THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 50364/99
by Peter Felix KUBLI
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,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 14 June 1999,
Having deliberated, decides as follows:
THE FACTS
The applicant, Peter Felix Kubli, is a Swiss citizen born in 1954. A practising lawyer by profession, he resides in Küsnacht in Switzerland.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1997 a certain P.A. reported the applicant to the Bar Supervisory Commission (Aufsichtskommission über die Rechtsanwälte) at the Court of Appeal (Obergericht) of the Canton of Zurich for having divulged to a third person, V.R., a secret contract concluded between him and the applicant. Disciplinary proceedings were thereupon instituted against the applicant.
On 25 August 1997 the applicant filed his submissions, requesting termination of the disciplinary proceedings or alternatively a public hearing. Therein he stated, inter alia, that certain documents had been confiscated in his office by the “criminal mafia District Attorney XY” (durch den kriminellen Mafia-Bezirksanwalt) who, together with another lawyer, were “assistants and servants of the Dutch mafia” (Hilfspersonen und Zudiener der holländischen Mafia). He further stated that XY “would be capable of any disgraceful act” (zu jeder Schandtat fähig). It transpires that XY was not directly involved in these proceedings, though the applicant suspected that the secret contract was among the documents confiscated by XY who had then passed them on to V.R.
On 2 October 1997 the Bar Supervisory Commission terminated the disciplinary proceedings as the applicant had committed the contested act, not as a practising lawyer, but as a private person.
On the other hand, the Commission found that the applicant’s submissions of 25 August 1997 were improper and disturbed the proceedings in that they contained grossly defamatory remarks against persons not involved in the proceedings. The Commission fined the applicant 800 Swiss francs (CHF), relying on S. 2 § 3 and S. 4 § 2 of the Disciplinary Punishment Act (Ordnungsstrafengesetz) and S. 328 of the Code of Criminal Procedure (Strafprozessordnung) of the Canton of Zurich.
The applicant filed an appeal with the Court of Appeal of the Canton of Zurich, submitting that the fine imposed amounted to a punishment within the meaning of Article 6 of the Convention and that he could prove that the allegedly defamatory remarks were true. The Court of Appeal dismissed the appeal on 10 February 1998.
On 15 December 1998 the Federal Court (Bundesgericht) dismissed the applicant’s public law appeal (staatsrechtliche Beschwerde). The court, referring to the Court’s judgments in the Ravnsborg and Putz cases, considered that an oral hearing was not required since the proceedings were not criminal in character and Article 6 of the Convention did not apply (see, respectively, the judgments of 23 March 1994, Series A no. 283-A, p. 28 et seq., and of 22 February 1996, Reports of Judgments and Decisions 1996-I, p. 324 et seq.). The fine imposed on the applicant was of a similar amount as in those cases. In the Federal Court’s opinion, it was irrelevant that the applicant was not disciplined as a person subject to bar supervision, since the Disciplinary Punishment Act applied to all persons appearing before the authorities. It equally played no part that the conduct disciplined could be prosecuted as defamation on penal grounds, since the fine at issue merely concerned improper procedural conduct.
Insofar as the applicant complained that the fine breached his right to freedom of opinion, the Federal Court found that the Disciplinary Punishment Act served as a legal basis for the interference with the applicant’s rights under this provision. The statements employed by the applicant appeared defamatory and could therefore be considered as breaching the condition of “required decency” (gebotener Anstand) stipulated in S. 2 § 3 of the Act . The Federal Court further considered that there was in principle a considerable public interest in establishing any connections between magistrates and criminal organisations. However, in the present case the applicant’s fine was justified in that the proof of truth had as a matter of principle to be established by means of a legally binding criminal conviction. Where such a conviction had not yet occurred, the statements had to be formulated in a cautious manner and it had to be made clear that for the time there was only a suspicion.
B. Relevant domestic law
The Disciplinary Punishment Act of the Canton of Zurich of 1866 concerns persons dealing with administrative and judicial authorities, the latter being competent to issue “disciplinary sanctions” (Disziplinarvergehen, S. 1). S. 2 lists the disciplinary breaches, inter alia, in § 3: “the breach of common decency required for official acts” (Verletzung des durch die gute Sitte für amtliche Handlungen gebotenen Anstandes). S. 4 lists, insofar as relevant, the types of disciplinary punishment, namely admonitions (§ 1) and fines (§ 2). S. 4a refers, in respect of the amount, execution and commutability of the fine, to S. 48 §§ 2 and 3 and S. 49 of the Swiss Penal Code (Strafgesetzbuch).
According to S. 328 of the Code of Criminal Procedure of the Canton of Zurich, the cantonal administrative authorities may order, insofar as competent, fines up to CHF 1,000.
S. 48 §§ 2 and 3 of the Swiss Penal Code (Strafgesetzbuch) provide, inter alia, that the fine must be proportionate, and that it becomes obsolete if the person concerned dies. S. 49 provides, inter alia, that if the fine is not paid within three months, the amount may be forcibly executed (§§ 1 and 2) or that the fine may be commuted into a prison sentence (§ 3). If the fine is commuted into a prison sentence, CHF 30 correspond with one day’s imprisonment, with a maximum prison sentence of three months.
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention that he did not have an oral hearing in these proceedings in which he was punished for defamation. He was also not duly heard in that the authorities failed sufficiently to substantiate why he had breached the honour of third persons. Under Article 6 § 3 (a) of the Convention he complains that he was not duly informed of the charges levelled against him.
The applicant submits that Article 6 is applicable to the proceedings at issue. Thus, the Disciplinary Punishment Act of the Canton of Zurich contains typical provisions of substantive penal law, and indeed, defamation is an offence under the Penal Code. It is irrelevant in this context that the fine is not entered into the Criminal Register (Strafregister).
2. Under Article 10 of the Convention the applicant at length complains that he was punished and censored on account of statements which were made in the public interest, namely the fight against crime. He claims that District Attorney XY had actually been seen together with the head of the Dutch mafia “Octopus”. He submits that S. 2 § 3 of the Disciplinary Punishment Act could not serve as a legal basis as it was too general. It was furthermore neither accessible, the consequences could not be foreseen, and it had been arbitrarily interpreted by the domestic courts.
THE LAW
1. The applicant raises various complaints under Article 6 § 1 of the Convention about the unfairness of the proceedings and that he did not have a public hearing. This provision states, insofar as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] tribunal ...”
In order to determine whether Article 6 was applicable under its “criminal” head, the Court will have regard to the three alternative criteria laid down in its case-law (see, inter alia, the following judgments: Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22, p. 35, § 82; Ravnsborg v. Sweden, 23 March 1994, Series A no. 283-B, p. 28, § 30; and Putz v. Austria, 22 February 1996, Reports of Judgments and Decisions p. 324, § 31).
It must first be ascertained whether the provisions defining the offence in issue belong, according to the domestic legal system, to criminal law. In the Court’s opinion, however, there is nothing in the present case which would indicate that this was the case (see, mutatis mutandis, the Putz case cited above, pp. 324-325, § 32). Thus, the pecuniary penalty imposed on the applicant was based on S. 2 § 3 of the Disciplinary Punishment Act of the Canton of Zurich which confers on administrative and judicial authorities the power to maintain discipline in the proceedings before them. Moreover, as the applicant himself submitted, the pecuniary penalties in question are not entered in the criminal record. The Federal Court in its judgment of 15 December 1998 confirmed that the proceedings were not criminal in character.
As regards the nature of the offence, the Court notes that the Disciplinary Punishment Act lays down punishment for behaviour considered to breach common decency. In the Court’s opinion, rules enabling a court to sanction disorderly conduct in proceedings before it are a common feature of the legal systems of most Contracting States. Such rules and sanctions derive from the inherent power of an authority to ensure the proper and orderly conduct of its own proceedings. Measures ordered under such rules are more akin to the exercise of disciplinary powers than to the imposition of a punishment for commission of a criminal offence (see the Putz judgment previously cited, p. 325, § 33). The Court consequently considers that the kind of proscribed conduct for which the applicant was fined in principle falls outside the ambit of Article 6. The courts may need to respond to such conduct even if it is neither necessary nor practicable to bring a criminal charge against the person concerned (see the Putz judgment, ibid.).
Notwithstanding the non-criminal nature of the proscribed misconduct, the nature and degree of severity of the penalty that the person concerned risked incurring - the third criterion - may bring that conduct into the category of “criminal” matters.
In this respect, the Court notes that according to S. 328 of the Code of Criminal Procedure of the Canton of Zurich, the cantonal administrative authorities may order, insofar as competent, fines up to CHF 1,000. In the instant case the applicant was ordered to pay a fine of CHF 800. In the Court’s view, neither the amount imposed nor the possible amount of the fine attain a level such as to make it a “criminal” sanction. Unlike ordinary fines, the one at issue was not entered in the police register. A decision to convert the fine into a prison sentence could only be taken in limited circumstances, namely if the applicant did not pay the fine. In the Court’s opinion, the fine is designed to enable the courts to ensure the proper conduct of court proceedings (see the Putz judgment cited above, pp. 325-326, §§ 34-37; the Ravnsborg judgment cited above, pp. 30-31, § 35).
Having regard to all these factors, the Court considers that what was at stake for the applicant was not sufficiently important to warrant classifying the offences as “criminal”. As a result, Article 6 of the Convention did not apply to the proceedings complained of.
This part of the application is outside the Court’s competence ratione materiae and is, therefore, incompatible with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention.
2. Under Article 10 of the Convention the applicant complains that he was punished on account of statements which were made in the public interest. 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 imposed on the applicant 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 under Article 10 § 2, the Court notes that the fine was based on S. 2 § 3 and S.4 § 2 of the Disciplinary Punishment Act and on S. 328 of the Code of Criminal Procedure of the Canton of Zurich. These statutes have been published and were therefore accessible to the applicant. Moreover, as the Federal Court confirmed in its judgment of 15 December 1998, they were sufficiently clear to enable the applicant to guide his conduct. The interference was, therefore, “prescribed by law” within the meaning of Article 10 § 2 of the Convention.
Moreover, the interference, aiming at propriety in the proceedings before the authorities, pursued a legitimate aim for the purposes of Article 10 § 2 of the Convention, namely “the prevention of disorder”.
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 freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but this goes hand in hand with a European supervision. 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 he made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” (see, inter alia, the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, pp. 25-26, §§ 40-41; Janowski v. Poland [GC], no. 25716/94, ECHR 1999-I, pp. 199-200, § 30).
In the present case, the Court notes that the persons criticised by the applicant, in particular XY, were not directly involved in the proceedings at issue. The Court is furthermore struck by the seriousness and general nature of the charges made by the applicant. Moreover, the applicant had not in principle been prohibited from making the statements at issue. Thus, the Federal Court pointed out in its judgment of 15 December 1998 that there was a considerable public interest in establishing any connections between magistrates and criminal organisations. However, it considered that 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. Finally, the Court considers that, while the applicant was fined as a private person, he was a practising lawyer by profession and as such should have been aware of the proper means for raising such allegations.
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 the prevention of disorder”. 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 unanimously
Declares the application inadmissible.
Vincent BergerIreneu Cabral Barreto
RegistrarPresident
Full & Egal Universal Law Academy