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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

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WINTER v. GERMANY

WINTER v. GERMANY