ANNEN v. GERMANY – JUDGMENT
15
circumstances of the present case and also bearing in mind the judgment of
the Federal Constitutional Court of 8 June 2010 (see paragraphs 24 and 25
above) dealing with almost identical questions, is convinced that the mere
fact that the additional explanation had not been visually highlighted does
not imply that a reasonable person with ordinary awareness would assume
that the abortions were performed outside the legal conditions and were
forbidden in a stricter sense of criminal liability. With regard to the impact
of the additional explanation, the Court also reiterates that it was directly
attached to the first part of the applicant’s statement and thus immediately
accessible to the reader. Therefore, the facts of the present case have to be
distinguished from those underlying the applicant’s prior applications which
the Court found to be manifestly ill-founded (see Annen v. Germany (dec.),
nos. 2373/07 and 2396/07, cited above, and Annen v. Germany (dec.),
no. 55558/10, 12 February 2013). In these cases, the applicant had
disseminated leaflets and carried a cardboard poster which had given
information about “unlawful” abortions, however without any further legal
explanation being directly accessible to the reader.
62. While the Court furthermore accepts the domestic courts’ position,
according to which the applicant’s campaign had been directly aimed at the
two doctors, it also notes that the applicant’s choice of presenting his
arguments in a personalised manner, by disseminating leaflets indicating the
doctors’ names and professional address in the immediate vicinity of the
day clinic, enhanced the effectiveness of his campaign. The Court also
points out that the applicant’s campaign contributed to a highly
controversial debate of public interest. There can be no doubt as to the acute
sensitivity of the moral and ethical issues raised by the question of abortion
or as to the importance of the public interest at stake (see A, B and C
v. Ireland [GC], no. 25579/05, § 233, ECHR 2010). Although the
Government pointed out that the doctors, as a consequence of negative
public attention, had closed the day clinic and had built up another
professional practice, it is not clear from their allegations whether the
applicant’s activities actually caused this development. In this respect, the
Court further notes that the doctors did not lodge a claim for compensation
with the civil courts due to the negative impact on their business.
63. As to the applicant’s reference to the Auschwitz concentration
camps and the Holocaust, the Court reiterates that the impact an expression
of opinion has on another person’s personality rights cannot be detached
from the historical and social context in which the statement was made. The
reference to the Holocaust must also be seen in the specific context of
German history (see Hoffer and Annen v. Germany, nos. 397/07
and 2322/07, § 48, 13 January 2011, and PETA Deutschland v. Germany,
no. 43481/09, § 49, 8 November 2012). However, given the very wording of
the leaflet, the Court cannot agree with the domestic courts’ interpretation
that the applicant had compared the doctors and their professional activities
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