AS TO THE ADMISSIBILITY OF
Application No. 12306/86
by M.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 9 March 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 June 1986 by
M. against the Federal Republic of Germany and registered on 31 July
1986 under file No. 12306/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen born in 1930 and practising
as a lawyer in Düsseldorf.
It follows from his statements and the documents submitted by
him that on 17 December 1981 and 10 May 1983 the applicant was
reprimanded and fined each time 10,000 DM by the Düsseldorf
Disciplinary Court for lawyers (Ehrengericht für den Bezirk der
Rechtsanwaltskammer Düsseldorf) for having violated
professional rules. The applicant's appeals against both decisions
were joined by the lawyer's Disciplinary Court of North Rhine
Westphalia and to a large extent rejected on 9 December 1983. This
Court likewise considered that the applicant had violated his
professional duties (Sections 43 *, 113, 114 of the Lawyers' Act
[BRAO]) and fined the applicant 17,000 DM. According to the findings
of the Disciplinary Courts, the applicant had, in certain of his
submissions made to German Civil Courts in his capacity as
representative of private parties, made statements which exceeded a
lawyer's legitimate interest in defending his client's case: Inter
alia, he had, with regard to a final decision of the Düsseldorf
Court of Appeal (Oberlandesgericht), stated that he had expected "that
the appellate court would make an effort not to copy as quickly as
possible as much nonsense as possible ..... in that way the parties
were harassed by the courts as if they were stupid children."
In other civil proceedings the applicant, referring to a
decision which he contested, had requested the Court not to decide "in
accordance with the arbitrariness practised in Düsseldorf but in
accordance with the law".
Furthermore, he stated that "the Regional Court cared a damn
about the law; a case of perversion of justice within the meaning of
Section 336 of the German Criminal Code, at least if it were
repeated".
In the course of the disciplinary proceedings instituted on
account of the aforementioned remarks the applicant submitted, inter
alia, that it was probably the "silly fools' mentality" of the judicial
authorities which considered it necessary to employ a "big stick policy"
vis-à-vis a lawyer .... and he concluded:
"What is done against such arbitrariness?"
These and similar statements were considered by the
Disciplinary Courts to be of insulting character. The Discipliary
Court of Appeal pointed out in its decision of 9 December 1983 that a
lawyer had, of course, the right to defend his client's interests in a
tough and aggressive way. He was free to explain his point of
view in a clear and unequivocal manner but he had to refrain from
personal attacks against the persons involved in the proceedings if
____________
* This provision states: A lawyer has to exercise his profession
conscientiously. He has to act, both in private and in the exercise
of his profession, with the dignity corresponding to the respect and
confidence required by his profession.
such attacks were not related to the subject matter of the case. The
remarks made by the applicant did, in the opinion of the Disciplinary
Court, exceed by far the limits within which it had to be tolerated
that a lawyer represents the interests of his clients.
The applicant's complaint to the Federal Court (Bundes-
gerichtshof) of the refusal by the appellate court to grant leave to
appeal was rejected on 9 July 1984.
The applicant then lodged a constitutional appeal which was
rejected on 24 January 1986 by a group of 3 judges of the Federal
Constitutional Court (Bundesverfassungsgericht) as offering no
prospects of success. It is stated in the decision that Section 43
BRAO was a law limiting freedom of opinion in accordance with
Article 5 (1) of the Basic Law (Grundgesetz). This provision obliged
a lawyer to behave in a correct manner while performing his tasks as
an organ within the administration of justice. It did, however, not
prevent a lawyer from criticising in a correct and objective manner
decisions or measures of the judiciary or the administration. As a
great part of the applicant's statements which were the object of the
disciplinary proceedings were of insulting character within the
meaning of the relevant provisions of the Penal Code, the decision
complained of did not violate constitutional rights.
COMPLAINTS
The applicant maintains that his statements which were the
object of the disciplinary proceedings were true but, even if their
truth could not be established, they did, in his opinion, not
violate the criminal law because they were justified for the sake of
the representation of his client's interests. He argues that the
professional rules which were, according to the Disciplinary Court,
violated by him are vague and do not expressly provide that a lawyer's
arguments had to be "objective" (sachlich). This requirement was
developed by the jurisprudence and directives elaborated by the Bar
associations. In his opinion it violates the right to freedom of
opinion and expression if a lawyer is prevented from criticising
decisions or measures of the administrative or judicial authorities.
Such criticism can only improve the prestige of the legal profession.
He alleges a violation of Article 10 of the Convention.
THE LAW
The applicant has complained that his disciplinary punishment
for having, in his capacity as a lawyer, made statements which were
considered to be of an insulting character violated his right to
freedom of expression as guaranteed by Article 10 para. 1 (Art. 10-1)
of the Convention.
However, the exercise of the right to freedom of expression
may be subject to restrictions or penalties as are prescribed by law
and are necessary in a democratic society, inter alia, for the
protection of the reputation or rights of others and for maintaining
the authority and impartiality of the judiciary (Article 10 para. 2 of
the Convention) (Art. 10-2). In the present case, the applicant's
disciplinary sanction was based on provisions of the Lawyers' Act
(BRAO) and the applicant has not shown that these provisions were
interpreted in his case in a manner inconsistent with their
interpretation by the German courts. The provisions in question do
not lack sufficient precision. The European Court of Human Rights has
admitted that laws may be couched in terms which, to a greater or
lesser extent, are vague and whose interpretation and application are
questions of practice (Sunday Times case, judgment of 26 April 1979,
Series A, vol. 30, p. 31, para. 49). In the present case it was
foreseeable for the applicant that insulting or defamatory statements
would be considered as violations of the relevant rules of the code of
conduct.
As to the question of necessity of the disciplinary sanction,
the case-law of the organs set up by the Convention shows that the
criterion of "necessity" cannot be applied in absolute terms but calls
for the assessment of various factors. These include the nature of
the right in question, the degree of interference, the nature of the
public interest and the extent to which it needed to be protected in
the particular circumstances.
In this context the Commission notes that the applicant is a
representative of a profession that exercises important functions in
respect of the administration of justice. The members of this
profession can therefore be expected to show restraint in exercising
their freedom of expression in all cases where the authority and
impartiality of the judiciary are likely to be called in question
(cf. mutatis mutandis No. 10279/83, Dec. 7.5.84, DR 38 pp. 124, 136).
The Commission furthermore notes that the German courts
underlined that a lawyer is free to defend his clients' interests in a
tough and aggressive, but not insulting or defamatory manner. The
disciplinary sanction in question was imposed on account of statements
which the applicant had made in his submissions to German judicial
authorities. These statements were considered to be of an insulting
character within the meaning of the criminal law. The Commission
cannot find that this evaluation made by the German disciplinary
courts discloses any arbitrariness. Remarks employed in relation to
the judicial authorities like "he had expected that the appellate
court would make an effort not to copy as quickly as possible as much
nonsense as possible ... in that way the parties were harassed by the
courts as if they were stupid children"; the court should not decide
"in accordance with the arbitrariness practised in Düsseldorf but in
accordance with the law"; "the 'silly fools' mentality of the
judicial authorities which considered it necessary to employ a 'big
stick policy' vis-à-vis a lawyer" do, in the context used by the
applicant, constitute the expression of value judgments that may be
considered of a degrading character. His disciplinary punishment was
therefore justified as being necessary in a democratic society both
for the protection of the rights of others and maintaining the
authority and impartiality of the judiciary, within the meaning of
Article 10 para. 2 (Art. 10-2) of the Convention.
An examination by the Commission of this complaint as it has
been submitted, does not therefore disclose any appearance of a
violation of the rights and freedoms set out in the Convention and in
particular in the above Article.
It follows that the application is manifestly ill-founded
within the meaning of Art. 27, para 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)