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 25 November 2004 and 7 December 2004 the applicant distributed leaflets in the immediate vicinity of the medical practice of Dr S. The leaflets contained, inter alia, the following text on the front page:
“Did you know that Dr S. [full name and address] performs abortions that are unlawful according to the case-law of the Federal Constitutional Court?” (Wussten Sie schon, dass Dr S. ... Abtreibungen durchführt, die nach der Rechtsprechung des Bundesverfassungsgerichts rechtswidrig sind?)
Underneath, the following was in smaller type:
“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 back side of the folded leaflet contained the following text:
“The aggravated murder of human beings in Auschwitz was unlawful, but the morally degraded NS State allowed the aggravated 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.)
The applicant further quoted parts of the Federal Constitutional Court’s leading judgment of 28 May 1993 (BVerfGE 88, 203) (see paragraph 17 below) with regard to abortion and a statement by Christoph-Wilhelm Hufeland, the personal physician of Goethe and Schiller. He also cited section 12(1) of the Conflicts in Pregnancy Act (see paragraph 17 below) and asked readers to make use of their influence on those performing and assisting in abortions.
7.  By a letter of 23 December 2004 Dr S. requested that the applicant sign a declaration to cease and desist. The applicant refused and published the following statement on his website:
“If Dr S. [full name], by carrying out abortions, publicly shows that he agrees with abortions, then he should stand by his opinion. Instead Dr S. considers the leaflet campaign to be slander, threatens an interim injunction and has already given his lawyer a mandate to lodge a criminal complaint for defamation/slander. We ask ourselves: Is Dr S. unprincipled and characterless?” (Wenn Dr S. mit der Durchführung von Abtreibungen öffentlich bekundet, dass er für Abtreibungen ist, dann sollte er auch dazu stehen. Stattdessen sieht Dr S. in der Flugblatt-Verteilaktion eine Rufmordkampagne, droht mit einer einstweiligen Verfügung und hat bereits seinem Rechtsanwalt die Vollmacht gegeben, eine Strafanzeige wegen Beleidigung/Verleumdung zu erwirken. Wir fragen uns: Ist Dr S. stand- und charakterlos?)
8.  Subsequently Dr S. applied to the Karlsruhe Regional Court for a civil injunction ordering the applicant not to claim on the Internet that the plaintiff performed unlawful abortions and not to disseminate leaflets containing his name and the assertion that unlawful abortions were performed in his medical practice. He also lodged a claim for non-pecuniary damages in the amount of 20,000 euros (EUR) and for pre-trial legal fees.
9.  On 30 September 2005, the date of the oral hearing before the Karlsruhe Regional Court, the applicant distributed a second leaflet directly in front of Dr S.’s practice. Among other places, the applicant deposited this second leaflet, in which Dr S. was not mentioned by name, into letterboxes in the immediate vicinity of the latter’s practice. The following sentence was on the front side of the leaflet:
“Near you: unlawful ABORTIONS ... and YOU are silent about the AGGRAVATED MURDER of our CHILDREN?” (In Ihrer Nähe: rechtswidrige ABTREIBUNGEN ... und SIE schweigen zum MORD an unseren KINDERN?) [Emphases in original]
The back of the folded leaflet contained the following text:
“These pre-natal infanticides have meanwhile taken on proportions that bring to mind a new HOLOCAUST!” (Diese vorgeburtlichen Kindstötungen haben mittlerweile Ausmaße angenommen, welche an einen „neuen HOLOCAUST“ erinnern!) [Emphases in original]
Farther down the leaflet read:
“I’m simply unable to understand that medical personnel and doctors, who are supposed to help and save lives, stoop to take part in aggravated murder.” (Noch weniger kann ich verstehen, dass Mediziner und Ärzte, welche helfen und Leben retten sollen, sich für’s Morden hergeben)
10.  On 4 November 2005 the Karlsruhe Regional Court granted the requested injunction and ordered the applicant to desist from asserting publicly, both in writing and orally, on the Internet as well as on leaflets, that the plaintiff performed unlawful abortions in his medical practice. In addition, the Regional Court awarded compensation for the pecuniary damage requested by the plaintiff (EUR 811.88) and dismissed the claim in respect of non‑pecuniary damage.
11.  The court held that the applicant’s statements were protected by freedom of expression and contributed to a public debate. Moreover, they had to be classified as statements of fact and, as such, the information that abortions were unlawful was in line with the judgment of the Constitutional Court and not incorrect. However, when read in conjunction with the whole leaflet, the statements had a “pillory effect” and amounted to a serious interference with Dr S.’s personality rights, which was not justified by the applicant’s freedom of expression. The court came to this conclusion based on the facts that the applicant had singled out Dr S. by mentioning him by name and distributing the leaflets in the vicinity of his practice, that he had quoted the Federal Constitutional Court’s judgment only in parts and had omitted the parts that stated that doctors had not been subject to criminal liability, that he had implied by defining aggravated murder that Dr S. had committed this criminal offence and that he had associated Dr S. with the Holocaust. Nonetheless, in regard to non-pecuniary damage the court concluded that even though the attacks on Dr S.’s reputation had been grave enough to justify the injunction, they had not been sufficiently serious to justify non-pecuniary damage.
12.  The applicant and Dr S. appealed against the Regional Court’s decision. Additionally Dr S. expanded his action to include the second leaflet (see paragraph 9 above), which subsequently became the subject matter of the judgment of the Karlsruhe Court of Appeal.
13.  On 28 February 2007 the Karlsruhe Court of Appeal confirmed the reasoning of the Regional Court and in essence dismissed both appeals. However, it partly modified the Regional Court’s judgment concerning the precise wording of the requested injunction. It ordered the applicant to desist from asserting in public that Dr S. performed unlawful abortions in his medical practice and asserting in direct connection to this that “aggravated murder is the intentional ‘bringing-to-death’ of an innocent human being”. The Court of Appeal further ordered the applicant to desist from asserting that Dr S. performed unlawful abortions causing “infanticide”. At the outset, it emphasised that the applicant’s view that abortions should be subject to criminal liability and were not compatible with higher-ranking law fell within the applicant’s freedom of expression. However, the court also noted that the very wording of the applicant’s statements showed that he labelled abortions, as performed by the plaintiff, aggravated murder, which could not be tolerated, neither if the statements were considered statements of fact nor if considered value judgments. In the court’s view the applicant had created an unacceptable “pillory effect” by singling out the plaintiff, who had not given the applicant any reason to do so. In that regard the court noted that Dr S. had not been involved in the public debate about abortions in any way.
14.  In regard to the second leaflet the Court of Appeal held that even though Dr S. had not been mentioned by name, it had referred to him as it had been distributed in front of his medical practice and deposited in letterboxes in the vicinity. Similarly to the first leaflet, a not negligible part of the readers would have understood from the leaflet that Dr S.’s professional activities had constituted aggravated murder. However, even if understood in a non-legal sense, the leaflet had made it understood that the applicant had conducted illegal and punishable abortions. Since the applicant had not clarified that he had only been criticising abortions, which were according to the case-law of the Federal Constitutional Court (see paragraph 17 below) unlawful but not subject to criminal liability, he had exceeded the limits of justifiable criticism. As to the claim for damages the Court of Appeal upheld the first‑instance judgment. It also did not grant leave to appeal on points of law.
15.  On 29 May 2007 the Federal Court of Justice refused a request by the applicant for legal aid for his complaint against the denial of leave to appeal on points of law on the grounds that the applicant’s intended appeal on points of law lacked sufficient prospect of success.
16.  On 2 July 2009 the Federal Constitutional Court refused to admit a complaint lodged by the applicant for adjudication for being inadmissible, without providing reasons (no. 1 BvR 1659/07).