THIRD SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 53146/99
by Hans HURTER
against Switzerland
The European Court of Human Rights (Third Section), sitting on 21 February 2002 as a Chamber composed of
MrI. Cabral Barreto, President,
MrL. Wildhaber,
MrL. Caflisch,
MrP. Kūris,
MrR. Türmen,
MrsH.S. Greve,
MrK. Traja, judges,
andMrV. Berger, Section Registrar,
Having regard to the above application introduced on 8 September 1999 and registered on 3 December 1999,
Having deliberated, decides as follows:
THE FACTS
The applicant, Hans Hurter, is a Swiss citizen born in 1957. A practising lawyer and notary by profession, he resides in Lucerne, Switzerland.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was representing before the courts of the Canton of Lucerne a client in divorce proceedings against the latter’s wife. In the last resort, the Federal Court (Bundesgericht), after requesting observations from the Court of Appeal (Obergericht) of the Canton of Lucerne, dismissed the client’s public law appeal (staatsrechtliche Beschwerde) on 7 December 1995.
On 17 April 1996, the applicant filed, in his client’s name, a request before the Lucerne District Court (Amtsgericht) for legal aid as well as for the revision of certain measures ordered in the divorce proceedings. Referring to the previous proceedings before the Federal Court he stated in his request:
“By making incorrect statements to the Federal Court, the Court of Appeal has become guilty of procedural fraud and abuse of office.”
On 18 February 1997 the Commission of Justice (Justizkommission) of the Court of Appeal of the Canton of Lucerne filed a disciplinary report (Anzeige) with the Bar Supervisory Commission (Aufsichtsbehörde über die Rechtsanwälte) with the Court of Appeal of the Canton of Lucerne. Therein, the applicant was accused of having claimed excessive lawyer’s fees in these proceedings; of having executed his claims towards the client during the divorce proceedings; of subsequently having filed a request for legal aid; and of having accused the Court of Appeal, in his statement before the Lucerne District Court, of having committed criminal offences. The Commission of Justice, which listed the details of the various fees, requested the Supervisory Commission to examine these matters from the point of view of disciplinary law.
On 21 April 1997 the applicant filed a statement of 20 pages in reply.
On 21 November 1997 the applicant filed with the Supervisory Commission a request to suspend the proceedings; he also included various documents which he asked to be included in the case-file.
On 2 April 1998 the Supervisory Commission, on the basis of Section 12 § 1 of the Bar Act (Anwaltsgesetz) of the Canton of Lucerne, imposed a disciplinary fine of 500 Swiss francs (CHF) on the applicant for having breached his professional duties on a number of occasions. The applicant was also ordered to pay the costs of the proceedings amounting to CHF 1,500.
In its decision the Supervisory Commission considered that the applicant had been entitled to claim, as lawyer’s fees for the divorce proceedings, the sum of CHF 11,200.20, as well as CHF 1,500 for the costs of the public law proceedings before the Federal Court. The applicant, however, had claimed the grossly (krass) excessive amount of altogether CHF 20,061.90, thereby breaching his professional duties. In the Supervisory Commission’s opinion, it was furthermore inadmissible that the applicant had accused the Court of Appeal of having committed criminal offences without such an accusation having been determined in criminal proceedings. In assessing the severity of the disciplinary punishment called for, the Supervisory Commission considered, inter alia, that the Federal Court had already reprimanded the applicant on account of polemical remarks; and that the Court of Appeal of the Canton of Lucerne had previously imposed a procedural fine of CHF 200 on the applicant for having accused the Court President of having manipulated the facts.
This decision was served on the applicant on 22 April 1998. Meanwhile, on 16 April 1998, the applicant had requested the Supervisory Commission to conduct an oral hearing in his case.
Against the decision of the Supervisory Commission of 2 April 1998 the applicant filed a public law appeal, requesting, inter alia, a public hearing. The Federal Court dismissed the public law appeal on 26 February 1999.
In its judgment the Federal Court rejected the applicant’s claim of an oral hearing, holding that Article 6 of the Convention was not applicable to disciplinary proceedings.
Insofar as the applicant complained that the Supervisory Commission had punished him for an offence which was not mentioned in Section 12 § 1 of the Bar Act, the Federal Court considered that the prohibition to charge excessive fees, and the requirement to maintain propriety when dealing with the authorities, were among the basic professional duties of a practising lawyer. After further examination, the Federal Court concluded that these basic rules had not been applied arbitrarily in the present case. It found, inter alia, that the Supervisory Commission had justifiably held that the applicant had executed his claims against his client while the divorce proceedings were still pending, and that behaviour brought the client into a conflict and undermined the relationship of trust between him and his lawyer.
Insofar as the disciplinary fine had been imposed on the applicant because of his remarks about the judges of the Court of Appeal, the Federal Court found:
“A practising lawyer may well criticise the courts; a matter-of-fact statement which is truthful may not be sanctioned in disciplinary proceedings, even if it is disagreeable for third persons. However, the accusation that third persons have committed criminal offences (abuse of office) must in principle be raised by means of a criminal judgment which has entered into force ... As long as there is no such judgment, the statements must be made in a cautious manner and it must be made clear that for the time there is only a suspicion ...”
B. Relevant domestic law (and practice)
Section 12 § 1 of the Bar Act of the Canton of Lucerne provides:
“The Supervisory Office shall punish (ahndet) breaches of professional duties by practising lawyers. It can impose disciplinary punishment on such a lawyer and, if necessary, give him compulsory instructions.”
According to Section 13 of the Bar Act the disciplinary measures which may be imposed are a reprimand; a fine up to CHF 5,000; and the either temporary or permanent termination of the authorisation to practice the profession.
Section 4 of the Code of Criminal Procedure (Strafprozessordnung) of the Canton of Lucerne provides that the criminal prosecution, inter alia, of judges of the Court of Appeal requires an authorisation by the Parliament (Grosser Rat) of the Canton of Lucerne.
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention that in these proceedings he did not have a public hearing.
2. Under Article 6 § 1 of the Convention the applicant complains of the criminal immunity of the Court of Appeal judges, thus preventing their criminal prosecution and any concomitant civil claim for damages against them.
3. The applicant also complains under Article 6 § 1 of the Convention that the Bar Act of the Canton of Lucerne was insufficiently precise in that it did not specify the disciplinary offence of excessive fees levelled against him.
4. Also under Article 6 § 1 of the Convention the applicant complains of the arbitrary and incorrect decision of the Federal Court of 26 February 1999, inter alia, in the manner in which it dealt with his various fees in the divorce proceedings, and that that court did not permit him to submit relevant evidence. He complains in particular that there was no evidence confirming the Federal Court’s statement in its decision of 26 February 1999 in which it was found that a lawyer would be undermining the relationship of trust between himself and his client if he was representing the latter in proceedings and at the same time executing his fees towards that client.
5. Under Article 10 of the Convention the applicant complains of a breach of his freedom of opinion in that he was fined for having criticised the Court of Appeal.
THE LAW
1. The applicant raises various complaints under Article 6 § 1 of the Convention about the unfairness of the proceedings and the lack of a public hearing. This provision states, insofar as relevant:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] tribunal ...”
(a) Under this provision the applicant complains that in the proceedings at issue he did not have a public hearing.
The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint, and that it is therefore necessary, in accordance with Rule 54 § 3 of the Rules of Court, to give notice of this part of the application to the respondent Government.
(b) The applicant further complains under Article 6 § 1 of the Convention of the criminal immunity of the Court of Appeal judges which prevents their criminal prosecution. He also complains that the Bar Act of the Canton of Lucerne was insufficiently precise in that it did not specify the disciplinary offence of excessive fees levelled against him. Finally, he complains of the arbitrary and incorrect decision of the Federal Court of 26 February 1999.
The Court finds it unnecessary to examine whether or not Article 6 § 1 of the Convention is applicable in respect of these complaints, since they are in any event inadmissible for the following reasons:
In so far as the applicant complains of a lack of access to court because of the immunity of the judges of the Court of Appeal of the Canton of Lucerne, the Court recalls that the right of access to court within the meaning of Article 6 § 1 of the Convention may be subject to limitations which may nevertheless not restrict or reduce the access left to the individual to such an extent that the very essence of the right is impaired (see the Philis v. Greece judgment of 27 August 1991, Series A no. 209, pp. 20-21, § 59). In the present case, the limitation complained of, serving the authority and the independence of the judiciary, was not insurmountable in that, according to Section 4 of the Code of Criminal Procedure of the Canton of Lucerne, Parliament may at any time authorise the criminal prosecution of judges of the Court of Appeal.
The applicant complains further that the Bar Act was insufficiently precise in that it did not specify the disciplinary offence of excessive fees levelled against him. The Court notes the judgment of the Federal Court of 26 February 1999 according to which the prohibition to charge excessive fees, and the requirement to maintain propriety when dealing with the authorities were among the basic professional duties of a practising lawyer within the meaning of Section 12 § 1 of the Bar Act. The Court has moreover had regard to the detailed disciplinary report of the Commission of Justice of the Canton of Lucerne of 18 February 1997 and to the lengthy statement which the applicant filed in reply on 21 April 1997. As a result, the Court considers that the applicant was able fully to understand the extent of the accusations levelled against him with a view to preparing an adequate defence, as required by Article 6 of the Convention (see Mattoccia v. Italy, no. 23969/94, § 60, ECHR 2000-IX).
The applicant moreover complains of the arbitrary and incorrect decision of the Federal Court. The Court recalls that its function is not to deal with errors of fact or of law allegedly committed by a national court unless and insofar as they may have infringed rights and freedoms protected by the Convention (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 45). Moreover, insofar as the applicant may be understood as complaining of the assessment of evidence, it is, as a rule, for the national courts to assess the evidence before them, the Court’s task being to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (see the Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10, § 26). In the present case, the Bar Supervisory Commission and the Federal Court carefully examined the accusations levelled against the applicant. There is no indication that the applicant, who was himself a lawyer, could not duly present in his submissions to the Bar Supervisory Commission and later to the Federal Court his point of view or any evidence which he considered relevant.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.
2. Under Article 10 of the Convention the applicant complains of a breach of his freedom of opinion in that he was fined for having criticised the Court of Appeal. Article 10 states:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...
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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
In the Court’s opinion, the disciplinary fine amounted to an “interference” with the applicant’s exercise of his freedom of expression within the meaning of Article 10 § 1 of the Convention. In examining the justification for this interference, the Court notes that the fine was based on Section 12 § 1 of the Bar Act of the Canton of Lucerne, which lists the sanctions for breaches of professional duties by practising lawyers. The interference was, therefore, “prescribed by law” within the meaning of Article 10 § 2 of the Convention. Moreover, the interference pursued a legitimate aim for the purposes of Article 10 § 2 of the Convention, namely, “maintaining the authority and impartiality of the judiciary”.
In assessing whether the interference was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention, the Court recalls 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 (see the Casado Coca v. Spain judgment of 24 February 1994, Series A no. 285-A, p. 21, § 54). Regard being had to the key role of lawyers in this field, it is furthermore legitimate to expect them to contribute to the proper administration of justice, and thus to maintain public confidence in them (see the Schöpfer v. Switzerland judgment of 20 May 1998, Reports 1998-III, p. 1053, § 29).
In the present case, the applicant had not in principle been prohibited from making the statements at issue. Thus, the Federal Court pointed out in its judgment of 26 February 1999, criticism, even if it shocked third persons, was admissible, though as long as no criminal conviction had been pronounced, it had to be made clear that for the time being there was only a suspicion. Moreover, the Court notes the seriousness and general nature of the charges levelled by the applicant against the judges of the Court of Appeal of the Canton of Lucerne, which was hardly compatible with the contribution which lawyers are expected to make to maintaining public confidence in the judiciary (see the Schöpfer judgment, cited above, p. 1053, § 31). Finally, the fine of CHF 500 imposed on the applicant was at the lower end of the scale of penalties provided for in the Bar Act of the Canton of Lucerne.
Having regard to the margin of appreciation left to States in such matters and to the care with which the domestic authorities balanced the various interests, the Court finds that the interference with the applicant’s rights under Article 10 of the Convention could reasonably be considered “necessary in a democratic society ... for maintaining the authority and impartiality of the judiciary”. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.
For these reasons, the Court
Decides unanimously to adjourn the examination of the applicant’s complaint under Article 6 § 1 of the Convention about the lack of a public hearing;
Declares by a majority the remainder of the application inadmissible.
Vincent BergerIreneu Cabral Barreto
RegistrarPresident
Full & Egal Universal Law Academy