THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 66357/01
by Klaus Jürgen BÖHM
against Germany
The European Court of Human Rights (Third Section), sitting on 16 December 2003 as a Chamber composed of
MrI. Cabral Barreto, President,
MrG. Ress,
MrL. Caflisch,
MrP. Kūris,
MrR. Türmen,
MrK. Traja,
MrsA. Gyulumyan, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 1 February 2001,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Klaus Jürgen Böhm, is a German national, who was born in 1943 and lives in Königstein. He is represented before the Court by Mr Kleine-Kosak, a lawyer practising in Freiburg im Breisgau.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, a tax consultant and accountant, represented mainly low-income employees or foreigners in proceedings before the Hessian Tax Court (Hessisches Finanzgericht). In the course of these proceedings he came into conflict with R., judge and subsequently presiding judge of the competent senate of the Tax Court.
In the beginning of 1988 judge R. informed the applicant on two occasions by telephone that the court had repeatedly warned him about his behaviour vis-à-vis the Court.
On 8 March 1988, during the suspension of a hearing, the judges, among them judge R., mentioned in the applicant’s absence the possibility to bring the proceedings to an end by putting the applicant under pressure and imposing on him the costs of the proceedings or of an expert opinion. Thereafter the applicant successfully challenged the former presiding judge for bias.
Subsequently, the Tax Court objected to the validity of the powers of attorney submitted by the applicant and excluded him from representing his clients in the further proceedings. On the applicant’s appeal, the Federal Tax Court (Bundesfinanzhof) quashed the decisions by the Hessian Tax Court given in this respect and confirmed the validity of the applicant’s mandate.
On another occasion, in reply to a question of the president of the Tax Court how to proceed with the numerous cases brought by the applicant, judge R. declared at a meeting of the judges of the Hessian Tax Court held on 22 August 1990 that, as a matter of course, these cases would be disposed of and sent to Munich.
On 12 and 14 November 1991, following various procedural requests and challenges for bias filed by the applicant, the Tax Court refused to accept the applicant as representative acting on behalf of his clients in further proceedings on the ground that he was unable or unwilling to make adequate oral or written submissions. On 2 December 1992 the Federal Tax Court quashed this decision. The applicant subsequently challenged judge R. for bias in numerous other proceedings.
In letters of 1 and 12 February 1996, the applicant wrote to the Hessian Tax Court, among others, that judge R. had a hostile attitude to law and knowingly accepted perversion of justice. Furthermore, in a document of 1 February 1996, he compared judge R. to a judge committed to the methods of the Reichs Tax Court (Reichsfinanzhof) or the People’s Court (Volksgerichtshof).
On 3 April 1996 the applicant asked a court official to tell judge R. that he was feeble-minded for having fixed a very short time-limit for the submission of numerous documents that had so far only been sent by fax.
On 7 April 1998, the Kassel District Court (Amtsgericht) convicted the applicant for defamation (Beleidigung) in three cases, in accordance with Article 185 of the German Penal Code, and imposed a fine of 3,000 German Marks upon him.
On 29 March 1999 the Kassel Regional Court (Landgericht) dismissed the applicant’s appeal and, upon the public prosecutor’s appeal, increased the fine to 4,800 German Marks. It found that the applicant had tarnished the reputation of judge R. in that, firstly, he had accused him of perversion of justice, secondly, compared him to a judge of the People’s Court and, thirdly, characterised him as feeble-minded. As regards the applicant’s defence that he had acted for the protection of his clients’ legitimate interests, the Court considered that the insulting remarks at issue had been unnecessary and inappropriate. The applicant could have made use of the available legal remedies.
On 17 Mai 2000, the Frankfurt Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal on points of law as being ill-founded.
Sitting as a committee of three judges, the Federal Constitutional Court (Bundesverfassungsgericht) decided on 27 July 2000 not to entertain the applicant’s constitutional complaint.
B. Relevant domestic law
Article 185 of the Penal Code provides:
“Defamation shall be punished with imprisonment for not more than one year or a fine and, if the defamation is committed by means of violence, with imprisonment for not more than two years or a fine.”
Article 193 of the Penal Code provides:
“Critical judgments about scientific, artistic or commercial achievements, similar utterances which are made in order to exercise or protect rights or to safeguard legitimate interests, as well as remonstrance and reprimands of superiors to their subordinates, official reports or judgments by a civil servant and similar cases are only punishable to the extent that the existence of an defamation results from the form of the utterance of the circumstances under which it occurred.”
COMPLAINT
The applicant complains under Article 10 of the Convention of his conviction for defamation by the German courts. He considers that the impugned statements did not go beyond the limits of permissible criticism regarding the conduct of judge R.
THE LAW
The applicant complained that his conviction for defamation infringed his right to freedom of expression, as guaranteed by Article 10 of the Convention, the relevant part of which provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to ... impart information and ideas without interference by public authority ...
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 ... for the protection of the reputation or rights of others ... or for maintaining the authority and impartiality of the judiciary.”
The Court finds that the applicant’s conviction for defamation constituted an interference with the exercise of his freedom of expression. Such interference is in breach of Article 10 unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10 and is “necessary in a democratic society” for achieving such an aim or aims.
The Court considers that the interference was prescribed by law, namely Article 185 of the German Penal Code, and that it served the legitimate aims to protect the reputation or rights of others and to maintain the authority of the judiciary, within the meaning of Article 10 § 2 of the Convention.
It remains to be determined whether the interference complained of was “necessary in a democratic society” for achieving the above-mentioned aims.
In its Steur v. the Netherlands judgment (no. 39657/98, § 36, 28 October 2003) the Court recalled the applicable principles which were stated in the Nikula v. Finland judgment (no. 31611/96, § 44, 21 March 2002) as follows (loc. cit., §§ 44–45, case-law references omitted):
“44. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which she made them. In particular, it must determine whether the interference in question was ‘proportionate to the legitimate aims pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts.
45. The Court reiterates that the special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. Such a position explains the usual restrictions on the conduct of members of the Bar. Moreover, the courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence. Regard being had to the key role of lawyers in this field, it is legitimate to expect them to contribute to the proper administration of justice, and thus to maintain public confidence therein (...).”
The Court reiterates that in their capacity as officers of the court lawyers are not only subject to restrictions on their conduct; they also benefit from exclusive rights and privileges which may vary from jurisdiction to jurisdiction – among them, usually, a certain latitude regarding arguments used in court – but their conduct must be discreet, honest and dignified (Casado Coca v. Spain, judgment of 24 February 1994, Series A no. 285-A, p. 19, § 46).
These principles likewise apply to the applicant. As a tax consultant he represented his clients before the tax offices and tax courts and in this way acted as an intermediary between the public and the tax authorities just as an attorney does in the general judicial system. He was accordingly subject to monitoring and supervisory powers vested in tax consultant chambers that are comparable to those of bar councils. In this way he assumed a role comparable to that of a lawyer.
The Court finds that the insulting tone of the applicant’s assertions, among others, accusing judge R. of perversion of justice, one of the most serious offences a member of the judiciary can commit, were not compatible with the function of a tax consultant as an organ of the administration of justice. Furthermore, the disparaging statements made by the applicant amounted to defamation of judge R. and exceeded what may be considered acceptable in the circumstances of the present case even if the judge’s conduct was open to criticism.
Having regard to the foregoing, the Court considers that the applicant’s criminal conviction was not disproportionate to the legitimate aim pursued and that the reasons advanced by the domestic courts were sufficient and relevant to justify such interference. The latter could thus reasonably be considered necessary in a democratic society for the protection of the reputation or rights of others and for maintaining the authority and impartiality of the judiciary. In sum, there is no appearance of a breach of Article 10 of the Convention.
It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent BergerIreneu Cabral Barreto Registrar President
Full & Egal Universal Law Academy