AS TO THE ADMISSIBILITY OF
Application No. 25063/94
by Horst TRIEFLINGER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
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 8 August 1994 by
Horst TRIEFLINGER against Germany and registered on 1 September 1994
under file No. 25063/94;
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 facts, as they have been submitted by the applicant, may be
summarised as follows.
The applicant, born in 1940, is a German national and resident
in Frankfurt/Main. He is a business management consultant by
profession.
In 1985/86 the applicant was involved in several labour court
proceedings against his previous employer. The court proceedings
concerning his dismissal terminated with a settlement which provided
for the payment of a severance allowance of DM 55,000. In these
proceedings the applicant was represented by counsel Mr. T.
In December 1986 the applicant requested the Frankfurt/Main
Lawyers' Association (Rechtsanwaltskammer) to take disciplinary
measures against Mr. T., charging him with betrayal (Parteiverrat) in
the context of the above labour court proceedings. The applicant
considered that Mr. T. had wrongly advised him upon the conclusion of
the settlement with his employer. His request remained unsuccessful.
In 1987 the applicant filed an action against Mr. T. claiming
compensation for negligence in the context of the above labour court
proceedings. His action was dismissed by the Frankfurt/Main Regional
Court (Landgericht) on 7 January 1988, as confirmed by the
Frankfurt/Main Court of Appeal (Oberlandesgericht) on 14 July 1988.
On 16 December 1988 the applicant laid a criminal information
with the Frankfurt/Main Prosecutor's Office (Staatsanwaltschaft),
charging Mr. T. with client's betrayal (Parteiverrat) to his
disadvantage in the context of the above labour court proceedings. The
applicant sent a copy of these submissions to the editor of a
newspaper. The preliminary investigations against Mr. T. were
discontinued for lack of suspicion in February 1989. Following the
applicant's appeal, the Prosecutor's Office reopened the investigation
proceedings, which were finally discontinued in February 1990. The
applicant lodged an appeal with the Director of Public Prosecution
(Generalstaatsanwalt) and sent copies thereof to several editors of
newspapers. The appeal was dismissed on 17 April 1990. The applicant
also complained about the decision to discontinue the investigation
proceedings with the Hessen Minister of the Interior (Innenminister),
and sent copies of these submissions to the press.
As from March 1989 the applicant also renewed his requests with
the Lawyers' Association that disciplinary measures be taken against
Mr. T.
On 27 September 1990 the Frankfurt/Main Regional Court dismissed
Mr. T.'s request for an injunction prohibiting the applicant from
stating that Mr. T. had betrayed him in the context of court
proceedings with his former employer. The Regional Court considered
that there was no right to a prohibitory injunction regarding
complaints with a public authority or a lawyers' association about
alleged grievances. The incriminated statement of a suspicion could
not be objected to.
On 20 February 1992 the Frankfurt/Main Court of Appeal, upon
Mr. T.'s appeal, prohibited the applicant from telling third persons
that Mr. T. had betrayed him in the context of court proceedings with
his former employer.
The Court of Appeal, in its reasoning, 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
Court of Appeal found that the applicant had, in the past, accused
Mr. T. of having committed the criminal offence of client's betrayal
in that Mr. T. had allegedly deliberately served the interests of the
opponent party in the above labour court proceedings and thereby caused
damage to the applicant, and that he had continued to do so at the
hearing. The Court of Appeal considered that these statements impaired
Mr. T.'s reputation as a lawyer.
According to the Court of Appeal, the question to what extent the
applicant could raise such accusations in the context of judicial
proceedings was irrelevant on the ground that he had also informed the
public in sending copies of his various submissions to the media. The
Court of Appeal, having taken evidence, found that the applicant's
allegations were untrue and that he therefore had no right to impart
such information. The Court of Appeal continued that even assuming
that the applicant's allegations had not been refuted, the right to
freedom of expression did not cover, as a rule, a right to impart
insulting and disparaging allegations outside judicial proceedings.
Moreover, there was no public interest in the matter justifying the
incriminated statements which seriously impaired Mr. T.'s professional
reputation. In this context, the Court of Appeal noted that there was
no indication that the applicant's allegations had been taken up by the
newspapers concerned.
On 19 May 1994 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 Court of Appeal's decision of 20 February 1992 prohibiting him from
telling third persons that Mr. T., in his position as counsel, had
betrayed him in the context of the labour court proceedings against his
former employer.
THE LAW
The applicant complains about the Court of Appeal's decision of
20 February 1992 prohibiting him from telling third persons that
Mr. T., in his position as counsel, had betrayed him in the context of
the labour court proceedings against his former employer. He invokes
Article 10 (Art. 10) of the Convention.
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 (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 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 lawyer Mr. T., must be
weighed against the applicant's freedom to inform third persons about
his accusations of client's betrayal against Mr. T.
The Frankfurt/Main Court of Appeal considered that the applicant
had accused Mr. T. of having committed the criminal offence of client's
betrayal and thus made statements which impaired Mr. T.'s reputation
as a lawyer. Its judgment was based on the fact that the applicant had
not only raised these accusations in the context of judicial
proceedings, but also informed the public by sending copies of his
various submissions to the media. The Court of Appeal, having taken
evidence, found that the applicant's allegations were untrue and
concluded that he therefore had no right to impart such information.
In the alternative, assuming that the applicant's allegations had not
been refuted, the Court of Appeal observed that the right to freedom
of expression did not cover, as a rule, a right to impart insulting and
disparaging allegations outside judicial proceedings, and that there
was no public interest in the matter justifying the incriminated
statements which seriously impaired Mr. T.'s professional reputation.
In these circumstances, the applicant's constitutional complaint
remained unsuccessful.
The Commission finds that the Court of Appeal took into account
the applicant's interest in raising accusations in respect of the
professional performance of his previous counsel. However, the Court
of Appeal attached particular importance to the fact that he had not
only done so with public authorities or the lawyers' association, but
also aimed at informing the general public in sending copies of his
unproven, or even false, statements of a very serious nature to the
media.
In this context, the Commission observes that, at the time of the
Court of Appeal's judgment prohibiting the applicant from further
making these statements, his civil action against Mr. T. had been
dismissed, and Public Prosecutor's Office had finally discontinued the
preliminary investigations against Mr. T. for lack of suspicion.
In these circumstances, there were relevant and sufficient
reasons for the prohibitory injunction against the applicant. It
cannot, therefore, be said that the Court of Appeal, in its decision
of 20 February 1992, overstepped the margin of appreciation left to the
national authorities.
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 remaining part of 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