AS TO THE ADMISSIBILITY OF Application No. 36283/97 by Wolfgang, Ingrid, Maya and Iris KELLER against Germany The European Commission of Human Rights (First Chamber) sitting in private on 4 March 1998, the following members being present: MM M.P. PELLONPÄÄ, President N. BRATZA E. BUSUTTIL A. WEITZEL C.L. ROZAKIS Mrs J. LIDDY MM L. LOUCAIDES B. CONFORTI I. BÉKÉS G. RESS A. PERENIC C. BÎRSAN K. HERNDL M. VILA AMIGÓ Mrs M. HION Mr R. NICOLINI Mrs M.F. BUQUICCHIO, Secretary to the Chamber Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 15 May 1997 by Wolfgang, Ingrid, Maya and Iris KELLER against Germany and registered on 29 May 1997 under file No. 36283/97; Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The applicants are German citizens. The first and the second applicants, born in 1937 and 1950 respectively, are a married couple. The third and fourth applicants, born in 1981 and 1980, are their daughters. The applicants are members of Scientology, a world-wide organisation with its international headquarters in Los Angeles (United States of America), and live in Schwabhausen (Germany). In the proceedings before the Commission the applicants are represented by Mr. Douwe Korff, a lawyer and lecturer at Cambridge University (United Kingdom). The facts of the case as submitted by the applicants may be summarised as follows. Members of the Federal Parliament (Bundestag) in Bonn and of the Parliaments of the Länder discussed repeatedly the question of Scientology. They warned that Scientology was particularly dangerous and considered that it did not constitute a church but instead was much more like a commercial enterprise. The Federal Government and the Governments of the Länder adopted joint strategies with a view to reducing the influence of Scientology organisations. In various Länder measures were taken to reduce the influence of Scientology and to warn of its dangers. The Government of the Land of Bavaria ordered schools to inform pupils of all ages and their parents about the goals, strategies and operating procedures of Scientology. In April 1996, the Bavarian Ministry of Education (Bayerisches Staatsministerium für Kultus, Wissenschaft und Kunst) published in the issue of the magazine Schulreport (school report) of April 1996 (issue 1/96) on pages 8 to 10 an article entitled "All clear? Information about Scientology" ("Alles Clear? Informationen über Scientology"). 90,000 copies of this report were printed and, apart from 2,200 copies, distributed to Bavarian schools. The article about Scientology was also used for teaching purposes in Bavarian schools. On 23 May and 28 June 1996 the applicants applied to the Munich Administrative Court (Bayerisches Verwaltungsgericht München) for an interim injunction (einstweilige Anordnung) restraining the Bavarian Government (Freistaat Bayern) from disseminating the issue of the magazine Schulreport of April 1996 and, to the extent it had already been disseminated, from any longer using it for teaching purposes or making it accessible to others. Subsidiarily they requested an order restraining the dissemination of this article with the inclusion of various passages quoted by them, including the following: "With a crude mixture of science fiction, psychoanalysis and manipulative practices of totalitarian systems members of Scientology are made dependent and their financial and working capacities are systematically exploited. Scientology uses techniques of mental control based on deception and manipulation. Recognising a Scientology member: In some cases the behaviour of a person changes as a result of the mind control exercised over a period of several months, more typically however within a few days or weeks. Interestingly, the members develop towards a standard personality (standardisation of personality attributes of the sect members). From the physical point of view the following signs are identified as the result of membership of the sect: a change in weight (corpulence, anorexia), loss of strength, altered beard-growth, exhaustion syndrome and psychosomatic illness. Psychological effects are manifested, inter alia, in a narrowing and weakening of the process of thinking (differentiation of language and metaphors or irony, replaced by the use of sect-internal cliches), in the changing of the emotional state, in strong changes of emotions and in non-characteristic anti-social behaviour. The occurrence of hallucinations can also be observed, because daily excessive auditing can make a person psychologically and physically addicted to this psycho-technique. This often has damaging side- effects, such as lowering of cognitive abilities, for example weak concentration and decision-making. A radical change of personality is the most revealing sign that a totalitarian group is at work. ..." The applicants also refer to comic-strip pictures drawn by schoolchildren and reproduced on page 9 with the title "Scientology" and on page 10 with the title "Scientology No!" In their submissions to the Munich Administrative Court the applicants argued in particular that the article about Scientology violated the constitutional requirement of State neutrality in matters of religion and that the article was not factual and offensive. On 29 July 1996, the Munich Administrative Court rejected the applicants' request on the ground that the applicants were not personally affected by the contested passages and pictures which did not concern all the members of the Scientology organisation. The court pointed out that Scientology was an organisation which - according to information in the contested article - had approximately eight million members world-wide. It was therefore an indeterminable group of persons, with regard to which negative statements, which were not directed at individually determinable members, were lost in the general multitude of persons, and which therefore did not have any concrete effect on individual members. The court further noted that some of the passages invoked by the applicants had not been quoted correctly. On 20 August 1996, the applicants appealed against this decision. They submitted detailed reasons for the appeal on 27 August 1996 and made supplementary submissions on 10 September 1996. The applicants again argued that the article violated their human rights, and more specifically their right as parents to educate their children in accordance with their beliefs, and insofar as their rights as children were concerned, the right of children to respect for their religious beliefs. On 27 September 1996, the Bavarian Administrative Court of Appeal (Bayerischer Verwaltungsgerichtshof) dismissed the appeal. The court, relying on rulings by various German courts, including the Federal Constitutional Court (Bundesverfassungsgericht), the Federal Court of Justice (Bundesgerichtshof) and the Federal Administrative Court (Bundesverwaltungsgericht), dealt in some detail with the German legal approach to the question of when an individual can be regarded as being directly affected (unmittelbar betroffen) by a general statement about a group. The court stated, inter alia: "When defamatory statements are made about a group the latter can have a right to apply for a restraining injunction (Unterlassungsanspruch). This is to be distinguished from the legal position of a member of the group who seeks an injunction prohibiting specific statements, not on behalf of the group, but who claims that his individual rights have been affected. The larger the group is, to which the negative statement relates, the less the individual member may be personally affected, because negative statements about large groups mostly concern not individual wrongdoing or individual characteristics of the members, but rather the worthlessness, in the view of the person making the statements, of the collective and its social functions as well as the associated behavioural demands of the members. On the imaginary scale, at one end of which stands the individual defamation of a named or identifiable single person, one can find at the other end the negative value-judgmental statement about human characteristics in general, or criticism of social bodies or matters, which are no longer capable of affecting the honour of the individual (cf. BVerfG NJW 1995, 3303/3306). Someone who wants to make a negative statement about a group, is however in principle also responsible for avoidable effects of his statements on the honour of a person who, while not as such intended to be the target of the attack, nonetheless comes in the way of the attack (cf. BGH NJW 1982, 1805). The intention of the publisher of the magazine "Schulreport", to inform about and warn against the Scientology Organisation, therefore does not necessarily preclude that the claimants were individually affected. These could however only demand an injunction against certain statements to the extent that these statements - at least also - directly affect their strictly personal legal position (cf. BGH NJW 1980, 1790; BVerwG DÖV 1984, 940 concerning the appeal against the prohibition of an association). It does not suffice if they are merely indirectly affected. The criminal law protection of the honour and the civil law protection of the personality have been limited with regard to persons who might be defamed as an indirect result of a statement directed at someone else, in order not to destroy the system rights regarding the protection of personal integrity (BGH NJW 1980, 1790). The situation concerning the protection of personal integrity in public law can be no different. If a pejorative statement is made about a group, then a member of the group can only seek a remedy against this in his own name, when the statement involves a criterion which is manifestly applicable to all the members of the group (cf. BayObLG NJW 1990, 1724; BayVGH NVwZ 1994, 787; BayVBl 1995, 564). The Administrative Court of Appeal examined the various statements about Scientology and Scientologists in the article specifically criticised by the applicants, but concluded that these all concerned Scientology as an organisation or group, and could not be said to have directly affected the applicants. According to the court, it had moreover not been claimed that the children had been directly confronted with the article in the schoolteaching they received, or that this was likely in the immediate future. On 30 October 1996, the applicants lodged a constitutional appeal with the Federal Constitutional Court. They stressed that injunctive relief was the only effective remedy in cases concerning the education of children, since proceedings in the main action would last for a long period, and would not be terminated until the children had finished their school education. On the article itself, the applicants submitted that the depiction of Scientologists as standard personalities with characteristics such as obesity/anorexia, loss of strength and altered beard-growth, whose thinking processes were narrowed and weakened, and who were held up as conditioned and brain-washed "zombies" without free will, as well as the assessment of the applicants' beliefs as "a crude mixture of science fiction, psychoanalysis and manipulative practices of totalitarian systems" was not a neutral, factual, true and tolerant informing of schoolchildren. The applicants further argued that they were directly affected by the contested article, because, like all Scientologists, they were depicted as victims of manipulation, mind control and indoctrination, and as mentally inferior human beings. Their capacity to think for themselves was denied, and their religious beliefs were derided. According to them, the State, through the publication of the article, directly attempted to indoctrinate teachers and school-children, by creating fear and panic. The educational environment of their daughters was no longer characterised by tolerance and peaceful coexistence but by hatred and exclusion. The parents had to fear for an estrangement from their children, under the influence of the State. They emphasised that the article prejudiced their rights as parents to ensure the education and teaching of their children in conformity with their own religious and philosophical convictions and of the children's right to be educated in an environment that was open and tolerant towards their beliefs. Sitting as a panel of three members, on 19 November 1996 the Federal Constitutional Court declined to accept the case for adjudication. COMPLAINTS The applicants complain that they do not have any remedy against the information campaign conducted by the Bavarian authorities and more specifically that they have been denied an effective remedy against the dissemination and promotion of a highly defamatory article in the magazine Schulreport, which was the centre-piece of the overall governmental campaign against Scientology and its members. The applicants maintain that they are victims of a violation of their right to freedom of thought, conscience and religion, and the first and second applicant of their right to ensure the education and teaching of their children in conformity with their own religious and philosophical convictions. Referring to the cases of Klass and Malone (Eur Court HR, Klass and others v. Germany judgment of 6 September 1978, Series A no. 28; Malone v. United Kingdom judgment of 2 August 1984, Series A no. 82), they consider themselves to be directly affected by the campaign directly targeted at a specific minority community, in the course of which the members of that community were described as either brain-dead zombies or demonic manipulators of enslaved victims. In their village they are targeted and ostracised. In "enlightenment" evenings and citizen's initiatives against Scientology they are denounced by name and their house is referred to in the local press as a lair of Scientologists. The applicants allege a violation of Article 9 of the Convention and of Article 2 of Protocol No. 1. They also invoke Article 13 of the Convention. THE LAW 1. The applicants complain that they are the victims of the information campaign in Bavaria concerning Scientology and in particular of an article published in the April 1996 issue of the magazine Schulreport on this organisation. They submit that the article constitutes a direct attack - couched in prejudiced and unnecessarily offensive terms - on the peaceful enjoyment of their right to thought, conscience and religion as guaranteed by Article 9 (Art. 9) of the Convention. The applicants also complain that the contested article was expressly intended to inculcate in all Bavarian schools an atmosphere of rejection and of intolerance towards the religious beliefs of the first and second applicant and affected their right as parents to ensure the education and teaching of their children in accordance with their own religious and philosophical convictions, as guaranteed by Article 2 of Protocol No. 1 (P1-2). The Commission has first examined to what extent the conditions laid down in Article 25 para. 1 (Art. 25-1) of the Convention have been met in the present case. Article 25 para. 1 (Art. 25-1) of the Convention provides: "The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non- governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. ..." The Commission recalls that, in order for applicants to be able to avail themselves of this provision, they must fulfil two conditions: they must fall into one of the categories of applicants referred to in that provision and they must be able to claim to be a victim of a violation of the Convention. As regards the first condition, the Commission notes that the applicants, as private persons, clearly fall into the categories of applicants mentioned in Article 25 (Art. 25) of the Convention. As for the second condition, the Commission recalls that the concept of "victim" as used in Article 25 (Art. 25) of the Convention must be interpreted autonomously and independently of concepts of domestic law. The Commission further recalls that an applicant cannot claim to be the victim of a breach of the rights or freedoms protected by the Convention unless there is a sufficiently direct connection between the applicant as such and the injury he maintains he suffered as a result of the alleged breach (No. 10733/84, Dec. 11.3.85, D.R. 41, p. 211). The Commission observes that the article complained of contains information about Scientology and members of this world-wide organisation in general and is not aimed at any identifiable person belonging to that organisation. Although the applicants refer to the negative attitude of their neighbourhood and the local press towards them, the Commission finds that there is no indication in the file that this conduct is a result of the information disseminated about Scientology, in particular of the article complained of. The Commission therefore finds that the effects of the contested measures are of a too indirect and remote nature as to affect the applicants' rights under Article 9 (Art. 9) of the Convention. Furthermore, there is no indication in the case file that the first and second applicant's children have ever been confronted in the schoolteaching they received with the contested article or that they risk being subjected to indoctrination that might be considered as not respecting parents' religious and philosophical convictions (see Eur. Court HR, Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976, Series A no. 23, p. 26, para. 53). It follows that this part of the application is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicants finally complain under Article 13 (Art. 13) of the Convention that they do not have any remedy against the information campaign of the German authorities and that they have been denied an effective remedy against the dissemination of the contested article. Article 13 (Art. 13) reads as follows: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." However, the Commission recalls that Article 13 (Art. 13) of the Convention has no application where, as in the present case, the main complaint is outside the scope of the Convention (see No. 9984/82, Dec. 17.10.85, D.R. 44, p. 54). It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission, unanimously, DECLARES THE APPLICATION INADMISSIBLE. M.F. BUQUICCHIO M.P. PELLONPÄÄ Secretary President to the First Chamber of the First Chamber