AS TO THE ADMISSIBILITY OF
Application No. 28439/95
by Alfred STOPP
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 2 March 1995 by
Alfred STOPP against Germany and registered on 4 September 1995 under
file No. 28439/95;
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 1940, is a German national and resident
in Munich. He is an accountant by profession.
In March 1991 the applicant's mother instructed a law firm, Mr.
L. and partners, to represent her in administrative court proceedings,
and in particular to advise her on the prospect of success of an appeal
to the Federal Administrative Court. The applicant's mother, having
been informed that such an appeal would not have any prospect of
success, withdrew the power of attorney. The law firm claimed fees
amounting to about DM 530 which were awarded by the Munich District
Court (Amtsgericht) in May 1992.
On 28 August 1992 the applicant requested the Munich Lawyers'
Association (Rechtsanwaltskammer) to take disciplinary measures against
Mr. L. and partners, charging them and in particular one of the
partners, Mr. G., of improper conduct in representing his mother.
According to the applicant, that they had, by all means and also in
cooperation with the other party, prevented the continuation of the
administrative court proceedings concerned, but nevertheless
subsequently claimed fees which could not be justified at all, and that
they presumably often did so. These submissions were drafted on
official paper with the heading of a registered association defending
the interests of accountants, presided over by the applicant. The
applicant also announced his intention to publish his statements in the
circulars issued by the registered association.
On 19 October 1992 the Munich I Regional Court (Landgericht),
upon the request by Mr. L. and partners, issued an interim injunction
(einstweilige Verfügung) prohibiting the applicant, as well as the said
registered association, from repeating the above statements.
On 17 December 1993, in the proceedings regarding the main
action, the Munich Regional Court issued an injunction against the
applicant and the association concerned, prohibiting them from
repeating the following statements: the plaintiffs, in particular
Mr. G., had, in the context of administrative proceedings brought by
the applicant's mother against the Munich Municipality, attempted to
stop the continuation of these proceedings by all means; that they had,
contrary to their client's interests, entered into an agreement with
the defendant in order to stop the continuation of the proceedings;
that they had claimed fees without having rendered any services; and
that they presumably often did so. In its decision the Regional Court
referred to the relevant provisions of the German Civil Code
(Bürgerliches Gesetzbuch) on the right to an injunction in cases of
tort (unerlaubte Handlung). The Regional Court, examining the
circumstances of the plaintiffs' instructions and their conduct, found
that the applicant's allegations, which amounted to an accusation of
clients' betrayal (Parteiverrat), were wrong. The Court also observed
that the applicant had failed to justify his statements which
deliberately disparaged the plaintiffs and could damage their
professional reputation. Furthermore, the applicant did not have any
legitimate interest in imparting false information of the instant kind
to the Lawyers' Association, notwithstanding its general competence to
examine complaints about lawyers, or to the general public.
On 23 December 1993 the Munich Court of Appeal
(Oberlandesgericht) dismissed the defendants' appeal (Berufung). The
Court of Appeal confirmed the reasoning of the Regional Court.
On 11 January 1995 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde).
COMPLAINTS
The applicant complains under Article 10 of the Convention about
the injunction prohibiting him from repeating his statements about the
allegedly improper conduct of the law firm of Mr. L. and partners.
THE LAW
The applicant complains about the Munich I Regional Court
decision of 23 September 1994, as confirmed by the Munich Court of
Appeal on 17 December 1993.
Article 10 (Art. 10) of the Convention, as far as relevant,
provides:
"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 the impugned measure was an
interference with the applicant's exercise of his freedom of
expression. The fact that, in a given case, that freedom is exercised
other than in the discussion of matters of public interests does not
deprive it of the protection of Article 10 (Art. 10) (Eur. Court H.R.,
Jacubowski judgment of 23 June 1994, Series A no. 291-A, p. 13, para.
25). Such interference is in breach of Article 10 (Art. 10), unless
it is justified under paragraph 2 of Article 10, 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 interference was "prescribed by law", namely the relevant
provisions of the Civil Code. It also pursued a legitimate aim under
the Convention, i.e. "the protection of the reputation or rights of
others". It remains to be ascertained whether the interference can be
regarded as having been "necessary in a democratic society".
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 and to what extent an interference
is necessary, but this margin goes hand in hand with a European
supervision. Thus the measures taken at national level must be
justifiable in principle and proportionate (cf. European Court H.R.,
Observer and Guardian judgment of 26 November 1991, Series A no. 216
pp. 29-30, para. 59; Jacubowski judgment, loc. cit., p. 14, para. 26).
In the present case, the requirements of protecting the
reputation and rights of others, namely of the law firm of Mr. L. and
partners, in particular Mr. G., must be weighed against the applicant's
freedom to inform the Lawyers' Association and possibly third persons
about his accusations of improper conduct and client's betrayal against
the law firm concerned.
The Munich I Regional Court, as confirmed by the Munich Court of
Appeal considered that the applicant had inter alia accused the law
firm of having committed the criminal offence of client's betrayal and
thus made statements which were likely to impair their professional
reputation. The impugned decision took into account that the applicant
had not only raised these wrong accusations with the Lawyers'
Association, but also threatened to render them public. Having regard
to all the material, the Regional Court concluded that the statements
at issue were untrue and concluded that the applicant therefore had no
right to impart such information, in particular no legitimate interest
justifying the incriminated statements. In these circumstances, the
applicant's constitutional complaint also failed.
The Commission finds that the Regional Court, as confirmed by the
Court of Appeal, duly considered the applicant's interest in raising
accusations in respect of the professional performance of his mother's
previous counsel, and the protection to be afforded to a law firm
against false and disparaging statements likely to be repeated in the
public. However, the Court of Appeal attached particular importance
to the fact that he had not only made such statements to the public
authorities or the lawyers' association, but also intended to publish
them to the general public by sending copies of his unproven, and even
false, statements of a very serious nature to the media. In this
context, the Commission observes that, at the time of the injunction
in question, the applicant's mother, in the context of civil
proceedings brought against her, had already been ordered to pay the
fees claimed by the law firm.
In these circumstances, there were relevant and sufficient
reasons for the prohibitory injunction against the applicant. It
cannot, therefore, be said that the Regional Court, in its decision of
23 September 1994, overstepped the margin of appreciation left to the
national authorities.
Accordingly, the interference complained of is justified under
Article 10 para. 2 (Art. 10-2) 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy