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FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 18397/03
by Fritz WITT
against Germany
The European Court of Human Rights (Fifth Section), sitting on 8 January 2007 as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 6 June 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Fritz Witt, is a German national who was born in 1947 and lives in Mitterteich.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2001 a client mandated the applicant, a solicitor, with the enforcement of a compensation claim of 2,400 DEM (approximately 1,200 EUR) against a Dry Cleaner’s Company (N) which had failed to return the client a table cloth handed in for dry cleaning. As N paid only a part of the sum demanded, the applicant wrote N a letter which contained the following statement:
“I will (...) advise my client to warn the public of doing business with you, if you should not be willing to regulate the theft of goods entrusted to you by paying compensation. A company showing such business conduct does not deserve public confidence, but exposure in the newspaper BILD.”
On 31 May 2002 the Weiden District Court convicted the applicant of attempted coercion and sentenced him to a fine of 30 daily rates of 70 EUR. The court balanced the applicant’s need to successfully defend his client’s interests and the need to protect N’s freedom of action. It held that the threat of exposing N in “BILD”, a mass media newspaper, amounted to a “grievous harm” (empfindliches Übel) as described in Section 240 § 1 of the Criminal Code. The threat was moreover reprehensible (verwerflich) within the meaning of Section 240 § 2 of the Criminal Code (see “Relevant domestic law and practice”) because it was disproportionate to the aim pursued. The implementation of the threat was likely to bring about serious economic harm for N whereas the enforcement of the client’s compensation claim would have been easily possible before the civil courts. In this context, the court underlined the fact that N did not contest the claim as such but only the amount in question.
On 24 September 2002 the Weiden Regional Court confirmed the conviction, but changed the sentence to 50 daily rates of 10 EUR. It found that the terms “exposure” and “theft”, impliedly announced a sensational way of reporting in the newspaper which appeared disproportionate as it had not been proven that the table cloth had actually been stolen.
On 8 January 2003 the Bavarian Supreme Court dismissed the applicant’s appeal on points of law. It underlined that a public announcement and also a call for boycott could be considered lawful in view of the freedom of expression if it possessed social adequacy. It however held that the impugned threat of the public announcement of facts which had not been proven amounted, in the present case, to a reprehensible coercion.
On 10 March 2003 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint without giving any reasons.
B. Relevant domestic law and practice
(1) Section 240 of the Criminal Code the relevant part of which reads as follows:
“(1) Whoever coerces another person unlawfully using force or threat of grievous harm to take action, acquiesce or make an omission shall be punishable ...
(2) The act shall be unlawful if the use of force or the threat of harm is deemed reprehensible in relation to the aim pursued.
...”
(2) In its judgment of 18 March 1952 the Federal Court of Justice ascertained that the term “reprehensible” within the meaning of Section 240 of the Criminal Code required an element of disproportion between the means of coercion and the aim pursued which presented itself as contrary to moral standards.
(3) On 24 October 2001 (1 BvR 1190/90, 1 BvR 2173/93 and 1 BvR 433/96) the Federal Constitutional Court underlined that the term reprehensible embodied the concept of proportionality and further recalled its case-law (1 BvR 713/83, 11 November 1986) pursuant to which the constitutional standards required that in order to assess whether the relation between the means of coercion and the aim pursued was reprehensible, all essential circumstances and connections had to be considered and the rights and interests at issue had to be balanced.
COMPLAINTS
1. The applicant complained under Article 7 of the Convention that the term “reprehensible” within the meaning of Section 240 § 2 of the Criminal Code was too vague as to make a potential conviction foreseeable.
2. The applicant further complained under Article 10 of the Convention that his conviction violated his right to freedom of expression.
3. With reference to Article 6, the applicant complained that the Federal Constitutional Court refused to admit his complaint without giving any reasons.
4. The applicant finally complained that the German Government did not grant the Federal Constitutional Court the financial resources needed to treat its pending affairs meticulously.
THE LAW
1. The applicant complained that the term “reprehensible” within the meaning of Section 240 § 2 of the Criminal Code was too vague as to make a potential conviction foreseeable. He invoked Article 7 of the Convention, which provides as relevant:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
The Court recalls that the guarantees enshrined in Article 7 should be construed and applied in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001‑II). Accordingly, Article 7 requests that the applicant’s acts, at the time when they were committed, constituted an offence defined with sufficient accessibility and foreseeability by the German law. An offence is clearly defined in the law where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable (see Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 36, ECHR 1999‑IV).
Yet, however clearly drafted a legal provision may be, there is an inevitable element of judicial interpretation and there will always be a need for elucidation of doubtful points and for adaptation to changing circumstances (see Baskaya and Okcuoglu, cited above, §§ 36 and 39; and Forum Oil and Gas Oy v. Finland (dec.), no. 32559/96, 12 November 2002). Article 7 cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see S.W. v. the United Kingdom and C.R. v. the United Kingdom, judgments of 22 November 1995, Series A no. 335-B, pp. 41-42, §§ 34-36, and Series A no. 335-C, pp. 68-69, §§ 32-34, respectively).
The Court yet recalls that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation and this Court does not interfere to substitute its own interpretation for that of the domestic courts in the absence of arbitrariness (Brualla Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports of Judgments and Decisions 1997‑VIII, p. 2947, § 31). In the light of the above principles concerning the scope of its supervision, the Court’s task is not to rule on the applicant’s individual criminal responsibility, that being primarily a matter for the assessment of the domestic courts (see Streletz, Kessler and Krenz, cited above, § 51), but to assess whether the pertinent provision in the German law defined with the sufficient foreseeability that the applicant’s act could make him criminal liable.
The Court has already had occasion to consider the issue of “lawfulness” for the purposes of Article 10 of the Convention inter alia in the case of Hashman v. the United Kingdom (see, judgment of 25 November 1999, Reports 1999, pp. 13-16, §§ 29-43). In that case, a binding-over order was not expressed to be a “sanction”, or punishment, for behaviour of a certain type, but rather an order, imposed on the applicants, not to breach the peace or behave contra bonos mores in the future. The applicants did not breach the peace, and given the lack of precision, it could not be said that what they were being bound over not to do must have been apparent to them. The Court thus found in that case that the contested order did not comply with the requirement of “lawfulness” (ibid. p. 16, § 41). That case is different from the present case, in which the Federal Court of Justice had defined the term “reprehensible” in Section 240 § 2 of the Criminal Code specifying that it required an element of disproportion between the means of coercion and the aim pursued (see “Relevant domestic law and practice” above). The applicant threatened to announce in one of the most widely read newspapers in Germany that N had stolen goods from a client, although this fact had not been proven. The national courts found that implementing this threat was likely to bring about serious economic harm for N in that he would probably have lost numerous clients. Yet, the enforcement of the client’s compensation claim would have been possible before the civil courts since N had not contested the claim as such. Under these circumstances the assumption of disproportionality between the means of coercion and the aim pursued does not appear arbitrary and the applicant, a lawyer by profession, could have foreseen the risk of punishment when voicing his threat. At the time when it was committed the applicant’s act hence constituted an offence defined with sufficient accessibility and foreseeability.
It follows that this complaint is manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant further complained that his conviction violated his right to freedom of expression. He invoked Article 10 of the Convention, which provides as relevant:
“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 Court holds that the applicant’s conviction amounted to an interference with his right to freedom of expression under Article 10. Given that the requirements as to the “law” are largely the same under Article 7 § 1 and Article 10 § 2 (see Başkaya and Okçuoğlu, cited above, § 49) the interference was, for the reasons stated above, prescribed by law, namely Section 240 of the Criminal Code. The conviction moreover pursued several legitimate aims such as the prevention of crime and the protection of the reputation and rights of others.
Finally, it has to be assessed whether the interference can be regarded as necessary in a democratic society having regard to the criteria established in the Court’s case-law (see Lehideux and Isorni v. France, judgment of 23 September 1998, Reports 1998‑VII, § 51; and Zana v. Turkey, judgment of 25 November 1997, Reports 1997‑VII, , pp. 2547–48, § 51). In the present case the German courts took into account that it was the applicant’s task to enforce his client’s rights and that his conviction interfered with his right to freedom of expression. They weighed this against the fact that N had already accepted the claim on its merits and that the implementation of the threat was likely to bring about serious economic harm for N. Furthermore, they underlined that the terms “exposure” and “theft”, impliedly announced a sensational way of reporting in the newspaper and therefore particularly appeared to be disproportionate as it had not been proven that the table cloth had actually been stolen. Having regard also to the modest amount of the fine imposed on the applicant, the Court considers that the authorities duly balanced the applicant’s need to defend his client’s interests and the necessity to protect N’s freedom of action and that they did not go beyond their margin of appreciation (see, mutatis mutandis, Schöpfer v. Switzerland, judgment of 20 May 1998, Reports 1998-III, p. 1053-1054, § 33).
It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
3. With reference to Article 6, the applicant complained that the Federal Constitutional Court refused to admit his complaint without giving any reasons.
The Court recalls that for national superior courts, it suffices to reject a complaint by simply referring to the legal provisions allowing such a rejection if the questions raised by the complaint are not of fundamental importance (Burg and others v. France (dec.), no 34763/02, ECHR 2003-I, Teuschler v. Germany (dec.), no 47636/99, 4 October 2001 and Vogl v. Germany (dec.), no 65863/01, 5 December 2002). The present dispute did not raise any questions of fundamental importance as the lower courts did not deviate from the Federal Constitutional Court’s case-law concerning the term “reprehensible” employed in Section 240 of the Criminal Code (see “Relevant domestic law and practice” above).
This complaint must accordingly be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
4. The applicant finally alleged that the German Government did not grant the Constitutional Court the financial resources needed to treat its pending affairs meticulously.
There is no indication of an actual link between the Constitutional Court’s refusal to admit the applicant’s complaint and the alleged lack of financial means.
The complaint is of a general nature and must hence be rejected for incompatibility ratione personae with the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President