient to enable the Court to conclude that the reasons advanced for the interference complained of were "relevant" and "sufficient".
28. Furthermore, the Court observes that the applicant was not criminally convicted for slander or ordered to pay damages (contrast Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 93, ECHR 2004 XI), but only prevented from addressing passers-by in the immediate vicinity of Dr St.'s medical practice and from labelling the abortions performed by the plaintiff unlawful. Consequently, the injunction was limited geographically and in scope. In regard to the latter the Court notes that the applicant was not per se prohibited from campaigning against abortion, criticising doctors that conducted abortions or distributing leaflets. In sum, the Court concludes that the level of interference with the applicant's freedom of expression was relatively low and "proportionate to the legitimate aims pursued".
29. Lastly, concerning the thoroughness of assessing the conflicting interests by the domestic courts, the Court observes that they, in essence, referred to the previous judgment of the Federal Court (see paragraph 13 above) and assessed whether the present case required deviating from the existing case-law. In cases where the balancing exercise between the right to freedom of expression and personality rights had already been thoroughly undertaken in a comparable case, the Court sees no problem with referring to the respective judgment and to merely consider the factual and legal differences of the cases. The Court therefore considers that the domestic courts thoroughly assessed the conflicting interests.
30. There has accordingly been no violation of Article 10 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning Article 10 admissible;
2. Holds that there has been no violation of Article 10 of the Convention.
Done in English, and notified in writing on 20 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.