Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22103/93

by Sigurdur GEORGSSON

against Iceland

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, 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 3 May 1993 by

Sigurdur GEORGSSON against Iceland and registered on 21 June 1993 under

file No. 22103/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 23 March 1995 and the observations in reply submitted by

the applicant on 15 May 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Icelandic citizen, born in 1946. He resides

in Reykjavík and is a lawyer by profession. Before the Commission he

is represented by Mr. Magnús Thoroddsen, a lawyer practising in

Reykjavík.

The facts of the case, as submitted by the parties, may be

summarised as follows.

A. The particular circumstances of the case

The applicant represented Mrs HM in the course of the public

settlement procedure of the estate of her late father, Mr MO, who died

on 28 December 1983. Mrs HM was the sole legal heir.

On 5 January 1984 the applicant requested on behalf of his client

that the Town Magistrate of Hafnarfjördur put the flat of the deceased

under seal and that the status as regards the assets and liabilities

of the estate be officially ascertained. The Magistrate sealed the flat

at once, and decided that the estate's status would be examined in due

course. On 12 January 1984 the estate was formally received by the

Magistrate for official settlement proceedings. On that occasion the

nephew of the deceased, Mr OH, submitted a will dated 26 October 1983,

signed by the deceased, in which he assigned one third of his property

to OH and a purchase agreement dated 26 October 1983 whereby MO sold

his flat in Hafnarfjördur to OH. The applicant contested the will and

the purchase agreement and demanded that an official investigation be

conducted of their origins. Therefore the Probate Court judge in charge

of the case, Mr MP, drew the applicant's attention to the possibility

of submitting a reasoned complaint to the State Criminal Investigation

Police. On the following day, 13 January 1984, the applicant sent his

complaint to the Criminal Investigation Police, and described his

suspicions relating to the origins of the said documents. The Police

sent the complaint to the Public Prosecutor, who considered that there

were not at the time sufficient reasons to order an investigation.

In the first half of 1984 the Probate Court judge, Mr MP,

conducted a detailed examination for the purposes of the settlement of

the estate, which involved, among other things, hearings, examination

of bank accounts, and an investigation into the financial management

of OH on behalf of the deceased. On 7 June 1984 the two witnesses to

the testamentary disposition provided a statement in court to the

effect that they had attested to the will in the presence of the

deceased. At this time the applicant requested that the valuables in

the possession of OH be taken into the possession of the Probate Court.

Since a request of this nature was not, under domestic law, a matter

for the Probate Court to decide, the Probate Court judge could only

dismiss the request. The applicant appealed against this decision of

dismissal to the Supreme Court which upheld it in a judgment of

5 October 1985.

On 6 July 1984 the Probate Court judge sent the entire case file

to the Public Prosecutor. On 2 December that year, while the case file

was still with the Public Prosecutor, it was established in the Probate

Court, by a statement provided by one of the testamentary witnesses,

that the contested will left by the deceased was only attested after

his death. Subsequently, OH confessed that he had induced the witnesses

to present incorrect statements in court to the effect that the will

had been properly attested. On 10 January 1985 the Probate Court judge

informed the Public Prosecutor of the further developments and

transmitted the documents which had been submitted in court. Following

an examination the Public Prosecutor issued an indictment on

18 April 1986 against OH and the two witnesses.

In the meantime, on 22 January 1986, the Probate Court judge,

Mr MP, handed the valuables in the possession of the estate over to the

sole heir, Mrs HM. This occasion was the last formal meeting held by

the Probate Court judge in connection with the settlement.

Some delays occurred in the handling of the action in the

Criminal Court of Hafnarfjördur against OH and the two witnesses. A

judgment in the criminal case was rendered on 12 December 1990. The two

witnesses were sentenced for presenting wrongful statements in court.

OH was sentenced for embezzling approximately 1,000,000 ISK which he

had hidden while the settlement of the estate was taking place, and

also for his complicity in the crime of the two witnesses.

On 28 May 1992 the weekly Pressan published an article on the

probate case in question. The article read as follows:

(Translation)

"DEPRIVED THE HEIRS OF THEIR INHERITANCE

The probate judge in Hafnarfjördur disregarded a lawyer's

request for a police investigation of a forged testament

and of doubts as to the veracity of submitted documents.

The sole heir now contemplates whether the State Treasury

is liable for damages by reason of MP's blunders.

In the news of Pressan during the past two weeks the

official functions of the district court judge in

Hafnarfjördur have been subject to scrutiny. One of the

things mentioned was an indictment issued by the Office of

the Public Prosecutor against OH and two witnesses, and

also against the solicitor and real estate agent who was

acquitted. This legal action concerned forgery on the part

of OH of the testament of MO by which assets of the estate

are awarded to OH, but HM, MO's only daughter, should have

been the only heir to the estate. The two witnesses were

found guilty of having attested to the testament after MO's

death.

HM now contemplates whether she is entitled to damages from

the State Treasury by reason of the probate judge's

handling of this case.

...

THE ESTATE LOST

The assets of the estate have now been lost, and HM has, in

effect, been deprived of her inheritance. OH managed the

estate's assets, but now they are lost, as OH is bankrupt.

The dispositions made ... were held to have been

unauthorised, and (OH) was said to have embezzled

1,083,459 ISK (about 2.5 million ISK at today's price

levels).

The facts of the case are that MO died at Vílfilsstadir

hospital in late December 1983. On 12 January 1984 his

estate at death was received for official probate

proceedings by the Probate Court of Hafnarfjördur, the

estate comprising real property at ... Hafnarfjördur, a

car, furnishings and chattels. The probate judge was the

Town Magistrate of Hafnarfjördur and County Magistrate of

Kjósarsysla, Mr MP.

FORGED DOCUMENTS

OH submitted a forged will in the Probate Court, with two

purchase agreements relating to the flat. The flat had been

closed under seal on 5 January 1984 at HM's request, but

the seal was removed when the court procedure commenced.

(The applicant), HM's lawyer, requested that the flat be

sealed again and that an official examination be made of

the documents submitted by OH.

(The applicant) furthermore requested an investigation of

whether OH had in his possession chattels or other moveable

property belonging to the estate, such as a TV set, a

piano, books, furniture or paintings. He also wanted to

have bank account entries examined, as well as the

whereabouts of the monies which OH stated that he had paid

to the deceased. This concerned, among other things, a

downpayment for a flat in Akureyri which OH had sold for

the deceased. OH had no receipts in his possession by which

he could demonstrate that the money had been delivered to

the deceased.

Mr MP denied these requests. The Public Prosecutor, in a

letter of 17 January 1985, did not consider that a criminal

investigation was required, except if requested by the

probate judge. It later came to light that money had been

appropriated by OH and that chattels belonging to the

estate were in his possession.

`I had serious doubts about the veracity of the submitted

documents, and I was suspicious of them', (the applicant)

said. `I asked repeatedly that settlement of the estate be

deferred. I also reported this to the Criminal

Investigation Police, who later established that the will

was forged. By then the defendant had received all the

valuables'.

WHAT IS NEEDED IN ORDER TO CONVINCE

A PROBATE JUDGE?

It may be asked at this juncture how long a probate judge

can disregard the requests of lawyers. The probate judge

probably did not think that the proofs and the documents

had the requisite legal form to justify delaying the

proceedings. `There may be a question what needs to be

established in order for the Probate Court judge to defer

the procedure', said (the applicant).

A lawyer whom Pressan consulted pointed out that OH's

criminal record certificate had provided a reason for MP to

take the lawyer's requests into account. MP could not be

contacted in order to obtain his comment on this point.

It is indicated in OH's statements to the Probate Court,

that no receipts or signatures of the deceased had been

available on account of gifts which OH reportedly had

received, saving account deposits included. OH maintained

that the deceased had, over the four month period from

August 1983 until MO's death, donated to him most of his

property.

At the beginning of December 1984 one of the witnesses

changed the statement previously given, and then it came to

light that the will was forged and had been signed after

MO's death."

The Probate Court judge reacted to the newspaper article by

sending letters to the Icelandic Bar Association dated 1, 4 and

12 June 1992, requesting that the Board of the Association ask the

applicant whether certain expressions which were published within

quotation marks in the article in Pressan had been quoted after the

applicant, and whether the applicant had been the newspaper's source

of certain assertions included in the article. He then requested that

the applicant be admonished and ordered to pay a fine of 50,000 ISK to

the Support Fund of the Icelandic Bar Association on account of the

conduct evinced by him in his profession, namely discussion in the mass

media and with a mass media reporter of a court case handled by him,

where he uttered incorrect and defamatory statements and wilfully

presented incorrect and defamatory information unbecoming to the legal

profession. The request was supported by references to the Act on the

Members of the Bar No. 61 of 14 July 1942 (hereinafter the 1942 Act)

and the Code of Ethics of the Icelandic Bar Association, in particular

sections 2, 5 and 18.

During a meeting of the Board of the Icelandic Bar Association

on 14 October 1992 a decision was taken to admonish the applicant on

account of his expressions in the newspaper article in question

concerning the Probate Court judge's handling of the case. In its

decision the Board stated as follows:

(Translation)

"In the Board's opinion the question at issue in this case

is first and foremost whether (the applicant) acted

contrary to section 18 of the Association's Code of Ethics

when he answered the reporter's questions, i.e. whether he

failed in his statements to show (the Probate Court judge)

due consideration and respect, or whether he criticised

(the judge's) functions or procedures in an impertinent or

unprofessional manner.

The Board considers that professional lawyers must show

moderation and restraint when they express themselves on

the functions and procedures of the courts, as required by

section 18. It is immaterial whether such discussion takes

place in the mass media or elsewhere. They must thus be

careful that judicial matters are discussed in a pertinent

and orderly fashion, and that wrong or misleading

information on the facts of a case is not disseminated.

When examining the evidence in this case, and having regard

to the fact that (the applicant) took care of the interests

of the only daughter of the deceased from the beginning of

the probate court procedure and thus was aware of the facts

of the matter, the statements quoted from him must be

regarded as misleading in various respects and suited to

provide the reporter with an opportunity to make incorrect

deductions. By the statement 'I asked repeatedly that

settlement of the estate be deferred. I also reported this

to the Criminal Investigation Police, which later

established that the will was forged. By then the defendant

had received all the valuables', (the applicant) clearly

indicates that all the estate's valuables came into the

possession of the nephew of the deceased as a consequence

of the Probate Court judge's actions, but according to the

case documents this was not so. Furthermore, it was not the

complaint of (the applicant) to the State Criminal

Investigation Police of 13 January 1984 which made it

possible to demonstrate that the will had been wrongfully

prepared; this was brought about by a confession on the

part of one of the witnesses to the will before the

Criminal Court of Hafnarfjörddur on 2 December 1984.

In the Board's opinion (the applicant) did not act contrary

to section 5 of the Code of Ethics of the Icelandic Bar

Association by providing answers to the reporter's direct

questions. On the other hand the Board considers, by

reference to the above, that (the applicant) did not

adequately observe his duty under section 18, cf. also for

reference section 2, and thus acted contrary to the

Association's Code of Ethics.

With the above in view and with reference to section 8,

subsection 3, of the 1942 Act, the Board admonishes (the

applicant) by reason of the aforesaid.

CONCLUSION

(The applicant), Supreme Court lawyer, is admonished."

The applicant appealed against this decision to the Supreme Court

on 21 October 1992. He maintained that his statements could not be

deemed punishable within the meaning of the Bar Association's Code of

Ethics which had to be interpreted in the light of the right to freedom

of expression secured by the Icelandic Constitution and the European

Convention on Human Rights.

By judgment of 17 December 1992 the Supreme Court upheld the

decision. The Supreme Court did not state any reasons other than

referring to the decision of the Board of the Bar Association.

B. Relevant domestic law

The 1942 Act contains various general rules applying to the

members of the Bar and other legal representatives before the courts.

Section 1 of the 1942 Act specifies that barristers in the district

courts and the Supreme Court are charged with public functions, and

thus have various rights and duties, including a duty of silence as

regards matters confided to them by a client. The Act also enumerates

the conditions to be fulfilled in order to obtain a licence to practise

as barristers, and under what circumstances such a licence can be

revoked.

The Icelandic Bar Association is an association of barristers.

The existence of the Association is provided for by law, cf. section 7

of the 1942 Act which, at the relevant time, read as follows:

(Translation)

"Barristers before the district courts and the Supreme

Court shall be members of an association, the Board of

which shall represent them to judicial and administrative

authorities in matters concerning the legal profession. The

rules of the association shall be submitted to the Minister

of Justice, who shall approve them or withhold approval."

Section 8 of the 1942 Act describes further the main purposes of

the Icelandic Bar Association, including its control responsibilities

and its judicial authority in certain cases. At the relevant time

section 8 read as follows:

(Translation)

"The Board of the association of district court and Supreme

Court barristers shall control that the members observe the

law in their profession and perform their duties faithfully

and conscientiously. The Board is competent to resolve

disputes relating to fees for legal representation, if a

dispute concerning such fees is referred to it.

The Board of the association shall keep the activities of

the persons preparing to become district court barristers

under observation. The Ministry of Justice shall seek the

opinion of the Board of the association before issuing

professional licences for legal representation in district

courts.

The Board of the association may admonish individual

members and order the payment of fines of up to 50,000 ISK

to the Support Fund of the association on account of

conduct evinced by them which is to be regarded as

unbecoming to the legal profession.

Decisions of the Board of the association as provided for

in this section are subject to summary appeal to the

Supreme Court."

The Icelandic Bar Association issues a Code of Ethics for its

members. The Code describes the general principles of good legal

practice, a barrister's duties to clients, to the courts, to fellow

professionals and to the opposite party, law offices and

advertisements, and, finally, provides for sanctions in case its

precepts are violated.

Section 2 of the Code expresses the general principle that a

barrister shall, in his or her professional as well as private

activities, protect the honour of the legal profession.

Section 5 of the Code reads as follows:

(Translation)

"A barrister may not, in the news media or in other public

fora, discuss or write about cases on which he is or has

been working, nor cause his own or his client's name to be

publicly mentioned in connection with such cases, except if

this is required by the legitimate interests of his client,

the public, or the barrister himself.

Having obtained the client's approval, questions concerning

individual points or facts of a case which are already in

public knowledge may however be directly answered, and a

barrister is generally free to object to or correct wrong

or misleading information on such matters.

Pertinent spoken or written discussion is also allowed of

cases already concluded which are of significance for the

legal profession or in legal theory, for example during

meetings of jurists or in legal periodicals, but anonymity

shall be observed as applicable.

A barrister shall always consult with the Board of the

Association in cases of doubt."

Section 18 provides for certain particular duties to be observed

by barristers in connection with their discussions of matters

concerning the judiciary. This provision reads:

(Translation)

"A barrister shall show the courts due consideration and

respect in speech, writing and conduct.

The courts may only be criticised on the basis of

professional and pertinent considerations."

Finally, section 40 of the Code of Ethics reads as follows:

(Translation)

"The Board of the Association shall supervise the

observance of the above principles. In this respect the

Board shall consult the courts and administrative

authorities as appropriate.

A barrister is obliged, at the request of the Board, to

provide the Board with an adequate explanation of a case

involving him concerning an alleged violation of, or a

dispute relating to the interpretation of, the above

principles.

In this regard a barrister is obliged, without undue delay,

to reply to the questions and heed the summons of the

Board.

Any dispute between members concerning the interpretation

of the above principles is subject to the Board's

resolution in accordance with Article 11 of the

Association's rules.

The Board of the Association may admonish individual

members and impose fines to be paid to the Support Fund of

the Association by reason of violation of the above

principles, as provided for in the 1942 Act, section 8.

If a decision or opinion of the Board provided in

accordance with section 5 is published, the names of the

parties concerned shall only be mentioned if the Board

considers this necessary, for example in view of the

interests of other members or by reason of the Board's

earlier involvement."

COMPLAINTS

The applicant complains that he has been impeded in exercising

his right to freedom of expression contrary to Article 10 of the

Convention. His comments were neither abusive nor defamatory and they

were expressed in good faith without malice. The applicant contests

that he can be held liable for the journalist's deductions from his

statements. He finally submits that the admonition was not necessary

in a democratic society nor justified under any of the other criteria

stated in the second paragraph of Article 10 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 May 1993 and registered on

21 June 1993. On 11 January 1995 the Commission (Second Chamber)

decided that notice of the application should be given to the

respondent Government and invited them to submit written observations

on the admissibility and merits thereof.

The Government's observations were submitted on 23 March 1995 and

the applicant's observations in reply were submitted on 15 May 1995.

THE LAW

The applicant complains that his right to freedom of expression

has been infringed in that he was the subject of an admonition for his

comments quoted in a newspaper article. He invokes Article 10 (Art. 10)

of the Convention which reads 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 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."

The applicant maintains in particular that the interference was

not justified and thus not "necessary in a democratic society". The

Government submit, on the other hand, that the restriction served a

pressing social need, in particular when considering that the

expressions in question, in the Government's view, involved untrue

allegations which needlessly cast doubt upon the functions performed

by the Probate Court judge and, thus, were suited to detract from

public trust in the courts.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and of fact

under the Convention, the determination of which should depend on an

examination of the merits of the application as a whole. The Commission

concludes, therefore, that the application is not manifestly ill-

founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for declaring it inadmissible have been

established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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GEORGSSON v. ICELAND

GEORGSSON v. ICELAND

LEXI