AS TO THE ADMISSIBILITY OF
Application No. 32137/96
by Detlef WINTER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 10 September 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
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 23 May 1996 by
Detlef WINTER against Germany and registered on 4 July 1996 under file
No. 32137/96;
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 1948 is a German national and resident in
Lübeck. He is a lawyer by profession.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 8 February 1993 the Schleswig District Disciplinary Court for
Lawyers (Ehrengericht), in a default judgment, issued a reprimand
(Verweis) against the applicant and imposed a fine of DEM 3,000 upon
him for having violated professional rules (anwaltliche
Pflichtverletzung).
In its decision, the Disciplinary Court considered the following
sets of events: the applicant had wrongly accused a colleague of having
threatened to bring disciplinary proceedings and by this means having
attempted to extort the waiver of a claim; he had disparaged another
lawyer in written submissions to the Bar Association in referring to
the fact that he had passed his exam only in the second round; and,
despite a warning, he had failed to remove a plate at his old address
although he had already moved four years before.
The Court considered that the applicant had thereby violated his
professional duties within the meaning of the S. 43 of the Federal
Regulations for Lawyers (Bundesrechtsanwaltsordnung). According to
this provision, 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.
On 17 January 1994 the Schleswig-Holstein Disciplinary Court of
Appeal (Anwaltsgerichtshof) dismissed the applicant's appeal
(Berufung). It ordered that the case should not be subject to an appeal
on points of law (Revision).
On 21 November 1994 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 (Nicht-
zulassungsbeschwerde).
On 21 November 1995 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to entertain the applicant's constitutional
complaint (Verfassungsbeschwerde).
COMPLAINTS
The applicant complains under Articles 6, 7 and 10 of the
Convention about the decision of the Disciplinary Court, issuing a
reprimand against him and imposing a fine for violation of professional
duties, and also of the proceedings concerned.
THE LAW
1. The applicant complains that his disciplinary punishment
infringed his right to freedom of expression. He invokes Article 10
(Art. 10) of the Convention.
This provision, as far as relevant, 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 finds that the measure complained of, i.e. the
applicant's disciplinary punishment, constituted an interference with
the exercise of the applicant's freedom of expression, as guaranteed
under Article 10 para. 1 (Art. 10-1).
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 that is 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 at protecting "the
reputation or rights of others", namely the other lawyers 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 finds that, balancing the applicant's interest in
raising criticism in respect of the professional performance of some
of his colleagues, and the protection of the reputation and rights the
lawyers concerned against unfair and disparaging statements, 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 3,000, 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 this part of the application is manifestly
ill-founded with the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. As regards the applicant's further submissions, the Commission,
in the light of all the material in its possession and in so far as the
matters complained of are within its competence, finds that they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols. It follows that this part of
the application is likewise inadmissible under Article 27 (Art. 27) 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