Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28439/95

by Alfred STOPP

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 2 March 1995 by

Alfred STOPP against Germany and registered on 4 September 1995 under

file No. 28439/95;

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 1940, is a German national and resident

in Munich. He is an accountant by profession.

In March 1991 the applicant's mother instructed a law firm, Mr.

L. and partners, to represent her in administrative court proceedings,

and in particular to advise her on the prospect of success of an appeal

to the Federal Administrative Court. The applicant's mother, having

been informed that such an appeal would not have any prospect of

success, withdrew the power of attorney. The law firm claimed fees

amounting to about DM 530 which were awarded by the Munich District

Court (Amtsgericht) in May 1992.

On 28 August 1992 the applicant requested the Munich Lawyers'

Association (Rechtsanwaltskammer) to take disciplinary measures against

Mr. L. and partners, charging them and in particular one of the

partners, Mr. G., of improper conduct in representing his mother.

According to the applicant, that they had, by all means and also in

cooperation with the other party, prevented the continuation of the

administrative court proceedings concerned, but nevertheless

subsequently claimed fees which could not be justified at all, and that

they presumably often did so. These submissions were drafted on

official paper with the heading of a registered association defending

the interests of accountants, presided over by the applicant. The

applicant also announced his intention to publish his statements in the

circulars issued by the registered association.

On 19 October 1992 the Munich I Regional Court (Landgericht),

upon the request by Mr. L. and partners, issued an interim injunction

(einstweilige Verfügung) prohibiting the applicant, as well as the said

registered association, from repeating the above statements.

On 17 December 1993, in the proceedings regarding the main

action, the Munich Regional Court issued an injunction against the

applicant and the association concerned, prohibiting them from

repeating the following statements: the plaintiffs, in particular

Mr. G., had, in the context of administrative proceedings brought by

the applicant's mother against the Munich Municipality, attempted to

stop the continuation of these proceedings by all means; that they had,

contrary to their client's interests, entered into an agreement with

the defendant in order to stop the continuation of the proceedings;

that they had claimed fees without having rendered any services; and

that they presumably often did so. In its decision the Regional Court

referred to the relevant provisions of the German Civil Code

(Bürgerliches Gesetzbuch) on the right to an injunction in cases of

tort (unerlaubte Handlung). The Regional Court, examining the

circumstances of the plaintiffs' instructions and their conduct, found

that the applicant's allegations, which amounted to an accusation of

clients' betrayal (Parteiverrat), were wrong. The Court also observed

that the applicant had failed to justify his statements which

deliberately disparaged the plaintiffs and could damage their

professional reputation. Furthermore, the applicant did not have any

legitimate interest in imparting false information of the instant kind

to the Lawyers' Association, notwithstanding its general competence to

examine complaints about lawyers, or to the general public.

On 23 December 1993 the Munich Court of Appeal

(Oberlandesgericht) dismissed the defendants' appeal (Berufung). The

Court of Appeal confirmed the reasoning of the Regional Court.

On 11 January 1995 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde).

COMPLAINTS

The applicant complains under Article 10 of the Convention about

the injunction prohibiting him from repeating his statements about the

allegedly improper conduct of the law firm of Mr. L. and partners.

THE LAW

The applicant complains about the Munich I Regional Court

decision of 23 September 1994, as confirmed by the Munich Court of

Appeal on 17 December 1993.

Article 10 (Art. 10) of the Convention, as far as relevant,

provides:

"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 the impugned measure was an

interference with the applicant's exercise of his freedom of

expression. The fact that, in a given case, that freedom is exercised

other than in the discussion of matters of public interests does not

deprive it of the protection of Article 10 (Art. 10) (Eur. Court H.R.,

Jacubowski judgment of 23 June 1994, Series A no. 291-A, p. 13, para.

25). Such interference is in breach of Article 10 (Art. 10), unless

it is justified under paragraph 2 of Article 10, 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 interference was "prescribed by law", namely the relevant

provisions of the Civil Code. It also pursued a legitimate aim under

the Convention, i.e. "the protection of the reputation or rights of

others". It remains to be ascertained whether the interference can be

regarded as having been "necessary in a democratic society".

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 and to what extent an interference

is necessary, but this margin goes hand in hand with a European

supervision. Thus the measures taken at national level must be

justifiable in principle and proportionate (cf. European Court H.R.,

Observer and Guardian judgment of 26 November 1991, Series A no. 216

pp. 29-30, para. 59; Jacubowski judgment, loc. cit., p. 14, para. 26).

In the present case, the requirements of protecting the

reputation and rights of others, namely of the law firm of Mr. L. and

partners, in particular Mr. G., must be weighed against the applicant's

freedom to inform the Lawyers' Association and possibly third persons

about his accusations of improper conduct and client's betrayal against

the law firm concerned.

The Munich I Regional Court, as confirmed by the Munich Court of

Appeal considered that the applicant had inter alia accused the law

firm of having committed the criminal offence of client's betrayal and

thus made statements which were likely to impair their professional

reputation. The impugned decision took into account that the applicant

had not only raised these wrong accusations with the Lawyers'

Association, but also threatened to render them public. Having regard

to all the material, the Regional Court concluded that the statements

at issue were untrue and concluded that the applicant therefore had no

right to impart such information, in particular no legitimate interest

justifying the incriminated statements. In these circumstances, the

applicant's constitutional complaint also failed.

The Commission finds that the Regional Court, as confirmed by the

Court of Appeal, duly considered the applicant's interest in raising

accusations in respect of the professional performance of his mother's

previous counsel, and the protection to be afforded to a law firm

against false and disparaging statements likely to be repeated in the

public. However, the Court of Appeal attached particular importance

to the fact that he had not only made such statements to the public

authorities or the lawyers' association, but also intended to publish

them to the general public by sending copies of his unproven, and even

false, statements of a very serious nature to the media. In this

context, the Commission observes that, at the time of the injunction

in question, the applicant's mother, in the context of civil

proceedings brought against her, had already been ordered to pay the

fees claimed by the law firm.

In these circumstances, there were relevant and sufficient

reasons for the prohibitory injunction against the applicant. It

cannot, therefore, be said that the Regional Court, in its decision of

23 September 1994, overstepped the margin of appreciation left to the

national authorities.

Accordingly, the interference complained of is justified under

Article 10 para. 2 (Art. 10-2) 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, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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STOPP v. GERMANY

STOPP v. GERMANY

LEXI