[TRANSLATION]
...
THE FACTS
The applicant [Mr Peter Döring] is a German national who was born in 1946 and lives in Magdeburg (Germany). He was represented before the Court by Mrs Kleine-Cosack, of the Freiburg Bar.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
From 1972 to 1990 the applicant was a judge in the former GDR (German Democratic Republic) and, in particular, President of the Criminal Division of the District Court (Vorsitzender des Strafsenats des Bezirksgerichts) of Magdeburg from 1986 to 1989.
In a decision of 4 April 1990 the Ministry of Justice of the former GDR allowed him to be admitted as a member of the Bar from 1 May 1990 onwards.
In a decision of 20 July 1995 the Land of Saxony-Anhalt’s Ministry of Justice disbarred him under section 1(2) of the 1992 Act on the verification of admissions as a member of the Bar and appointments as a notary or a lay judge (Gesetz zur Prüfung von Rechtsanwaltszulassungen, Notarbestellungen and Berufungen ehrenamtlicher Richter — “the RNPG” — see “Relevant domestic law” below) on the ground that he had violated the principles of humanity and the rule of law (da er gegen Grundsätze der Menschlichkeit und Rechtsstaatlichkeit verstossen hat).
The Ministry accused him, in particular, of having in fifteen cases sentenced to approximately three years’ imprisonment persons accused of having merely expressed the wish to leave the former GDR to institutions and organisations of the FRG (Federal Republic of Germany), such as the FRG’s Ministry of Inter-German Relations, the Frankfurt International Human Rights Society and a German second channel (ZDF) television programme.
The Ministry also accused him of having imposed a sentence of six years and six months’ imprisonment for aiding illegal border-crossing (Grenzschleusung) and one of two years and ten months for incitement to subversion (staatsfeindliche Hetze).
In a judgment of 9 May 1995 the Magdeburg Regional Court (Landgericht) acquitted the applicant of the charge of administering justice perversely (Rechtsbeugung).
In a decision of 14 March 1996 the Land of Saxony-Anhalt Court’s Special Section for Matters relating to Lawyers (Senat des Anwaltsgerichtshofs) upheld the applicant’s disbarment.
In a decision of 4 February 1997 the Federal Court of Justice’s Special Section for Matters relating to Lawyers (Senat für Anwaltsachen des Bundesgerichtshofs) dismissed an appeal by the applicant.
In the opinion of the Federal Court, there was a serious violation (beachtlicher Verstoss) of section 1(2) of the Act mentioned above where a lawyer, in his previous duties as a judge, had adopted an extreme construction (bei exzessiver Auslegung und Interpretation) of the relevant provisions of the former GDR’s criminal code or the code of criminal procedure to the disadvantage of an accused or had started a prosecution showing contempt for human beings (menschenverachtende Verfolg) even though in the eyes of the law his conduct had not been so culpable as to constitute perverse administration of justice (Rechtsbeugung).
The Federal Court held that in the present case the applicant, while in the high-ranking position of president of a criminal division, had for years voluntarily taken part in decisions, which, at least as a whole (in der Gesamtschau), had shown contempt for human beings and had been contrary to justice. The applicant had applied laws which had been contrary to the rule of law, to the former GDR’s Constitution and to the international conventions to which the former GDR had been a party. In all cases, hearings had been held in camera in a kind of secret trial and heavy prison sentences had been imposed on citizens who merely wished to leave the former GDR, which often meant the destruction of their personal and social lives.
In the opinion of the Federal Court, those criticisms were still valid because the applicant had flagrantly violated human rights by taking part in politically-motivated criminal justice (politische Strafjustiz) for years, thus assisting the apparatus of State repression. Failure to penalise that would have met with the incomprehension, not only of the victims but also of the population in general and would have undermined the confidence of the public, especially people from the former GDR (for whom politically-motivated criminal justice still remained a painful memory), in the integrity of the legal profession. The Federal Court held that even though the applicant had practised the profession of lawyer for six years without fault, that had been too short a period to allow the applicant’s interest in practising his profession to override the public interest in confidence in the integrity of the legal profession.
In a decision of 28 May 1997 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three members, declined to accept the applicant’s constitutional appeal for adjudication.
In the opinion of the Constitutional Court the appeal was not of fundamental constitutional importance, since it had already decided the issue of the constitutionality of section 1(2) of the 1992 Act on the verification of admissions as a member of the Bar and appointments as a notary or a lay judge. The disbarment of lawyers who, because of their participation in acts manifestly contrary to justice committed under the regime of the German Unified Socialist Party (Beteiligung an eklatanten Unrechtshandlungen des SED-Regimes), were not worthy of confidence and were a burden for the administration of justice, was in accordance with the Basic Law (Grundgesetz).
The Constitutional Court added that both the interpretation of that section by the Federal Court of Justice — which had looked beyond the simple fact of the former judge’s involvement in politically-motivated criminal justice (Befassung mit politischem Strafrecht) in that it had also examined the actual application of the law and had held that for the offence to be made out the judge must have adopted an extreme construction and application of the relevant provisions at the material time, to the detriment of the accused — and its application of the section in the present case had also been in accordance with the Basic Law.
As to the applicant’s submissions that the courts had not sufficiently taken into account the conditions under which the former-GDR’s court system had been functioning and that it had been impossible for him to act differently at the time, the Constitutional Court held that the applicant should have raised and supported those arguments in the ordinary courts, which he had failed to do. In that connection, he should, in particular, have pleaded in the relevant courts the actual circumstances which had led him to take part in politically-motivated trials, and explained whether and under what conditions he could have withdrawn and what would have been the consequences for him had he departed from the habitual practice in criminal cases and had acted in favour of the accused.
B. Relevant domestic law
Article 19 of the German Unification Treaty (Einigungsvertrag) of 31 August 1990 provided that the former GDR’s administrative decisions remained in effect but could be set aside if they were incompatible with the principles of the rule of law (mit rechtstaatlichen Grundsätzen unvereinbar).
German reunification itself took effect on 3 October 1990.
Section 1(2) of the Act of 24 July 1992 on the verification of admissions as a member of the Bar and appointments as a notary or a lay judge provides:
“Permission to become a member of the Bar granted by the Ministry of Justice of the former GDR or by admission to the College before 15 September 1990 shall be struck down where before his admission as a member of the Bar the lawyer concerned behaved in a way that made him unworthy to practise the profession of lawyer, having violated the principles of humanity or the rule of law, particularly as a member of or unofficial collaborator with the State security services.”
(“Vor dem 15. September 1990 durch Aufnahme in das Kollegium oder durch den Minister der Justiz der Deutschen Demokratischen Republik ausgesprochene Zulassungen zur Rechtsanwaltschaft werden mit Wirkung für die Zukunft zurückgenommen, wenn sich der Rechtsanwalt vor seiner Zulassung eines Verhaltens schuldig gemacht hat, das ihn unwürdig erscheinen läßt, den Beruf des Rechtsanwalts auszuüben, weil er gegen Grundsätze der Menschlichkeit oder der Rechtsstaatlichkeit insbesondere im Zusammenhang mit einer Tätigkeit als hauptamtlicher oder inoffizieller Mitarbeiter des Staatssicherheitsdienstes verstoßen hat.”)
COMPLAINTS
1. The applicant complained of his disbarment by the Land of Saxony-Anhalt’s Ministry of Justice, which was upheld by the courts, pursuant to section 1(2) of the 1992 Act on the verification of admissions as a member of the Bar and appointments as a notary or a lay judge for violation of the principles of humanity and the rule of law. He alleged that those decisions infringed his right to the peaceful enjoyment of his possessions secured in Article 1 of Protocol No. 1.
2. He also submitted that those decisions infringed his right to equal treatment in respect of his right to the peaceful enjoyment of his possessions and that they were therefore contrary to Article 14 of the Convention taken together with Article 1 of Protocol No. 1.
THE LAW
1. The applicant complained of his disbarment by the Land of Saxony-Anhalt’s Ministry of Justice, upheld by the courts, pursuant to section 1(2) of the 1992 Act on the verification of admissions as a member of the Bar and appointments as a notary or a lay judge, on the ground that he had violated the principles of humanity and the rule of law. He alleged that those decisions infringed his right to the peaceful enjoyment of his possessions secured in Article 1 of Protocol No. 1, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The applicant submitted that the interference complained of was not provided for by law as he had not violated the principles of humanity and the rule of law, as required by section 1(2) of the 1992 Act on the verification of admissions as a member of the Bar. The interference had also been disproportionate, because his disbarment had taken place seven years after he had been admitted as a member of the Bar and it was not apparent how such a measure, which had gratified the desire of a minority for revenge and had led to the destruction of his existence, had been justified by a pressing social need.
The Court reiterates that “Article 1 in substance guarantees the right of property...”. It comprises “three distinct rules”: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property by enforcing such laws as they deem necessary in the general interest ... However, the three rules are not “distinct” in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, inter alia, the Tre Traktörer AB v. Sweden judgment of 7 July 1989, Series A no. 159, pp. 21-22, § 54, and the Fredin v. Sweden (no.2) judgment of 18 February 1991, Series A no. 192, p. 17, § 51, and Olbertz v. Germany, (dec.) no. 37592/97, ECHR 1999-V).
The Court considers that the right relied on by the applicant can be likened to the right of property in Article 1 of Protocol No. 1: by setting up his law practice and running it successfully, the applicant had built up a clientèle; this had in many respects the nature of a private right and constituted an asset, and hence a possession within the meaning of the first sentence of Article 1 (see, mutatis mutandis, the Van Marle and Others v. the Netherlands judgment of 26 June 1986, Series A no. 101, p. 13, § 41, the H. v. Belgium judgment of 30 November 1987, Series A no. 127-B, p. 34, § 47(b), and the Olbertz decision, cited above).
In the instant case the disbarment of the applicant, who had to close down his law practice, indisputably led to the loss of his clientèle and income. Consequently, there was interference with his right to the peaceful enjoyment of his possessions. This was a measure to control the use of property, which falls to be considered under the second paragraph of Article 1 of Protocol No. 1, as the Court has held in similar cases (see, mutatis mutandis, the Tre Traktörer and Fredin judgments cited above p. 22, § 55, and p. 15, § 47, respectively, and the Olbertz decision cited above).
In that connection, the fact that the applicant was admitted as a member of the Bar by the authorities of the former GDR, a State which no longer exists and to which the Convention did not apply, is immaterial, because his disbarment, that is to say the interference complained of, was founded on court decisions delivered in the FRG courts after reunification, and the Convention applied at the time.
It is likewise to be noted that the validity of permission to be admitted as a member of the Bar granted by the former GDR’s administrative authorities was subject to certain conditions enunciated, in particular, in Article 19 of the German Unification Treaty (Einigungsvertrag — see “Relevant domestic law” above) and of which the 1992 Act on the verification of admissions as a member of the Bar and appointments as a notary or a lay judge (see “Relevant domestic law” above) could be considered a concrete expression.
As to the lawfulness of the interference, the Court notes first of all that the disputed measure was based on section 1(2) of the 1992 Act. That provision expressly provides for annulment of admissions to the Bar made before 15 September 1990 when the lawyer, prior to his admission, had conducted himself in such a way as to become unworthy of practising the profession of lawyer by violating the principles of humanity and the rule of law. Construing that section the way the Federal Court of Justice and the Federal Constitutional Court did does not appear arbitrary. Moreover, the Court reiterates that it has only limited power to review domestic law and it is in the first place for the national authorities to interpret and apply their laws (see, inter alia, the Tre Traktörer judgment cited above, pp. 22-23, § 58).
As to the purpose of the interference, the Court considers that in the instant case the interference pursued an aim that was in the general interest, since it appeared to be legitimate for the FRG to review retrospectively the behaviour of persons, who after reunification, were authorised to practise the professions of lawyer, notary or lay judge throughout Germany, and who, by the nature of their work, were required to meet particularly high standards of integrity and morality, given that they were considered to be officers of the court and guarantors of the rule of law. Those checks were therefore designed to protect the public by ensuring the integrity and morality of those who practised the profession of lawyer in particular.
Lastly, the Court has to consider the proportionality of the interference. With respect to this, it reiterates that the second paragraph of Article 1 of Protocol No.1 must be read in the light of the principle in the first sentence of the Article. From that sentence, the Court has derived the requirement that an interference must strike a “fair balance” between the demands of the general interest of the community and the requirements of the individual’s fundamental rights (see, inter alia, the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 26, § 69). The concern to achieve this balance is reflected in the structure of Article 1 as a whole, and hence also in the second paragraph. There must be a reasonable relationship between the means employed and the aim pursued (see the Tre Traktörer judgment cited above, p. 23, § 59).
In the instant case, the Court notes first of all that the interference complained of was plainly a serious one, seeing that it led to the applicant’s law practice being closed, thereby indisputably causing him damage. Furthermore, the disbarment by the FRG’s authorities and courts took place five years after his admission as a member of the Bar by the former GDR’s administrative authorities, not for administering justice perversely, but for having, in the decisions which he had delivered as a judge taken as a whole, violated the principles of humanity and the rule of law.
On the latter point, the Federal Constitutional Court criticised the applicant for failure to raise and support in the ordinary courts his arguments dealing with the conditions under which the former GDR’s court system had functioned and the fact that it had been impossible for him to have acted otherwise at the relevant time.
In that connection, the Court notes that the question arises whether the applicant has exhausted domestic remedies, given that Article 35 § 1 of the Convention requires complaints which are intended to be made to the European Court of Human Rights in Strasbourg to have been made to the competent domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34). The Court does not however find it necessary to settle that issue since in the instant case the interference complained of was not disproportionate to the legitimate aims pursued.
As already indicated above, the Court notes first of all that the admission to the Bar of the applicant, who had previously been a judge, occurred during a transitional period which was wholly exceptional in Germany’s history. The FRG wanted to make the validity of the permission given by the former GDR’s administrative authorities for admission to the Bar subject to certain conditions, enunciated in, among other provisions, Article 19 of the German Unification Treaty, establishing the incorporation of the former GDR into the FRG, in order to ensure that lawyers who had practised their profession in the former GDR satisfied the same criteria as those required for lawyers in the FRG. The passing of the new act in 1992 had the objective of retroactively checking the behaviour of persons who, because of the nature of their work in a state governed by the rule of law, are required to meet particularly high standards of integrity and morality.
Secondly, the Court notes that the domestic courts closely examined the nature of the accusations against the applicant before concluding that even though he had not been guilty of administering justice perversely, he had nevertheless taken part in acts manifestly contrary to justice which made him unworthy to practise the profession of lawyer. The courts found that for many years the applicant had held a high position as president of a criminal division, during which time he had sentenced to long prison terms citizens who merely wished to leave the former GDR and had made contact with organisations of the FRG to that end, and he had done this in quasi-secret proceedings which had taken place in camera. Lastly, the courts had weighed the applicant’s interest in continuing to practise his profession after having been a member of the Bar for six years against the need to preserve the confidence of the public, especially persons from the former GDR, in lawyers, before giving the public interest precedence over that of the applicant.
The Court considers that the “burden” placed on the applicant, though heavy, must be weighed against the general interest of the community, regard being had to the exceptional circumstances in which both the admission and disbarment occurred. In that context, the States enjoy a margin of appreciation (see, mutatis mutandis, the Tre Traktörer judgment cited above, p. 24, § 62, and the Olbertz decision cited above).
Taking all those factors into consideration, and especially the exceptional circumstances of German reunification, the Court considers that the respondent State did not go beyond its margin of appreciation and, regard being had to the legitimate aims pursued, did not fail to strike a “fair balance” between the applicant’s economic interests and the general interest of German society.
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2.The applicant also maintained that the decisions complained of infringed his right to equal treatment in respect of his right to the peaceful enjoyment of his possessions and that they were therefore contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1.
Article 14 of the Convention reads:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The applicant submitted that his disbarment, which occurred as part of the general policy of checking permission granted for the admission to the Bar of lawyers from the former GDR and amounted to an inter-German settling of scores, constituted political discrimination, which had not been based on any objective and reasonable justification.
Having regard to its line of reasoning under Article 1 of Protocol No. 1, the Court considers that no separate issue arises under Article 14 of the Convention.
It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Full & Egal Universal Law Academy