In the case of PETA Deutschland v. Germany,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Dean Spielmann, President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Ann Power-Forde,
Angelika Nußberger,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 18 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
43481/09) 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 PETA Deutschland (“the applicant”), an
association based in Germany, on 12 August 2009.
The applicant association was represented by Mr K.
Leondarakis, a lawyer practising in Göttingen. The German Government (“the
Government”) were represented by their Agent, Mr H.-J. Behrens, of the Federal
Ministry of Justice.
The applicant association complained, in
particular, about a violation of its right to freedom of expression.
On 14 November 2011 the application was
communicated to the Government.
The parties replied in writing to each other’s
observations. In addition, third-party comments were received from Mr S. Korn
and the Central Council of Jews in Germany, both represented by Mr N. Venn,
counsel, who had been given leave by the President to intervene in the written
procedure (Article 36 § 2 of the Convention and Rule 44 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant association is the German branch of
the animal rights organisation PETA (People for the Ethical Treatment of
Animals). It pursues, inter alia, the aims of preventing animal
suffering and of encouraging the public to abstain from using animal products.
In March 2004 the applicant association planned
to start an advertising campaign under the head “The Holocaust on your plate”.
The intended campaign, which had been carried out in a similar way in the
United States of America, consisted of a number of posters, each of which bore
a photograph of concentration camp inmates along with a picture of animals kept
in mass stocks, accompanied by a short text. One of the posters showed a
photograph of emaciated, naked concentration camp inmates alongside a
photograph of starving cattle under the heading “walking skeletons”. Other
posters showed a photograph of piled up human dead bodies alongside a photograph
of a pile of slaughtered pigs under the heading “final humiliation” and of rows
of inmates lying on stock beds alongside rows of chicken in laying batteries
under the heading “if animals are concerned, everybody becomes a Nazi”. Another
poster depicting a starving, naked male inmate alongside a starving cattle bore
the title “The Holocaust on your plate” and the text “Between 1938 and 1945, 12
million human beings were killed in the Holocaust. As many animals are killed
every hour in Europe for the purpose of human consumption”.
In March 2004, three individual persons, P.S., C.
K. and S. Korn, filed a request with the Berlin Regional Court to be granted an
injunction ordering the applicant association to desist from publishing or from
allowing the publication of seven specified posters via the internet, in a
public exhibition or in any other form. The plaintiffs were at the time the
president and the two vice-presidents of the Central Jewish Council in Germany. All of them had survived the Holocaust when they were children; C.K. lost her
family through the Holocaust. They submitted that the intended campaign was
offensive and violated their human dignity as well as the personality rights of
C. K.’s dead family members.
On 18 March 2004 the Berlin Regional Court
granted the injunction. By judgment of 22 April 2004, that same court confirmed
the interim injunction. The court considered that the plaintiffs had a claim to
be granted injunctive relief under section 823 §§ 1 and 2 in conjunction with
section 1004 of the Civil Code, sections 185 et seq. of the Criminal
Code and Article 1 §§ 1 and 2 of the German Basic Law (see relevant domestic
law, below). According to the Regional Court, the plaintiffs were concerned by
the impugned statements in their capacity as former victims of the Holocaust.
The Regional Court further considered that the
impugned representations constituted expressions of opinion and were thus
protected under Article 5 of the Basic Law. This right protected expressions of
opinion even if they were formulated in a polemic or offensive way. The
depictions were particularly disturbing and drew a high degree of media
attention because the pictures combined on the posters showed seemingly similar
situations, which could only be discerned by the fact that one side showed
coloured photographs of animals and the other black-and-white photos of humans,
both alive and dead. Seen from the point of view of an ordinary spectator, the
impugned posters had to be interpreted as putting the fate of the depicted
animals and of the depicted humans on the same level.
There was no indication that the applicant
association’s primary aim was to debase the victims of the Holocaust, as the
posters obviously intended to criticise the conditions under which animals were
kept and to encourage the spectator to reflect upon these conditions. It
followed that the expression of opinion related to questions of public interest
and would thus generally enjoy a higher degree of protection when weighing the
competing interests. However, in the instant case it had to be taken into
account that concentration camp inmates and Holocaust victims had been put on
the same level as animals. In the light of the image of man conveyed by the
Basic Law, which put human dignity in its centre and only marginally referred
to the protection of animals, this comparison appeared arbitrary because the
Holocaust victims were confronted with their suffering and their fate of
persecution in the interest of animal protection. The debasement of
concentration camp inmates was thus exploited in order to militate for better
accommodation of laying hens and other animals.
The Regional Court finally considered that the
decision of the instant case did not depend on a weighing of competing
interests, as the expression of opinion violated the plaintiffs’ human dignity.
The comparison offended the plaintiffs in their capacity as Holocaust victims
by violating the respect for their human dignity. This violation was aggravated
by the fact that the depicted persons were shown in a most vulnerable state.
On 27 August 2004 the Berlin Court of Appeal rejected
the applicant’s appeal.
On 2 December 2004 the Berlin Regional Court, in
the main proceedings, confirmed its injunction. Further to the reasons given in
the interim proceedings, the Regional Court considered that it was not its task
to determine from a philosophical or ethical point of view whether the
suffering of highly developed animals could be compared to human suffering, as
the Basic Law put human dignity in its centre.
On 25 November 2005 the Berlin Court of Appeal
rejected the applicant’s appeal.
On 20 February 2009 the Federal Constitutional
Court rejected the applicant’s constitutional complaint. The Federal Constitutional Court considered that the interpretation of the impugned pictures
given by the civil courts was coherent and met the requirements imposed by the
right to freedom of expression.
The Federal Constitutional Court expressed its
doubts as to whether the intended campaign violated the human dignity of either
the depicted persons or the plaintiffs. There was no doubt that the photographs
depicted Holocaust victims in situations in which they were highly degraded by
their torturers. However, this did not necessarily imply that the use of these
pictures also amounted to a violation of the represented persons’ human
dignity. Having regard to the specific circumstances of the instant case, the
court considered that the intended campaign did not deny the depicted Holocaust
victims their personal value by putting them on a par with animals. Even though
the applicant association might generally be convinced of the equality of human
and animal suffering, the intended campaign did not pursue the aim to debase,
as the pictures merely implied that the suffering inflicted upon the depicted
humans and animals was equal.
However, the Federal Constitutional Court did
not find it necessary to decide whether the intended campaign violated the
plaintiffs’ human dignity, as the impugned decisions contained sufficient
arguments which justified the injunction without reference to a violation of
the plaintiff’s human dignity. It was, in particular, acceptable that the
domestic courts based their decisions on the assumption that the Basic Law drew
a clear distinction between human life and dignity on one side and the
interests of animal protection on the other and that the campaign was
banalising the fate of the victims of the Holocaust. It was, furthermore,
acceptable to conclude that this content of the campaign affected the
plaintiffs’ personality rights. Referring to its earlier case law, the Federal Constitutional Court considered that it was part of the self-image of the Jews
living in Germany that they belonged to a group which had been sampled out by
their fate and that a special moral obligation was owed to them by all others,
which formed part of their dignity.
The Federal Constitutional Court did not find it
necessary to remit the case for re-examination to the lower courts, as there
was no indication that the lower courts would come to a different conclusion in
case of a remittal. When weighing the competing interests, the plaintiffs’
legal position could be granted preference over the applicant association’s
right to freedom of expression even without relying on a violation of the
plaintiffs’ human dignity. The lower courts had put forward sufficient reasons
to allow this conclusion. In particular, the courts had begun to weigh the
competing interests. Furthermore, they had based their assumption that the
impugned campaign violated the plaintiffs’ human dignity on the fact that they
considered the violation of the plaintiff’s personal honour as particularly
serious. As these considerations applied in a similar way to a violation of the
plaintiffs’ personality rights, it had to be assumed that these principles
would also guide the courts in case of a remittal.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the German Basic Law
read as follows:
Article 1
“(1) Human dignity
shall be inviolable. To respect and protect it shall be the duty of all state
authority.
(2) The German people therefore acknowledge
inviolable and inalienable human rights as the basis of every community, of
peace and of justice in the world.”
Article 5
“(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 20a
Protection of the natural foundations of life and animals
“Mindful also of its responsibility toward future generations,
the state shall protect the natural foundations of life and animals by
legislation and, in accordance with law and justice, by executive and judicial
action, all within the framework of the constitutional order.”
The relevant provisions of the German Civil Code
read as follows:
Section 823
“(1) A person who, intentionally or negligently,
unlawfully injures the life, body, health, freedom, property or another right
of another person, is liable to make compensation to the other party for the
damage arising from this.
(2) The same duty is held by a person who commits a
breach of a statute that is intended to protect another person ...”
Section 1004
“(1) If the ownership
is interfered with by means other than removal or retention of possession, the
owner may require the disturber to remove the interference. If further
interferences are to be feared, the owner may seek a prohibitory injunction.”
Section 185 of the Criminal Code reads as follows:
“Insult shall be punished with imprisonment for not more than
one year or a fine ...”
According to the constant case-law of the German civil courts,
section 823 §§ 1 and 2 in conjunction with section 1004 (in analogous
application) of the Civil Code and section 185 of the Criminal Code grants any
person whose personality rights concretely risk being violated by another
person a claim to compel that other person to refrain from performing the
impugned action.
III. LEGAL POSITION OF THE AUSTRIAN SUPREME COURT
In March 2004 the applicant association
organised an exhibition in Vienna, where the same posters which form the
subject matter of the instant proceedings were publicly displayed. A number of
Austrian citizens of Jewish origin, who had allegedly survived the Holocaust
and who were not identical with the plaintiffs in the proceedings before the
German courts, filed a request with the Austrian Courts to be granted an
injunction ordering the applicant association to desist from publishing the
seven specified posters.
On 12 October 2006 the Austrian Supreme Court
(no. 6 Ob 321/04f) rejected the request. That court expressed its doubts as to
whether the plaintiffs were directly affected by the impugned poster campaign.
It considered, in any event, that the impugned campaign was justified by the
right to freedom of expression. The poster campaign did not debase the depicted
concentration camp inmates. The court further considered that the poster
campaign, besides addressing an important subject of general interest, had the
positive effect of rekindling the memory of the national-socialist genocide.
The concentration camp pictures documented the historic truth and recalled
unfathomable crimes, which could bee seen as a positive contribution to the
process of dealing with the past (Vergangenheitsaufarbeitung). The
plaintiffs had only been affected to a limited degree by way of a collective
insult. Conversely, the applicant association had a legitimate interest in
publicly addressing its subject even in a drastic way.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE
CONVENTION
The applicant association complained that the
civil injunctions violated its right to freedom of expression as provided in
Article 10 of the Convention, which reads 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. This Article shall not prevent states from requiring the licensing
of broadcasting, television or cinema enterprises.
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, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights
of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.”
The Government contested that argument.
A. Admissibility
The Court notes that this complaint is not
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.
B. Merits
1. The applicant association’s submissions
The applicant association submitted, in
particular, that the impugned decision was based on a wrong assessment of the
facts. It was not true that the impugned posters equalised the pictures of the
Holocaust and the pictures of intensive mass animal farming, they merely showed
disturbing similarities of the treatment of Holocaust victims and animals. Even
if one should assume that the representations postulated equality between the
depicted humans and animals, this was not suited to debase the depicted
Holocaust victims. According to the applicant association’s conviction, which
was increasingly shared within society, animals had to be regarded as equal
fellow creatures.
The poster campaign was in no way intended to
debase or insult the persons represented on the posters and did not violate any
of the plaintiffs’ rights. It was neither trivialising the suffering, nor did
it have any anti-Semitic background. The applicant association pointed out that
the posters did not depict the applicants and that it was not even certain that
all the persons depicted on the photographs were of Jewish Faith. Many persons
of Jewish origin would not consider that such a comparison would violate their
personality rights and had even made such comparisons in their own publications
or had participated in the original planning of the campaign. Holocaust
comparisons were not unlawful and had been widely used in public debate. The
Supreme Court of Austria, in its decision given on 12 October 2006 (see
paragraph 23, above) had rejected a request for granting a civil injunction
against the publication of the impugned posters in Austria.
The applicant association did not contest that
the legal prerequisites for granting a civil injunction were laid down in the
law as defined in the established case-law of the German courts. However, these
prerequisites had not been met in the instant case. In particular, it had not
been foreseeable for the applicant association that the publication of the
impugned depictions would, in the domestic courts’ view, violate the personality
rights of the Jews living in Germany. Contrary to the Government’s submissions,
the question of whether the plaintiffs were concerned in this case was not
clearly evaluated under German law. The case law quoted by the Government
exclusively referred to the denial of the Holocaust, and was thus not
applicable in the instant case. The decisions in this respect were devoid of
any legal basis and had thus to be considered as being arbitrary.
The applicant association further submitted that
the interference with their Convention rights had not been necessary in a
democratic society. The domestic courts had failed to consider that, under the
Court’s case-law, freedom of expression constituted one of the essential
foundations of a democratic society and that a special
degree of protection was afforded to expressions of opinions which were made in
the course of a debate on matters of public interest. The applicant
association accepted that the historical background in Germany made it necessary to apply specific criteria enabling every person of Jewish origin to take
steps against anti-Semitic discrimination. However, this approach was taken too
far if every depiction of a person of Jewish origin was automatically
considered collective insult.
The applicant association considered that it was
thus not even necessary to strike a balance between any competing interests.
Even if such a balance was to be struck, the applicant association’s right to
freedom of expression had to take precedence. The German courts had failed to
weigh the competing interests, having particular regard to the fact that the
applicant association pursued objectives of the highest ethical and moral
standards, as was further supported by the fact that the protection of animal
rights was expressly mentioned in Article 20 a of the German Basic Law. Due to
sensory overload through commercials and advertisements, the applicant
association was dependent on gaining attention for its cause in drastic ways.
It thus did not matter that the applicant association would have had other
means at its disposal to express its opinion.
2. The Government’s submissions
The Government considered that the civil
injunction was justified under Article 10 § 2 of the Convention. The German
courts had struck a fair balance between the applicant association’s right to
freedom of expression and the personality rights of the plaintiffs in the
instant proceedings, thus staying within their margin of appreciation.
The interference with the applicant association’s
right to freedom of expression had been in accordance with the law and
necessary in a democratic society in order to protect the plaintiffs’
personality rights. The legal prerequisites for a civil injunction were clearly
defined by the established domestic case-law. Under these provisions, it was
irrelevant if the applicant association had the intention of violating the
plaintiffs’ personality rights.
The civil injunction pursued the legitimate aim
of protecting the plaintiffs’ personality rights and was necessary in a
democratic society for the protection of those rights. The domestic courts had
carefully weighed the conflicting interests, thereby taking into account the
importance of the right to freedom of expression in a democratic society.
In contrast to the legal situation in Austria, there was no doubt under German law that the plaintiffs, in their capacity as Jews living
in Germany, were entitled to rely on their own personality rights in the
instant case. In its judgment of 18 September 1979 (no. VI ZR 140/78), which
concerned the denial of the Holocaust, the Federal Court of Justice established
that all persons of Jewish origin had the right to rely on their own
personality rights, irrespective of the question if they had been born after
the end of National Socialism and if all their ancestors were of Jewish
descent. The Federal Constitutional Court had correctly applied these
principles in the instant case.
The Government considered that they should be
granted a wide margin of appreciation allowing a generous definition of the
group of affected persons. This applied, in particular, in light of Germany’s
history, which meant that it was hardly conceivable that a German court would
reach a similar conclusion as the Austrian Supreme Court (compare paragraph 23,
above). Given its historical responsibility, it was Germany’s duty to ensure
that violations of personality rights could be claimed in connection with the
Holocaust. The individuals depicted on the photographs were, almost without
exception, unable to do this themselves.
It followed that it had to be assumed under the
Convention that there was a sufficient direct connection between the applicant’s
poster campaign and the plaintiffs’ personality rights. It was therefore
irrelevant whether the individuals depicted on the photographs or their
descendants would have wished the issue of the civil injunction. The attack on
the personality rights did not consist in the depiction of specific persons in
the photographs, but rather in the applicant’s use of concentration camp
photographs for their campaign. It was, furthermore, irrelevant if all of the
persons depicted were of Jewish faith, as the Holocaust aimed to destroy all
Jews living in Europe and the overwhelming majority of the victims during this
period were of Jewish origin.
According to the Government, the domestic courts
had given extensive and relevant reasons for letting the plaintiffs’
personality rights prevail over the applicant’s right to freedom of expression.
They had, in particular, taken into account that the applicant association
intended to express itself on a subject of public interest and that it did
neither intend to debase the victims of the Holocaust nor to banalise their
suffering. On the other hand, the domestic courts had taken into account the
gravity of the violation of the plaintiffs’ personality rights. Furthermore, it
had to be considered that the sanction imposed on the applicant association had
not been very severe and that the applicant association had numerous other
possibilities to express their protest against mass animal farming.
3. The third parties’ submissions
The third parties submitted that the intended
poster campaign directly violated the rights of Mr S. Korn in his capacity as a
Jew living in Germany and the Jews living in Germany, who were, by a majority,
represented by the Central Council of Jews in Germany. They emphasised that it
was accepted in the established case-law of the Federal Court of Justice and of
the Federal Constitutional Court that the Jews living in Germany regarded themselves as a group singled out by fate, towards whom all others had a particular
moral responsibility. Consequently, a denial or trivialisation of the genocide
of Jews in the Third Reich violated the right of each member of this group. The
direct violation of the rights of all Jews living in Germany was also
recognised in simple legal standards and on a European level.
The direct effect on the Jews living in Germany was not dependent on the identification of the depicted Holocaust victims. There
could be no serious doubt that such pictures were a symbol of the systematic
persecution and murder of the Jews in Europe. Each one of the more than 100,000
Jews represented by the Central Council of Jews would affirm a violation of
their personal rights. It became clear from the applicant association’s
submissions that they were not aware of the sensitivity of the subject matter.
In the eyes of a rational and unbiased public,
the photographs combined with the accompanying texts allowed the only possible
conclusion that the suffering of the depicted animals counted just as much as
the suffering of the people pictured next to them. It did not matter in this
context whether the applicant association intended to violate the personal
rights and human dignity of the Jews living in Germany.
4. Assessment by the Court
The Court notes that it is common ground between
the parties that the impugned measure constituted an “interference by [a]
public authority” with the applicant’s right to freedom of expression as
guaranteed under Article 10 of the Convention. The Court endorses this
assessment. Such interference contravenes the Convention if it does not satisfy
the requirements of paragraph 2 of Article 10. It therefore falls to be
determined whether the interference was “prescribed by law”, had an aim or aims
that is or are legitimate under Article 10 § 2 and was “necessary in a
democratic society” for the aforesaid aim or aims.
The Court notes that the interference had a
legal basis in section 823 §§ 1 and 2 in conjunction with section 1004 of the
Civil Code, and section 185 of the Criminal Code (compare paragraph 21,
above). The Court observes that the applicant association did not contest that
these provisions, under the established domestic case-law, grant any person
whose personality rights risk being violated by another person a claim to
compel that other person to refrain from performing the impugned action. There
is no doubt that the relevant texts were accessible to the applicant
association. As to the question of whether the domestic courts correctly
applied these provisions, the Court reiterates that the application and the
interpretation of the domestic law primarily fall within the competency of the
domestic authorities which are, in the nature of things, particularly well
placed to settle the issues arising in this connection (compare inter alia Barthold
v. Germany, 25 March 1985, § 48, Series A no. 90). The Court observes
that the applicant association’s argument primarily evince its disagreement
with the domestic courts’ decisions. Accordingly, the Court is satisfied that
the injunction complained of was “prescribed by law”.
The Court is further satisfied that the
interference pursued the legitimate aim of protecting the plaintiffs’
personality rights and thus “the reputation or rights of others”.
It thus remains to be determined whether the
interference was “necessary in a democratic society”. In the judgment of Pedersen
and Baadsgaard v. Denmark [GC], no. 49017/99 ECHR 2004-XI, the Court
summarised the general principles in its case law as follows:
“68. The test of “necessity in a democratic society”
requires the Court to determine whether the interference complained of
corresponded to 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 (see, among
many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR
2003-V, and Association Ekin v. France, no. 39288/98, § 56, ECHR
2001-VIII).
69. The Court’s task in exercising its supervisory
function is not to take the place of the competent domestic courts but rather
to review under Article 10 the decisions they have taken pursuant to their
power of appreciation (see Fressoz and Roire v. France [GC], no.
29183/95, § 45, ECHR 1999-I). This does not mean that the supervision is
limited to ascertaining whether the respondent State exercised its discretion
reasonably, carefully or 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, including
the content of the comments held against the applicants and the context in
which they made them (see News Verlags GmbH & Co. KG v. Austria, no.
31457/96, § 52, ECHR 2000-I).
70. In particular, the Court must determine whether
the reasons adduced by the national authorities to justify the interference
were “relevant and sufficient” and whether the measure taken was “proportionate
to the legitimate aims pursued” (see Chauvy and Others v. France, no.
64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself
that the national authorities, basing themselves on an acceptable assessment of
the relevant facts, applied standards which were in conformity with the
principles embodied in Article 10 (see, among many other authorities, Zana
v. Turkey, judgment of 25 November 1997, Reports 1997-VII, pp. 2547-48,
§ 51).”
The Court recalls that the domestic authorities
have a variety of tools at their disposal allowing them to strike a fair
balance between the various interests at stake. In assessing the
proportionality of the measure at issue they have, beyond the complete prohibition
or authorisation of the expression of an opinion, in particular the option of
setting specific limits to the authorisation or to the prohibition. Moreover,
freedom of expression is applicable to not only “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. 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 (see Axel Springer AG v. Germany [GC], no. 39954/08, § 78,
7 February 2012, with further references). Furthermore,
there is little scope under Article 10 § 2 of the Convention for restrictions
on political speech or on debate on matters of public interest (see, among other
authorities, Ceylan v. Turkey [GC], no. 23556/94, § 33, ECHR
1999-IV; Verein gegen Tierfabriken Schweiz
(VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 92, ECHR 2009 and Mouvement
raëlien v. Switzerland [GC], no. 16354/06, § 61, 13
July 2012).
Turning to the circumstances of the instant
case, the Court observes, at the outset, that the applicant association’s
intended poster campaign concerned battery
animal-farming. Accordingly, as it related to animal and environmental
protection, it was undeniably in the public interest (compare Verein
gegen Tierfabriken Schweiz, ibid.). It follows
that only weighty reasons can justify the interference with the applicant’s
right to freedom of expression in this context. The Court further
observes that the domestic courts adjudicating the applicant’s case carefully
examined whether the issue of the requested civil injunction would violate the
applicant association’s right to freedom of expression. In doing so, the
domestic courts applied the standards developed by the Court as set out above.
They expressly accepted that the impugned representations constituted
expressions of opinion and where thus protected under the right to freedom of
expression. They further acknowledged that this right protected expressions
even if they were formulated in a polemic or offensive way (compare paragraph
10, above) and that the impugned posters related to questions of public
interest, as they were obviously intended to criticise the conditions under
which animals were kept (compare paragraph 11, above).
The Court further observes that the domestic
courts considered that the intended poster campaign did not pursue the aim to
debase the depicted concentration camp inmates, as the pictures merely implied
that the suffering inflicted upon the depicted humans and animals was equal.
The domestic courts considered, however, that the applicant association
confronted the plaintiffs with their suffering and their fate of persecution in
the interest of animal protection. It was this “instrumentalisation” of the
plaintiffs’ suffering that violated their personality rights in their capacity
as Jews living in Germany and as survivors of the Holocaust. This violation was
aggravated by the fact that the depicted Holocaust victims were shown in a most
vulnerable state. Having regard to the seriousness of this violation, the
courts considered that the applicant association’s interests in publishing the
impugned pictures had to cede. While expressing its doubts as to whether the
intended campaign violated the human dignity of either the depicted persons or
the plaintiffs, the Federal Constitutional Court endorsed the lower courts’
assessment that the campaign banalised the fate of the Holocaust victims and
that the violation of the plaintiffs’ personal honour was particularly serious.
The Court considers that the facts of this case
cannot be detached from the historical and social context in which the
expression of opinion takes place (compare Hoffer and Annen, cited
above, § 48 and Rekvényi v. Hungary [GC], no. 25390/94, §§ 46 et
seq., ECHR 1999-III). It observes that a reference to the Holocaust
must also be seen in the specific context of the German past (see Hoffer and
Annen, ibid.) and respects the Government’s stance that they deem
themselves under a special obligation towards the Jews living in Germany (compare paragraph 36, above). In the light of this, the Court considers that the
domestic courts gave relevant and sufficient reasons for granting the civil
injunction against the publication of the posters. This is not called into
question by the fact that courts in other jurisdictions might address similar
issues in a different way (also compare Müller v. Switzerland, 24
May 1988, § 36 , Series A no. 133).
The Court further recalls
that the nature and severity of any sanction imposed are also factors to be
taken into account when assessing the proportionality of the interference (see,
among other authorities, Ceylan, cited
above, § 37 and Annen II v. Germany (dec.),
nos. 2373/07 and 2396/07, 30 March 2010). Turning to the circumstances of the
instant case, the Court notes that the proceedings at issue did not concern any
criminal sanctions, but a civil injunction preventing the applicant association
from publishing seven specified posters. The Court finally observes that the
applicant has not established that it did not have other means at their
disposal of drawing public attention to the issue of animal protection.
Having regard to the foregoing considerations
and, in particular, to the careful examination of the case by the domestic
courts, the Court accepts that the civil injunctions issued against the
applicant association were a proportionate means to protect the plaintiffs’
personality rights.
There has accordingly been no violation of Article 10 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant association further complained
under Article 6 § 1 of the Convention that the domestic courts arbitrarily
based their judgments on a false assessment of the facts and failed to take
into account relevant case law of the Federal Constitutional Court. It finally
complained under Article 14 of the Convention that it was stigmatised as
being anti-Semitic.
However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
FOR THESE REASONS, THE COURT
UNANIMOUSLY
1. Declares the complaint under Article 10 of
the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of
Article 10 of the Convention.
Done in English, and notified
in writing on 8 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Zupancic
joined by Judge Spielmann is annexed to this judgment.
D.S.
C.W.
CONCURRING OPINION OF JUDGE ZUPANČIČ, JOINED BY
JUDGE SPIELMANN
1. We agree, obviously, with the outcome in this
case. We beg to differ, however, with the reasoning of the majority such as
essentially implied in § 49 of the judgment, where it says “that the
impact of an expression of an opinion [...] on another person’s personality rights
cannot be detached from the historical and social context in which the
statement has been made and that a reference to the Holocaust must also be seen
in the specific context of the German past.” (Citing Hoffer and Annen,
§ 48).
2. This, of course, is very true, yet it also
implies the Court might agree to the impunity of an applicant’s behaviour in a
jurisdiction where the “historical and social context” is purportedly
different.
3. Apart from that, the real question here is the
relativisation of an unacceptable use of the freedom of expression. This
relativisation is only a shade removed, if one considers mere appearances, from
a Nazi kind of discriminatory pronouncement. One need only imagine that the
poster was made from the opposite point of view; then one easily arrives at a
converse impression that the inmates shown behind the barbed wire are to be
compared with the pigs behind the bars. If such is the kind of statement
covered by freedom of expression, one then finds it difficult to understand,
what is not covered by freedom of expression.
4. The above relativisation is deeply problematic
from a seemingly “democratic” point of view, where everything goes because
everything is relative and everything is, to put it metaphorically, for sale.
People only have opinions, but they lack convictions, let alone the courage of
their convictions. The difference between good and evil, between what is right
and what is clearly wrong is thus a matter of opinion, as if reasonable men
could reasonably differ on a particular subject matter.
5. Here we may pause and ask, whether reasonable
men could indeed or could not differ on the utterly distasteful and
unacceptable comparison between pigs on the one hand and the inmates of
Auschwitz or some other concentration camp, on the other hand. A few decades
ago this kind of Denkexperiment, even in the American context, would
only yield a result unfavourable to the applicants, because a few decades ago,
reasonable persons could not possibly differ on the question we have before us
in this case.
6. Apparently, things have changed to the extent
that indeed both the Federal Constitutional Court in Germany, as well as our
Court, are still able to say that such comparison is unacceptable, but only in
the context of a country carrying a historical stigma concerning the
concentration camps.
7. The Federal Constitutional Court, as we say in
paragraph 48, endorsed the lower German courts’ assessment to the effect that
the campaign made banal the fate of the Holocaust victims and that the
violation of the plaintiffs’ personal honour was particularly serious. We, on
the other hand, seem to be even more “flexible” and we only maintain that the
personality rights (Persönlichkeitsrechte) cannot be detached from the
social context in which the poster statement has been made and moreover, that
the reference to the Holocaust must also be seen in the specific context of the
German past.
8. Quite apart from the fact that the German
Federal Constitutional Court did not consider the issue under the
constitutional norm concerning dignity, this was explained by technical
reasons; there is a noticeable difference between the two positions. Thus, it
is difficult to say whether that court, if such an attack were to occur; would
indeed find it incompatible with human dignity. Personally, we have no doubts
that it would.
9. If that were to be true, the position taken by
the domestic constitutional court would be far more than ours a question of
principle, i.e., the decision would not be taken in the German domestic context
as a matter of cultural relativisation. On the other hand, the unfortunate
implication of our own position seems to be that the same kind of “freedom of
expression” in the Austrian cultural context would clearly be acceptable - let
alone in other countries ranging from Azerbaijan in the east to Iceland in the
west.
10. Moreover, since the judgment in this case,
unless it goes to the Grand Chamber, will become a precedent, it will be de
facto binding on all other countries, of course negatively - except on Germany.
Because, what is unacceptable in Germany, is no longer unacceptable in Austria,
with a similar historical concern, and a fortiori so in other countries. We do
not believe that such an approach, were it to be reconsidered by the Grand
Chamber, would be acceptable and confirmed.
11. If we now return to the opening theme and
consider the difference between the principled and the relativistic positions,
as in this case, we may be reminded, although tangentially, of H. L. A. Hart’s
distinction between prescriptive norms on the one hand and the instrumental
norms on the other hand.
12. Because instrumental norms are relative to the
prescriptive norm, they are in that sense relative, whereas the prescriptive
norm is by counter distinction and juxtaposition, categorical and in that
sense, absolute.
13. Here we are reminded of Immanuel Kant’s
categorical imperative. His position was that every human being must be treated
as an end in himself. This perhaps coincides with the German constitutional
concept of dignity.
14. But when human beings in their utter suffering
and indignity are, as here, compared to hens and pigs for the lesser purpose of
protecting otherwise legitimate advancement of animal rights, we are no longer
in the position to maintain that the human beings seen in these pictures are
treated as an end in themselves.
15. Clearly, these human beings, not only Jewish
but of all nationalities, in a concentration camp, are here treated as an
instrument for the advancement of animal rights. If their image is so
instrumentalised, little is left of their human dignity, I’m certain, even in
the context of German constitutional law.
16. Hart’s distinction between prescriptive norms
on the one hand and instrumental norms on the other hand, is in fact an analogy
to the distinction between Kant’s categorical imperative on the one hand and
less categorical norms on the other hand.
17. In simple legalistic language, the question is
therefore, where do we draw the line? Would these pictures be acceptable in
Azerbaijan or Iceland, or in Austria, or would they not be acceptable?
18. Indeed, this is a question of varying cultural
standards, which may or may not be shared in any of the 47 different cultural
contexts. In turn, the European Court of Human Rights is put in a position
whereby it may or it may not relegate the issue to the so-called margins of
appreciation.
19. According to that logic, what is acceptable in
any other country may not be acceptable in Germany, etc. We see, that this is
simply a different kind of relativisation of the same issue, i.e., of our own
refusal to draw the line. If the line cannot be drawn here, one is entitled to
ask where it would be drawn. It would be difficult to find anything more shocking,
as Justice Frankfurter of the U.S. Supreme Court would have said, to human
conscience.
