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GERMANY
Berlin State court's
March 27, 2001 decision in
Minton v. Scientology et al
Many thanks to Joe Cisar for this translation of the German original.
[Berlin coat of arms - crown and bear]
[registration stamp Eisenberg 18 April 2001]
Berlin State Court
in the name of the people
hearing number: 27.O.764/00
announced on: 27 March 2001
Schmoekel, chief justice secretary
In the legal dispute
Robert S. Minton,
33 North Fort Harrison Avenue,
Clearwater, Florida 33755 USA,
complainant,
represented by: attorney-at-law Johannes Eisenberg and colleague,
Görlitzer Straße 74, 10997 Berlin,
vs.
1. Sabine Weber,
2. Scientology Kirche Deutschland e.V., represented by the board of
directors president Helmut Blöhbaum and vice president Sabine Weber,
place of occupation for both:
Beichstraße 12. 80802 Munich,
3. Scientology Kirche Berlin e.V., represented by the board of directors
Ute Koch, Monika Stamm-LoDico and Jochen Becker, Sponholzstraße 51-52,
12159 Berlin,
defendants,
represented by: attorney-at-law
Wilhelm Blumel and colleagues,
Bayerstraße 13/I, 80335 Munich,
(page 2)
civil chamber 27 of the Berlin State Court in 18589 Berlin
(Charlottenburg),
Tegeler Weg 17-21, at the verbal hearing of 27 March 2001 by the presiding
chairman
judge Mauck of the state court, judge Gollan of the state court and judge
Becker of the municipal court have recognized as just:
1. The defendants are sentenced to pay a fine of up to 500,000 DM, for
which can be substituted incarceration of up to six months, the latter in
the cases of defendants 2) and 3) to be executed on the members of their
board, for propagating, literally or analogously:
1. that which is printed in "Freiheit", issue with headline
"Menschenrechtspreis" für Dritte-Welt-Ausbeuter (Human Rights Award for
Third-World Exploiter),
p. 2, top of first column: "According to a criminal complaint against
'Robert Minton and accessories' for fraud, money laundering and forgery of
documents, filed by the Republic of Nigeria on June 23rd, 2000 with the
Attorney General in Geneva, Minton, between 1987 and 1993, following a
secret fraudulent plan 'diverted several billion US dollars to the loss of
the Republic of Nigeria... Robert Minton deposited the diverted money in
various business and private numbered bank accounts'. After the Nigerian
government asked a Geneva bank involved in the matter to freeze Minton's
bank accounts and give information concerning accusations of money
laundering 'Robert Minton met on May 20th, 2000 with the directors of that
bank', the criminal complaint continues. 'To our knowledge he demanded the
immediate transfer of his money and the destruction of documents.'"
Green shaded box on page 2, right column: "Wrocklage ... quasi-accomplice
of a man who is charged with violating half the penal code".
2. that which is printed in the flyer: "Gnadenlose Geldgier"
("Ruthless Avarice")
Column 2: "According to the certified public accountants of the globally
operating firm Arthur Andersen billions (!) of Nigerian oil dollars were
simply stolen during the mentioned period of time. All in all it is said
to be a matter of at least 12 billion US dollars. The ex-military
dictators moved the money to foreign bank accounts by means of banks and
cover companies. The unscrupulous wheeler-dealer Minton was involved in
this money racket, after he and his accessories got hold of illegal inside
knowledge to maximize their profits ... Presently there are a great number
of investigations and hearings dealing with this gigantic fraud scandal
which was carried out using 200 different bank accounts. Only recently, a
further 'vanished' 1.31 billion DM were discovered and frozen by the
Attorney General in Luxembourg."
(page 3)
3. that which is printed in Freiheit issue "Scientology in Schweden
endgültig als Religion anerkannt" (Scientology Finally Recognized as a
Religion in Sweden)
Page 2, 3rd column: "It comes as no surprise that even proven buddies of
dictatorial killer regimes are welcome guests at the Office for the
Protection of the Constitution - that they are 'against Scientology' seems
to be all that matters. Caberta and the Hamburg Department of the
Interior, the latter being responsible for the fight against crime,
recently honored the American Robert Minton with a press conference,
shortly after his close ties to an international money laundering racket of
gigantic proportions became public. As African and English newspapers are
presently reporting, the former Nigerian military dictatorship channeled
several billion (!) US dollars to foreign bank accounts with the support of
Minton and his accessories. This was part of a fraudulent deal that only
superficially had to do with repaying foreign debts."
4. that which is printed in Freiheit issue "Also doch: Caberta nahm
größere Geldsumme!" (It´s true after all: Caberta Took Major Sum of Money)
Page 2, 5th column: "... According to a criminal charge filed by the
Nigerian Republic with the attorney general of Geneva he was accused of
defrauding the country of several hundred million US dollars during his
business transactions with the former Nigerian military dictatorship. The
complaint also accuses Minton of forgery of documents and money
laundering."
2. The defendants each bear 1/3 of the costs of the legal dispute.
3. The decision is provisionally executable in the primary matter upon
receipt of a security deposit of 100,000 DM and for 10% of each amount
collected as expenses.
Facts of the Case
The complainant seeks a cease-and-desist of libelous statements propagated
about him in written matter by the defendants.
(page 4)
Defendants 2) and 3) distribute the Scientology Organization's "Freiheit"
magazine; defendant 1) appears as editor-in-chief of this paper in the
German-speaking world.
The complainant was active as a middleman for the state of Nigeria from
1988 to 1993 in the buy-back of Nigeria's foreign debts. He represented
companies which used money made available by the state of Nigeria for
reducing debt and purchased debts of foreign credit banks at a fraction of
their nominal worth. For this activity the complainant received a
commission in the amount of 1 percent, a total of about 45 million dollars.
The complainant's activities were the subject of a committee of inquiry of
the Nigerian Parliament in February, 2000, the final report of which
concluded that there were no objections to the complainant's activities and
which determined that the debt buy-backs occurred in a transparent and
traceable manner and that the contractual agreements with the Nigerian
Central Bank had been adhered to. The theme was also taken up by the press
in subsequent months. The defendants also took up the matter in various
(undated) issues of their magazine. They reported that the Republic of
Nigeria had filed charges against the complainant on the 23rd of June 2000
at the attorney general's office in Geneva and they accused him of having
cheated the country out of several hundred million dollars. He was said to
have been accused of forging documents and of money-laundering. The
complainant was said to have supported the Nigerian military dictatorship
in diverting about 12 billion dollars to private foreign bank
accounts. Reference was made to the details of the articles, submitted as
attachments to the letter of complaint.
The complainant maintains that he is not guilty of anything. He said he
was not being investigated. The reality was that the defendants were only
concerned with ruining his reputation because he (page 5) financed legal
proceedings in the USA by which the death of a member of the Scientology
organization is to be cleared up. He believes that the defendants'
reporting an alleged investigation about a charge against him would also be
illicit because the defendants did not concurrently communicate that he
disputed the accusations made against him, that Nigeria's parliamentary
investigative committee had cleared him and that the criminal investigative
authorities had not initiated search procedures nor issued a warrant on
him. In no case, he said, should the defendants have been permitted to
present the accusation based on an alleged charge as proven fact.
The complainant has applied
that the defendants be obliged, on penalty of a fine of up to 500,000 DM in
the case of violation, alternatively detention, or detention of up to 6
months, to be enforced upon the defendants 2) and 3) on one of the members
of the board of directors, to refrain from propagating, literally or
analogously,
1. that which is printed in "Freiheit", issue with headline
"Menschenrechtspreis" für Dritte-Welt-Ausbeuter (Human Rights Award for
Third-World Exploiter),
p. 2, top of first column: "According to a criminal complaint against
'Robert Minton and accessories' for fraud, money laundering and forgery of
documents, filed by the Republic of Nigeria on June 23rd, 2000 with the
Attorney General in Geneva, Minton, between 1987 and 1993, following a
secret fraudulent plan 'diverted several billion US dollars to the loss of
the Republic of Nigeria... Robert Minton deposited the diverted money in
various business and private numbered bank accounts'. After the Nigerian
government asked a Geneva bank involved in the matter to freeze Minton's
bank accounts and give information concerning accusations of money
laundering 'Robert Minton met on May 20th, 2000 with the directors of that
bank', the criminal complaint continues. 'To our knowledge he demanded the
immediate transfer of his money and the destruction of documents.'"
Green shaded box on page 2, right column: "Wrocklage ... quasi-accomplice
of a man who is charged with violating half the penal code".
2. that which is printed in the flyer: "Gnadenlose Geldgier"
("Ruthless Avarice")
Column 2: "According to the certified public accountants of the globally
operating firm Arthur Andersen billions (!) of Nigerian oil dollars were
simply stolen during the mentioned period of time. All in all it is said
to be a matter of at least 12 billion US dollars. The ex-military
dictators moved the money to foreign bank accounts by means of banks and
cover companies. The unscrupulous wheeler-dealer Minton was involved in
this money racket, after he and his accessories got hold of illegal inside
knowledge to maximize their profits ... Presently there are a great number
of investigations and hearings dealing with this gigantic fraud scandal
which was carried out using 200 different bank accounts. Only recently, a
further 'vanished' 1.31 billion DM were discovered and frozen by the
Attorney General in Luxembourg."
3. that which is printed in Freiheit issue "Scientology in Schweden
endgültig als Religion anerkannt" (Scientology Finally Recognized as a
Religion in Sweden)
Page 2, 3rd column: "It comes as no surprise that even proven buddies of
dictatorial killer regimes are welcome guests at the Office for the
Protection of the Constitution - that they are 'against Scientology' seems
to be all that matters. Caberta and the Hamburg Department of the
Interior, the latter being responsible for the fight against crime,
recently honored the American Robert Minton with a press conference,
shortly after his close ties to an international money laundering racket of
gigantic proportions became public. As African and English newspapers are
presently reporting, the former Nigerian military dictatorship channeled
several billion (!) US dollars to foreign bank accounts with the support of
Minton and his accessories. This was part of a fraudulent deal that only
superficially had to do with repaying foreign debts."
4. that which is printed in Freiheit issue "Also doch: Caberta nahm
größere Geldsumme!" (It´s true after all: Caberta Took Major Sum of Money)
Page 2, 5th column: "... According to a criminal charge filed by the
Nigerian Republic with the attorney general of Geneva he was accused of
defrauding the country of several hundred million US dollars during his
business transactions with the former Nigerian military dictatorship. The
complaint also accuses Minton of forgery of documents and money
laundering."
The defendants applied to have the complaint dismissed.
They assert that the Republic of Nigeria had actually filed a charge based
on the events in question which took place on 23 June 2001 against the
complainant with the attorney general's office in Geneva and invoke as
evidence the testimony of the attorney general's office or official
information from that agency. Independent of the criminal valuation of the
complainant's conduct, however, they say that their opinion of common fraud
cannot be denied in reference to the complainant's buy-backs. (page
7) Finally they say the complainant gave the creditors false information
as to the non-collectibility of their debts by which means he allegedly
caused them to sell at a fraction of their value. In this way, it was
said, not only the creditors suffered loss, but so had the state of
Nigeria, whose creditworthiness was said to have been decreased due to
being represented as unable to pay. In that the debts were sold from one
company to the next, the nominal value of the debts were said to have
steadily increased. This was said to have raised the suspicion that the
Nigerian Central Bank had made available larger amounts of money than the
creditors had received and that the surplus amounts had been siphoned off
to the advantage of the complainant or the country's government of the
time. The statement contested by the complainant at 1) that he had been
accused of violating half the penal code was said to be justified in the
light of a state attorney's investigation of him - which is not disputed -
by the state attorney's office of the Hamburg state court for bribery and
soliciting favors because he was said to have granted a loan of 100,000 DM
to an Interior Senator's department director.
The defendants believe the accusations published against the complainant
are justified in consideration of the enormous amounts of money involved
and authorized in light of public interest. In their research they relied
upon like-sounding publications in the international press because they do
not operate a private press corporation with its own archive and therefore
would not be subject to the same standards of factuality as full-time
journalists of other media.
Because of further proceedings of the parties, reference is made to the
contents of the memoranda submitted by both parties at the attachments.
(page 8)
Basis of Decision:
The complaint is founded. The complainant has a claim against the
defendants in accordance with sects. 823 para. 1, para. 2, analogous 1004
para. 1 S, 2 BGB in connection with Art. 1 para. 1, 2 para. 1 Basic Law and
sects. 185 ff. StGB, to oblige them to not repeat the statements in
dispute.
1. Regarding the defendants with consideration to complaint items 1) and 4)
and distributing the text in dispute about the complainant allegedly having
a charge filed against him by the Republic of Nigeria and describing the
complainant as a man in the middle of a bog of gigantic commercial fraud
who had been charged with violating half the penal code, their published
statements were illegal, because the defendants -- even if the charge had
been filed -- raised a suspicion that the complainant had done something
against the law; they are not permitted to make this public without also
going into exonerating circumstances to the complainant's favor.
Even if such an accusation would have been filed by the state against the
complainant, the defendants in their publications are not permitted to take
into view only a public interest in explaining and prosecuting any
commercial crimes, but must also bear accountability for the complainant's
personal rights guaranteed by Art. 1 paras. 1 and 2 of Basic Law. At most,
so long as a suspicion exists that the complainant could have done business
fraudulently, they may in the course of their reporting not name only the
incriminating circumstances, but must also include those things which are
in his favor. The defendants have omitted doing that. They have not made
reference to the accusations already having been made the topic of an
investigatory committee of the Republic of Nigeria whose final report (page
9) exonerated the complainant of any wrong-doing, but neither did they
communicate that the complainant disputed the accusations being brought
against him although the complainant had expressed his opinion in the media
which was mentioned in the defendants' article and that these circumstances
were known to the defendants at the time of publication.
Neither is the assertion justified that the complainant had been accused of
violating half the criminal code because the complainant had granted a loan
of 100 thousand DM to a department director of the Hamburg Interior Agency
or that accusations of bribery or soliciting favor had arisen from this
occasion. Apart from the fact that the article in dispute does not at all
refer to the facts of the case, this suspicion is not allowed to be
published according to the standards of the above-named principles, because
it is so baseless as a foundation for the facts described by the
complainants that any public interest, which must include the legal
protection of the complainant, cannot be recognized. Neither have the
complainants, in their response to the complaint, submitted a statement as
to which official dealing the loan was supposed to be related or as to how
the criminal charge was supposed to be justified. Neither is there any
cause to grant them additional time to comment upon the complainant's reply
to make supplemental statements because such a position could have already
followed with their reply to the complaint.
2. It is also just that the complainant protest the material stated in item
2), that he had been involved in juggling accounts or that in the course of
this, money in the amount of about 12 billion dollars had been moved to
foreign accounts in a fraudulent manner.
(page 10)
As concerns this the defendants cannot claim the protection of freedom of
opinion guaranteed by Art. 5, para. 1 of Basic Law, because just by using
the expression "juggling accounts" they have created the impression of how
they evaluate the debt buy-back operation in which the complainant
indisputably participated. In their leaflet though, they did not just make
reference to debt buy-backs, but also to on-going transactions which, just
by the way they were presented, implied a connection with the debt buy-back
because "money had been used in those transactions which it appeared had
been meant to buy back debts." Accusing the complainant of juggling
accounts in that connection alone is illicit in that it can be concluded
that the complainant had something to do with the situation.
In stating that the complainant had cooperated in funneling state money out
of the country to the good of former members of government, the accused are
lacking any proof. The alleged charge by the state of Nigeria which they
referred to could justify suspicion, but not to the doubt-free conclusion
arrived at by the defendant.
Contrary to the opinion represented by the defendants, nothing further can
be concluded about the complainant allegedly being involved in fraudulent
juggling of accounts even though that statement may have been made by other
organs of the press without the complainant taking measures against
them. In the article published by the "Hamburger Morgenpost" on 20 May
2000 entitled "Die Milliarden des Diktators" ("The Dictator's Billions")
and in the article published in "Der Spiegel" news magazine on 11 September
2000, "Charmanter Mohamed" there is no mention of the person of the
complainant. The rest of the English-language articles upon which the
defendants rely cannot be taken into consideration in the standards of
sect. 184 GVG. (page 11) Above this the defendants have not demonstrated
that the complainant had any knowledge of these articles or that he had the
opportunity to take a stand against their content.
3. For the above named grounds, the defendants are also prohibited from
distributing the statements in dispute described in complaint item 3), that
according to reports in the African and English press he is involved in
international money-laundering fraud of gigantic proportions whereby the
former Nigerian military dictators were supported in having several billion
dollars funneled into overseas bank accounts. The defendants themselves
are responsible for having spread these libelous imputations, regardless of
the circumstances, in that they have distributed the reports without having
maintained distance from their content (see Prinz/Peters, media law,
Randnummber 35).
The decision of cost is based on sect. 91 para. 1 ZPO. The decision on the
provisional executability is in accordance with sect. 709 p. 1 ZPO.
/sig/ Mauck
/sig/ Becker
Judge Golland of the state court is not able to sign due to being on
vacation.
/sig/ Mauck
Issued
{signature)
(Seal of the Berlin state court)
Justice employee
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