AS TO THE ADMISSIBILITY OF
Application No. 30549/96
by Hans MEISTER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 10 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 March 1996 by
Hans MEISTER against Germany and registered on 22 March 1996 under file
No. 30549/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1930, is a German national and resident
in Düsseldorf. He is a lawyer by profession.
His previous Application No. 12306/86 was declared inadmissible
in 1988. It concerned the applicant's complaint that his disciplinary
punishment in 1981 and 1983, respectively, for having, in his capacity
as a lawyer, made insulting statements violated his right to freedom
of expression. Application No. 25157/94 concerning his disciplinary
punishment in 1993 was declared inadmissible in October 1995.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
On 25 April 1994 the Düsseldorf District Disciplinary Court for
Lawyers (Ehrengericht) issued a reprimand (Verweis) against the
applicant and imposed a fine of DEM 40,000 upon him for having violated
professional rules (anwaltliche Pflichtverletzung).
In its decision, the Disciplinary Court noted the applicant's
previous four disciplinary punishments in 1979, 1981, 1983, 1986 and
1992, respectively.
As regards the present disciplinary punishment, the Disciplinary
Court of Appeal considered that the following two sets of events.
The Court found first that in December 1992 the applicant, after
having assisted a Nigerian accused in criminal proceedings on charges
of fraud in 1991/92, had addressed a hierarchical complaint
(Dienstaufsichtsbeschwerde) to the North-Rhine Westphalia Minister of
Justice (Justizminister) in which he had criticised the conduct of the
judges at the Wuppertal Regional Court (Landgericht) in the above
proceedings and their judgment, and had further stated that "obviously
the case had been tried by highly irritable idiots whose powers had
gone to their heads" ("Offenbar haben hier hochreizbare Stießel zu
Gericht gesessen, denen ihre Macht zu Kopf gestiegen ist."). Following
a reply by the President of the Wuppertal Regional Court that, having
regard to the independence of the judiciary, the legal assessment by
the judges concerned could not be reviewed, the applicant had again
written to the Minister of Justice. In a letter of 10 February 1993,
he had questioned "whether he could still expect that [the Minister]
would take any measure to stop the proven judicial arbitrariness"
("Kann ich damit rechnen, daß Sie noch etwas tun werden, was der
erwiesenen richterlichen Willkür Einhalt gebietet?"). Moreover, he
further stated that, should the Minister also refer to the independence
of the judiciary, "he would regard him as being one of these clowns
who, as a result of their idle talk, had forgotten about the imperative
needs of a State" ("... sind auch Sie für mich einer jener Hanswurste,
denen vor lauter Geschwätz der Nerv für die Notwendigkeiten eines
Staates abhanden gekommen ist."). Upon the Minister's reply confirming
the position of the President of the Regional Court, the applicant, in
submissions to the Minister of 10 April 1993, had reproached him with
"washing his hands of it with legally imposed stupidity and acting with
impudence towards the people whom he was supposed to serve" ("... Sie
Ihre Hände in der Unschuld gesetzlich verordneter Dummheit waschen und
Frechheit gegenüber dem Volk, dem Sie dienen sollen.").
Secondly, the applicant, in submissions to the Neustadt
Administrative Court (Verwaltungsgericht) of 29 December 1992, had
criticised a decision of that Court refusing an interim injunction,
apparently in expulsion proceedings. He had, inter alia, stated that
the decision was "biased idle talk" ("voreingenommenes Geschwätz") and
"shameless deception" ("schamloser Betrug"). Following complaints
raised by the President of the Administrative Court with the competent
Düsseldorf Bar Association (Rechtsanwaltskammer), the applicant had
been requested to comment upon the matter. He had again written to the
President of the Administrative Court requesting him that the above
decision be reviewed. He had further assumed that the President would
refuse such review although "the decision in question was bristling
with impudence and idleness" ("... der ergangene Beschluß von
Dreistigkeit und Faulheit strotzt.").
The Disciplinary Court considered that in the above cases the
applicant had violated his professional duties within the meaning of
the S. 43 of the Federal Regulations for Lawyers (Bundesrechtsanwalts-
rdnung).
According to S. 43, a lawyer has to practise his profession
conscientiously, and, whether in pursuit of his profession or
otherwise, he has to prove himself worthy of the respect and trust
which the position of a lawyer requires. Referring to the
jurisprudence of the Federal Constitutional Court
(Bundesverfassungsgericht), the Disciplinary Court observed that a
violation of the professional duty of objectivity (Sachlichkeitsgebot)
could entail disciplinary measures to the extent that the criminal
offences of insult or defamation were at issue and that the other
person or the course of the proceedings had not given rise to such
statements.
The Disciplinary Court examined the applicant's above-mentioned
statements in the light of these principles and gave detailed reasons
that they were of an insulting character without this being necessary
for the purposes of each of the proceedings concerned. The Court noted
in particular that these insulting statements had been made following
the termination of the respective court proceedings.
On 20 September 1994 the North-Rhine Westphalia Disciplinary
Court of Appeal (Anwaltsgerichtshof), following a hearing, dismissed
the applicant's appeal (Berufung). The Disciplinary Court of Appeal
ordered that the case should not be subject to an appeal on points of
law (Revision).
On 19 June 1995 the Lawyers' Senate (Senat für Anwaltssachen) at
the Federal Court of Justice (Bundesgerichtshof) dismissed the
applicant's request for leave to appeal on points of law (Beschwerde
gegen die Nichtzulassung der Revision).
On 27 September 1995 the Federal Constitutional Court refused to
entertain the applicant's constitutional complaint (Verfassungs-
beschwerde).
COMPLAINTS
The applicant complains under Article 10 of the Convention about
the decision of the Düsseldorf Disciplinary Court of 25 April 1994,
issuing a reprimand against him and imposing a fine for violation of
professional duties.
THE LAW
The applicant complains that his disciplinary punishment
infringed his right to freedom of expression. He invokes Article 10
(Art. 10) of the convention which provides as follows:
"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
...
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 ..."
The Commission notes that on 25 April 1994 the Düsseldorf
Disciplinary Court for Lawyers, as confirmed by the North-Rhine
Westphalia Disciplinary Court of Appeal, found the applicant guilty of
having violated his professional duty of objectivity on numerous
counts. The Disciplinary Court considered that, in various written
submissions with German courts and the North-Rhine Westphalia Minister
of Justice, the applicant had made insulting statements about judges
and the Minister of Justice which he regarded as having decided or
acted incorrectly in the context of, or in relation to, court
proceedings.
The Commission finds that this measure constituted an
interference with the exercise of the applicant's freedom of
expression. Such interference is in breach of Article 10 (Art. 10),
unless it is justified under paragraph 2 of Article 10 (Art. 10-2),
i.e. it must be "prescribed by law", have an aim or aims that is or are
legitimate under Article 10 para. 2 (Art. 10-2) and be "necessary in
a democratic society".
The legal basis of the interference under consideration was S. 43
of the Federal Regulations for Lawyers. The Commission finds that the
general description of the professional duties as contained in S. 43
of the Federal Regulations for Lawyers does not raise any problem as
to the requirements of accessibility and foreseeability of the
interference. Frequently laws are framed in a manner that is not
absolutely precise and, in such cases, their interpretation and
application are inevitably questions of practice (cf., mutatis
mutandis, Eur. Court HR, Barthold v. Germany judgment of 25 March 1985,
Series A no. 90, pp. 21-23, paras. 45-48; Markt Intern Verlag GmbH and
Klaus Beermann v. Germany judgment of 20 November 1989, Series A
no. 165, p. 18, para. 30). In the present case, the requirement of
objectivity and the duty to refrain from insult and defamation formed
part of the essence of professional duties, in accordance with the
jurisprudence of the disciplinary courts and the Federal Constitutional
Court (cf. No. 14622/89, Dec. 7.3.91, D.R. 69, p. 272). The
interference complained of can, therefore, be considered as "prescribed
by law" for the purposes of Article 10 para. 2 (Art. 10-2).
Moreover, the decisions complained of aimed to protect "the
reputation or rights of others", namely the judges and the Minister of
Justice affected by the applicant's statements, which is a legitimate
aim under Article 10 para. 2 (Art. 10-2).
It remains to be determined whether the interference complained
of was "necessary in a democratic society" and proportionate to the
legitimate aim pursued.
The Commission recalls that the adjective "necessary" within the
meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a
"pressing social need". The Contracting States have a certain margin
of appreciation in assessing whether such a need exists, but it goes
hand in hand with a European supervision (cf. Eur. Court HR, Observer
and Guardian v. the United Kingdom judgment of 26 November 1991, Series
A no. 216, pp. 29-30, para. 59; see also No. 14622/89, Dec. 7.3.91,
loc. cit.).
The Commission notes that disciplinary proceedings were conducted
against the applicant for breach of the professional duties, namely for
having insulted judges and the Minister of Justice in written
statements relating to court proceedings.
The Commission considers that the Disciplinary Court, in a very
detailed reasoning, examined the applicant's various submissions which
were considered to be of an insulting nature. The Court had regard to
the applicant's concern to protect the rightful interests of his
clients, however, also noted that he had made these statements after
termination of the respective proceedings. The Court's findings were
confirmed by the Disciplinary Court of Appeal and the applicant's
complaints with the Federal Court of Justice and the Federal
Constitutional Court remained unsuccessful.
The Commission finds that the Courts duly balanced the
applicant's concern to protect the rightful interests of his clients
and right to lodge complaints against the necessity, in a democratic
society, to protect the reputation and rights of others, here in
particular judges, against insult. Having considered the impugned
statements, the Commission finds that there were relevant and
sufficient reasons for a disciplinary measure against the applicant.
Moreover, the disciplinary sanction chosen, i.e. a reprimand and
a fine amounting to DEM 40,000 because of the applicant's recidivism,
does not appear disproportionate to the legitimate aim pursued.
In these circumstances, the interference complained of was
"necessary in a democratic society" within the meaning of Article 10
para. 2 (Art. 10-2) of the Convention.
Accordingly, there is no appearance of a violation of the
applicant's right under Article 10 (Art. 10) of the Convention.
It follows that the application is manifestly ill-founded with
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy