Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 25405/94

Alois Schöpfer

against

Switzerland

REPORT OF THE COMMISSION

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-34) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-33). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(para. 34). . . . . . . . . . . . . . . . . . . . .8

III. OPINION OF THE COMMISSION

(paras. 35-57) . . . . . . . . . . . . . . . . . . . . .9

A. Complaint declared admissible

(para. 35). . . . . . . . . . . . . . . . . . . . .9

B. Point at issue

(para. 36). . . . . . . . . . . . . . . . . . . . .9

C. Article 10 of the Convention

(paras. 37-56). . . . . . . . . . . . . . . . . . .9

CONCLUSION

(para. 57). . . . . . . . . . . . . . . . . . . . 12

DISSENTING OPINION OF MRS. G.H. THUNE, MM. A. GÖZÜBÜYÜK,

J.-C. SOYER, H. DANELIUS, M.A. NOWICKI AND J. MUCHA . . . . 13

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 15

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant, a Swiss citizen, born in 1953, is a lawyer

practising in Lucerne, Switzerland.

3. The application is directed against Switzerland. The respondent

Government are represented by Mr Philippe Boillat, Head of the European

Law and International Affairs Section of the Federal Office of Justice,

Agent.

4. The case concerns the disciplinary sanction of a fine imposed on

the applicant who, as a lawyer, complained at a press conference about

the unlawful detention of his client. The applicant invokes Article 10

of the Convention.

B. The proceedings

5. The application was introduced on 11 August 1994 and registered

on 11 October 1994.

6. On 29 November 1995 the Commission (Second Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 20 February 1996.

The applicant replied on 30 April 1996.

8. On 4 September 1996 the Commission declared the application

admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 17 September 1996 and they were invited to submit

such further information or observations on the merits as they wished.

However, no further submissions were made.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mrs. G.H. THUNE, President

MM. S. TRECHSEL

J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

12. The text of this Report was adopted on 9 April 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. The applicant was acting as counsel for S. who was remanded in

custody in the District Prison of Hochdorf in the Canton of Lucerne on

suspicion of having committed various financial offences.

17. On 6 November 1992 S.'s wife informed the applicant that the two

District Registrars (Amtsschreiber) of the Hochdorf District Office

(Amststatthalteramt) had urged her to find another lawyer for her

husband if the latter wanted to be released from detention.

18. In view thereof and of other alleged occurrences the applicant

held a press conference in his office in Lucerne on 9 November 1992.

He stated inter alia that for years at the Hochdorf District Office the

laws of the Canton of Lucerne and human rights were being breached to

the highest degree (werden sowohl die Luzerner Gesetze als auch die

Menschenrechte in höchstem Grade verletzt, und zwar schon seit Jahren).

19. On 10 November 1992 the newspaper "Luzerner Neueste Nachrichten"

(LNN) printed the following article on p. 25:

Former member of parliament of the Christian Popular Party (CVP)

demands investigation against the Hochdorf District Office.

"I shall no longer let myself be fooled by these gentlemen"

The former CVP member of parliament levels serious charges against the

Hochdorf District Office.

"I've had enough", complains (the applicant), "of being fooled by

the gentlemen of the Hochdorf District Office. I have no other means

left than going to the press." The former CVP member of parliament was

prompted to take the unusual step of approaching the public during

pending proceedings on account of a case entrusted to him as a lawyer

in mid-October. At that time his client had already been remanded in

custody for a month at Hochdorf District Prison.

Detained without a warrant of arrest

The 20 year old father of a daughter of one and a half year was

arrested on 18 August together with his brother on account of stealing

a car radio and clothes; he was released after having admitted the

offences. When on 15 September he wanted to inquire at the Lucerne

Cantonal Police about his brother's situation, he was again immediately

arrested.

"When I inquired at the Hochdorf District Office about the

warrant of arrest", (the applicant) remembers, "I was told that the

warrant had been issued orally"; (the applicant) regards this as a

clear breach of the cantonal Code of Criminal Procedure which states in

Section 82: "The arrest is undertaken by the police duly authorised by

a written warrant of arrest."

When faced with this reproach, the Hochdorf District Officer H.B.

remains buttoned up: "With me nobody is arrested without a written

warrant of arrest. I cannot say more while the proceedings are

pending." On the other hand, (the applicant) no longer intends to

remain silent; he has been asked by the accused's wife to represent

him: "His wife came to me because the officially appointed lawyer had

failed to contact his client even though he had already been remanded

in custody during six weeks."

(The applicant) immediately contacted the officially appointed

counsel who then withdrew from the case. However, the Hochdorf

District Office did not want (the applicant) as new counsel and refused

his request on 29 October on the ground that there were no reasons to

dismiss the previous lawyer. He was, however, free privately to

represent his client.

(The applicant) as a ground for detention?

(The applicant) finally had enough when the accused's wife last

Friday informed him that the two District Registrars Th.B. and B.B. had

advised her not to continue collaboration with him. "They told me",

the wife confirms to the LNN, "that my husband would not be released

from detention as long as (the applicant) was his defence lawyer."

Th.B. will have nothing to do with that: "That's ridiculous. I never

said anything like that. B.B. can confirm that. He was present when

I spoke with the wife."

(The applicant) is not satisfied by that: "I demand that the

District Officer and the District Registrars immediately step down and

that a neutral Commission from another Canton carefully examine the

matter."

Ehemaliger CVP-Grossrat verlangt Untersuchung gegen Amtsstatthalteramt

Hochdorf.

"Ich lasse mich von diesen Herren nicht länger für dumm verkaufen"

Der ehemalige CVP-Grossrat erhebt schwere Vorwürfe gegen das

Amtsstatthalteramt Hochdorf.

"Ich habe es satt", wettert (der Beschwerdeführer), "mich von den

Herren vom Amtsstatthalteramt Hochdorf für dumm verkaufen zu lassen.

Deshalb bleibt mir nur noch der Weg über die Presse." Bewogen zu dem

ungewöhnlichen Schritt, während eines laufenden Verfahrens an die

Öffentlichkeit zu gelangen, hat den ehemaligen CVP-Grossrat ein Fall,

mit dem er als Anwalt Mitte Oktober betraut wurde. Zu diesem Zeitpunkt

sass sein Klient bereits seit einem Monat im Hochdorfer

Untersuchungsgefängnis.

Ohne Haftbefehl festgenommen

Der 20jährige Vater einer anderthalbjährigen Tochter war am

18. August zusammen mit seinem Bruder wegen Diebstahls von Autoradios

und Kleidern verhaftet und nach einem Geständnis wieder freigelassen

worden. Als er sich am 15. September auf der Kantonspolizei Luzern

nach dem Befinden seines Bruders erkundigen wollte, wurde er

unverzüglich wieder festgenommen.

"Als ich auf dem Amtsstatthalteramt Hochdorf nach dem Haftbefehl

fragte, wurde mir mitgeteilt, dieser sei ihm mündlich eröffnet worden",

erinnert sich (der Beschwerdeführer), der das Vorgehen der Polizei als

eine klare Verletzung der kantonalen Strafprozessordnung betrachtet,

die im Paragraph 82 vorschreibt: "Die Verhaftung wird von der Polizei

vollzogen, die sich durch einen schriftlichen Haftbefehl auszuweisen

hat."

Auf diesen Vorwurf angesprochen, gibt sich Hochdorfs

Amtsstatthalter H.B. zugeknöpft: "Bei mir wird niemand ohne

schriftlichen Haftbefehl festgenommen. Mehr kann ich zu einem

laufenden Verfahren nicht sagen." Nicht länger schweigen will dagegen

(der Beschwerdeführer), der von der Frau des Angeschuldigten gebeten

wurde, ihren Mann zu verteidigen: "Die Frau kam zu mir, weil der

amtliche Verteidiger noch keinen Kontakt mit seinem Klienten

aufgenommen hatte, obwohl er seit sechs Wochen in Untersuchungshaft

sass."

(Der Beschwerdeführer) setzte sich umgehend mit dem amtlichen

Verteidiger in Verbindung, der ihm den Fall abtrat. Das

Amtsstatthalteramt Hochdorf wollte dagegen (den Beschwerdeführer) nicht

als neuen amtlichen Verteidiger und lehnte sein Gesuch am 29. Oktober

mit der Begründung ab, es bestände keine Veranlassung, den bisherigen

Rechtsanwalt von seinem Amt zu entbinden. Es stünde ihm jedoch frei,

den Klienten privat zu verteidigen.

(Der Beschwerdeführer) als Haftgrund?

Der Kragen platzte (dem Beschwerdeführer), als ihm die Frau des

Angeklagten am letzten Freitag mitteilte, die beiden Amtsschreiber

Th.B. und B.B. hätten ihr von einer weiteren Zusammenarbeit mit ihm

abgeraten. "Sie erklärten mir", bestätigt die Frau gegenüber der LNN,

"dass mein Mann nicht aus der Haft entlassen werde, solange (der

Beschwerdeführer) sein Verteidiger sei." Davon will Th.B. allerdings

nichts wissen: "Das ist doch lächerlich. So etwas habe ich nie

gesagt. Das kann B.B. bestätigen. Er war dabei, als ich mit der Frau

gesprochen habe."

(Der Beschwerdeführer) will den Vorfall nicht auf sich beruhen

lassen: "Ich verlange, dass unverzüglich der Amtsstatthalter und die

Schreiber in Ausstand treten und eine neutrale ausserkantonale

Kommission die Angelegenheit unter die Lupe nimmt."

20. Inserted into this text was the further article:

"REPROACHES

It is not the first time that substantial charges are levelled

against the Hochdorf District Office. Already in connection with the

conviction of the Debt Execution Officer H.S. of Rothenburg

investigations were undertaken against District Officer H.B. He was

convicted by the Lucerne District Court and sentenced to a fine of

400 CHF on account of a breach of official secrets. Although the Court

of Appeal also found that objectively he had committed the offence,

H.B. was acquitted."

"VORWÜRFE

Es ist nicht das erste Mal, dass gegen das Amtsstatthalteramt

Hochdorf massive Vorwürfe erhoben werden. Schon im Zusammenhang mit

der Verurteilung des Rothenburger Betreibungsbeamten H.S. wurde gegen

Amtsstatthalter H.B. ermittelt. Er wurde vom Amtsgericht Luzern wegen

Verletzung des Amtsgeheimnisses zu einer Busse von 400 Franken

verurteilt. Obwohl auch das Obergericht zum Schluss kam, der objektive

Tatbestand sei erfüllt, wurde H.B. freigesprochen."

21. Two photographs were included, one with the Hochdorf District

Office, the other depicting District Officer H.B. and accompanied by

the text: "with me nobody is detained without a written warrant of

arrest" ("bei mir wird niemand ohne schriftlichen Haftbefehl

festgehalten").

22. Another newspaper, the "Luzerner Zeitung", also ran on

10 November 1992 an article on the press conference with the headline

"Young man detained without warrant of arrest? Lucerne lawyer accuses

the Hochdorf District Office of breaching the law" ("Junger Mann ohne

Haftbefehl verhaftet? Luzerner Anwalt wirft Amtsstatthalteramt

Hochdorf Rechtsverletzungen vor").

23. On 10 November 1992 the Public Prosecutor's Office

(Staatsanwaltschaft) of the Canton of Lucerne issued a reply according

to which the accused person concerned had been arrested in accordance

with the law, and the applicant had failed to file an appeal against

the refusal to appoint him as official defence counsel. This reply was

published in the press on 11 November 1992.

24. On 13 November 1992 the Luzerner Zeitung summarised a press

communiqué issued by the applicant in reply to the Public Prosecutor's

statement. According to the applicant, S.'s detention was in breach,

inter alia, of Convention rights. The applicant also cited the letter

of another lawyer St. according to which "the situation in Hochdorf is

far from satisfactory ... It is a catastrophe that the organs of

justice know about the circumstances in Hochdorf and also covertly

discuss them" ("die Zustände in Hochdorf (sind) alles andere als

erfreulich ... Katastrophal ist ja auch, dass man bei der Justiz die

Verhältnisse kennt und hinter vorgehaltener Hand auch darüber

diskutiert").

25. According to an article in the Luzerner Zeitung of

19 November 1992 the Supervisory Board (Aufsichtsbehörde) of the Bar

of the Canton of Lucerne had written to the applicant, asking him for

explanations; the applicant had replied, inter alia, by stating that

he had acted lawfully and in the interests of his client.

26. Meanwhile, the applicant filed a request for S.'s release from

detention on remand. On 16 November 1992 the Hochdorf District Officer

dismissed the request.

27. Against this decision the applicant filed an appeal which the

Court of Appeal (Obergericht) of the Canton of Lucerne dismissed on

30 November 1992. The Court of Appeal noted, however, that S., after

his arrest, had incorrectly been brought before the District Registrar

instead of the District Officer who alone qualified as a judge or other

officer authorised by law to exercise judicial power within the meaning

of Article 5 para. 3 of the Convention. For this reason, the Court of

Appeal ordered the decision to be brought to the attention of the

Public Prosecutor's Office as the District Officer's supervisory

authority.

28. On 21 December 1992 the Supervisory Board of the Bar instituted

disciplinary proceedings against the applicant.

29. On 15 March 1993 the Lawyers' Supervisory Board imposed, with

reference to Section 13 of the Statute of the Bar (Anwaltsgesetz; see

below, Relevant domestic law) of the Canton of Lucerne a fine of

500 Swiss Francs (CHF) on the applicant on account of professional

misconduct (Verletzung von Berufs- und Standespflichten).

30. In its decision the Supervisory Board found in particular that

the applicant had failed first to raise the charges at issue before the

Public Prosecutor's Office or the Court of Appeal. He had thus not

demonstrated the discretion called for in pending proceedings; he had

also demonstrated that in fact he wanted to obtain publicity. By not

filing an appeal he had also implied that the appeal bodies in the

Canton of Lucerne were not trustworthy. On the whole the applicant's

conduct called in question the reputation of the judiciary in the

Canton of Lucerne.

31. The applicant's public law appeal (staatsrechtliche Beschwerde)

was dismissed by the Federal Court (Bundesgericht) on 21 April 1994.

32. In its decision, the Court considered that the interference with

the applicant's right to freedom of expression was based on Section 12

of the Statute of the Bar of the Canton of Lucerne (see below, Relevant

domestic law). It also considered that lawyers had substantial freedom

(weitgehende Freiheit) to criticise the judiciary as long as the

criticism was duly expressed in the procedural forms. On the other

hand, lawyers had to refrain from conduct which could damage the

judiciary. When examining whether the interference occurred in the

public interest, it had to be considered how clear the alleged breaches

of the law were; whether pending proceedings could be influenced;

whether there was the possibility of introducing legal remedies; and

in what manner the charges were raised. The decision continues:

"It is true that one of the complaints - the applicant having

contested a possible practice of the District Office - was

subsequently upheld by the Court of Appeal of the Canton of

Lucerne. Contrary to the applicant's submissions, the

Supervisory Board considered this in the contested decision.

Apart from these reasons the charges raised in public were not

well-founded; they could also have influenced pending

proceedings. ... Furthermore the Supervisory Board reproached

the applicant for having chosen the wrong tone in respect of a

number of complaints at the press conference. This was also

explained in detail. It further alleged that the applicant had

not stated the truth when he said that he had no other means left

than going to the press. Yet at that time he had not even

attempted to obtain a reply by filing a regular remedy with the

statutory appeal organs. He could have been expected to proceed

in this manner, and subsequently he indeed proceeded along these

lines. In respect of all these points of view the applicant does

not present any convincing arguments ..."

"Es trifft zwar zu, dass eine der entsprechenden Rügen, mit

welcher der Beschwerdeführer eine möglicherweise gängige Praxis

des Amtsstatthalteramts angefochten hatte, später vom Obergericht

des Kantons Luzern geschützt wurde. Entgegen dem Vorbringen des

Beschwerdeführers hat die Aufsichtsbehörde dies im angefochtenen

Entscheid jedoch berücksichtigt. Abgesehen davon erwiesen sich

die öffentlich erhobenen Vorwürfe, die im übrigen geeignet waren,

ein hängiges Verfahren zu beeinflussen, nicht als berechtigt. ...

Weiter hat die Aufsichtsbehörde dem Beschwerdeführer angelastet,

dass er sich an der Presseorientierung bei mehreren seiner

Formulierungen im Ton vergriffen habe. Sie hat dies im einzelnen

auch begründet. Sie hat dem Beschwerdeführer ferner insofern

Wahrheitswidrigkeit vorgeworfen, als er die Anrufung der Presse

dieser gegenüber als letzten Weg bezeichnet hatte, obwohl er im

damaligen Zeitpunkt noch nicht einmal versucht hatte, sich auf

dem ordentlichen Weg bei den gesetzlichen Rechtsmittelinstanzen

Gehör zu verschaffen. Dieser Weg, den er nachträglich ja auch

beschritten hat, war ihm ohne weiteres zumutbar. Gegen alle diese

Gesichtspunkte bringt der Beschwerdeführer keine überzeugenden

Argumente vor."

33. The Court found that the measure had occurred in the public

interest and that the sanction was proportionate in that it was at the

lower end of the scale of fines.

B. Relevant domestic law

34. According to S. 12 para. 1 of the Statute of the Bar

(Anwaltsgesetz) of the Canton of Lucerne, the Supervisory Board

(Aufsichtsbehörde) may impose disciplinary sanctions on lawyers in

cases of a breach of professional ethics. S. 13 provides that the

lawyer concerned may be sanctioned with an admonition, a fine of up to

5,000 CHF, or with suspension from his professional activities.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

35. The Commission has declared admissible the applicant's complaint

that the disciplinary sanction imposed on him breached his right to

freedom of expression.

B. Point at issue

36. The point at issue is, therefore, whether there has been a

violation of Article 10 (Art. 10) of the Convention.

C. Article 10 (Art. 10) of the Convention

37. The applicant complains that the disciplinary sanction imposed

on him breaches his right under Article 10 (Art. 10) of the Convention

to freedom of expression.

38. Article 10 (Art. 10) of the Convention states:

"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 and regardless of frontiers. This Article shall not

prevent States from requiring the licensing of broadcasting,

television or cinema enterprises.

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, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

39. The applicant stresses that what he told the journalists was

true. He had criticised violations of human rights at the Hochdorf

District office which did in fact occur, as the judgment of the Lucerne

Court of Appeal had found. He furthermore alleges that it would not

have been effective to try ordinary remedies. The only way for him to

criticise and remedy the situation was to inform the public via the

press.

40. The applicant submits that the accused S. had been in custody for

six weeks without seeing a judicial officer; he had also not been

represented by a lawyer. When the applicant eventually became his

lawyer, the wife of the detainee was told that he would remain in

custody as long as he was represented by the applicant.

41. The respondent Government submit that the interference with the

applicant's right to freedom of expression complied with the conditions

under Article 10 para. 2 (Art. 10-2) of the Convention. The legal

basis of the measure was Article 12 (Art. 12) of the Statute of the Bar

of the Canton of Lucerne. Moreover, the interference served the

purpose of "the protection of ... the rights of others" and of

"maintaining the authority and impartiality of the judiciary" within

the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

42. The Government also submit that the measure was "necessary in a

democratic society" within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention. They refer to the Federal Court's

case-law according to which it may be in the public interest to inform

the public of a violation of human rights. However, when there are

conflicting interests to be weighed, a number of different elements

must be taken into consideration. These include the degree to which

other interests are affected, e.g. a possible interference with

proceedings which are pending, the possibility of alternative ways to

remedy the problem or the way in which the complaints have been

presented.

43. The Government contend that in the present case both the moment

and the manner of presenting the complaints were badly chosen by the

applicant. His statement did not only bring forward very serious

accusations but it was also resentful and aggressive and, with one

exception, wrong. Moreover, the applicant had not introduced any

judicial remedies before giving his press conference. Finally, the

sanction imposed, a fine of 500 CHF, was moderate.

44. The Commission considers that the disciplinary sanction imposed

on the applicant constituted an interference with his rights under

Article 10 para. 1 (Art. 10-1) of the Convention. The Commission must

therefore examine whether this interference was justified under

Article 10 para. 2 (Art. 10-2) of the Convention.

45. The Commission observes that the Lucerne authorities, when

imposing the disciplinary sanction of a fine of 500 CHF on the

applicant, relied on SS. 12 and 13 of the Statute of the Bar of the

Canton of Lucerne. According to these provisions, the Supervisory

Board of the Bar will sanction breaches of professional misconduct.

The Board may impose disciplinary penalties of up to a fine of

5,000 CHF or suspend the lawyer from his professional activities.

46. The interference was therefore "prescribed by law" within the

meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

47. Moreover, as the Federal Court pointed out in its decision of

21 April 1994, the interference aimed at maintaining "the authority and

impartiality of the judiciary" within the meaning of this provision.

48. In examining whether the measure was "necessary in a democratic

society" within the meaning of Article 10 para. 2 (Art. 10-2) of the

Convention, the Commission recalls that freedom of expression

constitutes one of the essential foundations of a democratic society;

subject to paragraph 2 of Article 10 (Art. 10-2), it is applicable not

only to "information" or "ideas" that are favourably received or

regarded as inoffensive or as a matter of indifference, but also to

those that offend, shock or disturb. Freedom of expression, as

enshrined in Article 10 (Art. 10), is subject to a number of exceptions

which, however, must be narrowly interpreted and the necessity for any

restrictions must be convincingly established (see Eur. Court HR,

Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A

no. 239, p. 27, para. 63; Barfod v. Denmark judgment of 22 February

1989, Series A no. 149, p. 12, para. 28).

49. The right to freedom of expression of lawyers raises particular

issues. Their special status gives them a central position in the

administration of justice as intermediaries between the public and the

courts. Such a position explains the usual restrictions on the conduct

of members of the Bar, and also the monitoring and supervisory powers

vested in Bar councils. Because of their direct, continuous contact

with their members, the Bar authorities and the country's courts are

in a better position to determine how, at a given time, the right

balance can be struck between the various interests involved, namely

the requirements of the proper administration of justice, and the

dignity of the profession (see Eur. Court HR, Casado Coca v. Spain

judgment of 24 February 1994, Series A no. 285-A, p. 21, paras. 54

and 55).

50. In the present case, the Commission notes that the applicant was

not sanctioned for expressing his opinion as such. Rather, as the

Federal Court stated in its decision of 21 April 1994, lawyers had a

substantial freedom to criticise the judiciary as long as the criticism

was duly put forward in the procedural forms. In particular, lawyers

had to refrain from conduct which could damage the judiciary (see

above, para. 32).

51. The Swiss authorities also considered that the applicant had

chosen the wrong tone in respect of a number of his statements. In the

Commission's opinion, the applicant exaggerated his complaints, for

instance, when stating that he was being "fooled" by the District

Office, or that for years the Hochdorf District Office had been

breaching the laws of the Canton of Lucerne and human rights to the

highest degree (see above, paras. 18 et seq.).

52. The Commission further observes that the applicant failed first

to employ the regular remedies available to him in order to raise his

complaints which he ventilated at the press conference. He has not

argued that these remedies would have been fruitless. Indeed, after

the applicant held the press conference he did introduce appeal

proceedings, and in fact one of his complaints was confirmed by the

Court of Appeal of the Canton of Lucerne on 30 November 1992 (see

above, para. 27).

53. Moreover, the applicant raised the allegations while criminal

proceedings were pending against his client. He could thus be seen as

attempting to put pressure on the Hochdorf investigating authorities,

and as undermining the independence of the judiciary in general.

54. Finally, the Commission considers that the fine of 500 CHF was

at the lower end of the scale envisaged in S. 13 of the Statute of the

Bar of the Canton of Lucerne (see above, para. 34).

55. Taking into account the margin of appreciation which is left to

Contracting States in such circumstances (see Eur. Court HR, Lingens

v. Austria judgment of 8 July 1986, Series A no. 103, p. 25, para. 39),

and also the fact that the exercise of freedom of expression "carries

with it duties and responsibilities", the Commission does not find that

the Swiss authorities, when imposing the disciplinary sanction on the

applicant, acted unreasonably in balancing the various interests

involved.

56. The Commission therefore considers that the interference with the

applicant's right to freedom of expression was not in violation of

Article 10 (Art. 10) of the Convention in that it could reasonably be

considered "necessary in a democratic society ... for maintaining the

authority and impartiality of the judiciary" within the meaning of this

provision.

CONCLUSION

57. The Commission concludes, by 9 votes to 6, that in the present

case there has been no violation of Article 10 (Art. 10) of the

Convention.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

(Or. English)

DISSENTING OPINION OF MRS. G.H. THUNE, MM. A. GÖZÜBÜYÜK,

J.-C. SOYER, H. DANELIUS, M.A. NOWICKI AND J. MUCHA

We agree with the majority that the interference with the

applicant's rights under Article 10 para. 1 of the Convention was

"prescribed by law" and aimed at maintaining "the authority and

impartiality of the judiciary" within the meaning of Article 10 para. 2

of the Convention.

However, we disagree as to whether the measure was "necessary in

a democratic society" within the meaning of Article 10 para. 2 of the

Convention.

It is true that in the present case the Federal Court found in

its decision of 21 April 1994 that lawyers had a substantial freedom

to criticise the judiciary as long as the criticism was duly put

forward in the procedural forms. The Court noted in particular that

lawyers had to refrain from conduct which could damage the judiciary,

and that the applicant could have been expected to obtain a reply by

first filing a regular remedy with the statutory appeal organs (see

above, para. 32).

However, the applicant did pursue his criticism in the procedural

forms, in particular by filing an appeal with the Court of Appeal of

the Canton of Lucerne (see above, para. 27). Nevertheless, in our

opinion it is legitimate for a lawyer to employ various means to put

forward his client's case, and the applicant did not act unlawfully

when deciding to hold a press conference.

The applicant, a former member of parliament, believed that he

had come across a problem of general importance. With his press

conference, he aimed at bringing about a public debate on, and possibly

a speedy reaction to, the situation at the Hochdorf District Office,

even while criminal proceedings were pending against his client.

In our opinion, it cannot be said that the applicant's concerns

about the situation at the Hochdorf District Office were unreasonable.

Upon his appeal, one of his complaints was confirmed by the Court of

Appeal of the Canton of Lucerne on 30 November 1992 (see above,

para. 27). Moreover, the "Luzerner Neueste Nachrichten" reported on

its own accord about other substantial charges which had previously

been levelled against one of the District Officers concerned (see

above, para. 20).

The language employed by the applicant at the press conference,

although polemic, did not in our view go beyond the limits of

acceptable criticism. Thus, according to the newspaper "Luzerner

Neueste Nachrichten", he complained that he would "no longer let

(himself) be fooled by these gentlemen" and that he "(had) had enough".

He claimed that the District Registrars had breached the Code of

Criminal Procedure, demanding that they immediately step down and a

neutral commission examine the matter (see above, paras. 19 et seq.).

Another newspaper, the "Luzerner Zeitung", stated that the applicant

"(had accused) the Hochdorf District Office of breaching the law" (see

above, para. 22).

While it is true that Article 10 of the Convention leaves a

margin of appreciation to Contracting States in such circumstances (see

Eur. Court HR, Lingens v. Austria judgment of 8 July 1986, Series A

no. 103, p. 25, para. 39), we consider that freedom of expression is

of special importance for a free debate on matters of public

importance, such as the operation of the administration of justice (see

Eur. Court HR, Sunday Times v. United Kingdom judgment of

27 October 1978, Series A no. 30, p. 40, para. 65).

In our opinion, the disciplinary measure complained of was not

proportionate to the legitimate aim pursued and, accordingly, was not

"necessary in a democratic society ... for maintaining the authority

and impartiality of the judiciary" within the meaning of Article 10

para. 2 of the Convention.

We conclude, therefore, that in the present case there has been

a violation of Article 10 of the Convention.

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SCHÖPFER v. SWITZERLAND

SCHÖPFER v. SWITZERLAND

LEXI