Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30549/96

by Hans MEISTER

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 10 April 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

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 11 March 1996 by

Hans MEISTER against Germany and registered on 22 March 1996 under file

No. 30549/96;

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 1930, is a German national and resident

in Düsseldorf. He is a lawyer by profession.

His previous Application No. 12306/86 was declared inadmissible

in 1988. It concerned the applicant's complaint that his disciplinary

punishment in 1981 and 1983, respectively, for having, in his capacity

as a lawyer, made insulting statements violated his right to freedom

of expression. Application No. 25157/94 concerning his disciplinary

punishment in 1993 was declared inadmissible in October 1995.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

On 25 April 1994 the Düsseldorf District Disciplinary Court for

Lawyers (Ehrengericht) issued a reprimand (Verweis) against the

applicant and imposed a fine of DEM 40,000 upon him for having violated

professional rules (anwaltliche Pflichtverletzung).

In its decision, the Disciplinary Court noted the applicant's

previous four disciplinary punishments in 1979, 1981, 1983, 1986 and

1992, respectively.

As regards the present disciplinary punishment, the Disciplinary

Court of Appeal considered that the following two sets of events.

The Court found first that in December 1992 the applicant, after

having assisted a Nigerian accused in criminal proceedings on charges

of fraud in 1991/92, had addressed a hierarchical complaint

(Dienstaufsichtsbeschwerde) to the North-Rhine Westphalia Minister of

Justice (Justizminister) in which he had criticised the conduct of the

judges at the Wuppertal Regional Court (Landgericht) in the above

proceedings and their judgment, and had further stated that "obviously

the case had been tried by highly irritable idiots whose powers had

gone to their heads" ("Offenbar haben hier hochreizbare Stießel zu

Gericht gesessen, denen ihre Macht zu Kopf gestiegen ist."). Following

a reply by the President of the Wuppertal Regional Court that, having

regard to the independence of the judiciary, the legal assessment by

the judges concerned could not be reviewed, the applicant had again

written to the Minister of Justice. In a letter of 10 February 1993,

he had questioned "whether he could still expect that [the Minister]

would take any measure to stop the proven judicial arbitrariness"

("Kann ich damit rechnen, daß Sie noch etwas tun werden, was der

erwiesenen richterlichen Willkür Einhalt gebietet?"). Moreover, he

further stated that, should the Minister also refer to the independence

of the judiciary, "he would regard him as being one of these clowns

who, as a result of their idle talk, had forgotten about the imperative

needs of a State" ("... sind auch Sie für mich einer jener Hanswurste,

denen vor lauter Geschwätz der Nerv für die Notwendigkeiten eines

Staates abhanden gekommen ist."). Upon the Minister's reply confirming

the position of the President of the Regional Court, the applicant, in

submissions to the Minister of 10 April 1993, had reproached him with

"washing his hands of it with legally imposed stupidity and acting with

impudence towards the people whom he was supposed to serve" ("... Sie

Ihre Hände in der Unschuld gesetzlich verordneter Dummheit waschen und

Frechheit gegenüber dem Volk, dem Sie dienen sollen.").

Secondly, the applicant, in submissions to the Neustadt

Administrative Court (Verwaltungsgericht) of 29 December 1992, had

criticised a decision of that Court refusing an interim injunction,

apparently in expulsion proceedings. He had, inter alia, stated that

the decision was "biased idle talk" ("voreingenommenes Geschwätz") and

"shameless deception" ("schamloser Betrug"). Following complaints

raised by the President of the Administrative Court with the competent

Düsseldorf Bar Association (Rechtsanwaltskammer), the applicant had

been requested to comment upon the matter. He had again written to the

President of the Administrative Court requesting him that the above

decision be reviewed. He had further assumed that the President would

refuse such review although "the decision in question was bristling

with impudence and idleness" ("... der ergangene Beschluß von

Dreistigkeit und Faulheit strotzt.").

The Disciplinary Court considered that in the above cases the

applicant had violated his professional duties within the meaning of

the S. 43 of the Federal Regulations for Lawyers (Bundesrechtsanwalts-

rdnung).

According to S. 43, 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. Referring to the

jurisprudence of the Federal Constitutional Court

(Bundesverfassungsgericht), the Disciplinary Court observed that a

violation of the professional duty of objectivity (Sachlichkeitsgebot)

could entail disciplinary measures to the extent that the criminal

offences of insult or defamation were at issue and that the other

person or the course of the proceedings had not given rise to such

statements.

The Disciplinary Court examined the applicant's above-mentioned

statements in the light of these principles and gave detailed reasons

that they were of an insulting character without this being necessary

for the purposes of each of the proceedings concerned. The Court noted

in particular that these insulting statements had been made following

the termination of the respective court proceedings.

On 20 September 1994 the North-Rhine Westphalia Disciplinary

Court of Appeal (Anwaltsgerichtshof), following a hearing, dismissed

the applicant's appeal (Berufung). The Disciplinary Court of Appeal

ordered that the case should not be subject to an appeal on points of

law (Revision).

On 19 June 1995 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 (Beschwerde

gegen die Nichtzulassung der Revision).

On 27 September 1995 the Federal Constitutional Court refused to

entertain the applicant's constitutional complaint (Verfassungs-

beschwerde).

COMPLAINTS

The applicant complains under Article 10 of the Convention about

the decision of the Düsseldorf Disciplinary Court of 25 April 1994,

issuing a reprimand against him and imposing a fine for violation of

professional duties.

THE LAW

The applicant complains that his disciplinary punishment

infringed his right to freedom of expression. He invokes Article 10

(Art. 10) of the convention which 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 notes that on 25 April 1994 the Düsseldorf

Disciplinary Court for Lawyers, as confirmed by the North-Rhine

Westphalia Disciplinary Court of Appeal, found the applicant guilty of

having violated his professional duty of objectivity on numerous

counts. The Disciplinary Court considered that, in various written

submissions with German courts and the North-Rhine Westphalia Minister

of Justice, the applicant had made insulting statements about judges

and the Minister of Justice which he regarded as having decided or

acted incorrectly in the context of, or in relation to, court

proceedings.

The Commission finds that this measure constituted an

interference with the exercise of the applicant's freedom of

expression. 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 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 to protect "the

reputation or rights of others", namely the judges and the Minister of

Justice 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 notes that disciplinary proceedings were conducted

against the applicant for breach of the professional duties, namely for

having insulted judges and the Minister of Justice in written

statements relating to court proceedings.

The Commission considers that the Disciplinary Court, in a very

detailed reasoning, examined the applicant's various submissions which

were considered to be of an insulting nature. The Court had regard to

the applicant's concern to protect the rightful interests of his

clients, however, also noted that he had made these statements after

termination of the respective proceedings. The Court's findings were

confirmed by the Disciplinary Court of Appeal and the applicant's

complaints with the Federal Court of Justice and the Federal

Constitutional Court remained unsuccessful.

The Commission finds that the Courts duly balanced the

applicant's concern to protect the rightful interests of his clients

and right to lodge complaints against the necessity, in a democratic

society, to protect the reputation and rights of others, here in

particular judges, against insult. Having considered the impugned

statements, the Commission finds that 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 40,000 because of the applicant's recidivism,

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 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, 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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MEISTER v. GERMANY

MEISTER v. GERMANY

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