Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20571/92

by G.F.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 18 October 1995, the following members being present:

MM. H. DANELIUS, President

S. TRECHSEL

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 17 July 1992 by

G.F. against Switzerland and registered on 2 September 1992 under file

No. 20571/92;

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 28

March 1995 and the observations in reply submitted by the

applicant on 16 May 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swiss national born in 1946. He is a lawyer

and resides in Zürich. Before the Commission he is represented by

Mr. L. A. Minelli, a lawyer practising in Forch.

The facts of the case, as submitted by the applicant, can be

summarised as follows.

The particular circumstances of the case

The applicant represented a client in divorce proceedings. On

12 April 1991 he delivered to the Court of Appeal (Obergericht) of the

Canton of Zurich a reply to the other party's appeal against the first

instance decision. This reply was accompanied by a cross-appeal.

In his submissions the applicant referred to the other side`s

appeal in terms including expressions such as the "impossible manner

of conducting the case" (unmögliche Art des Prozessierens), "such

legally abusive presentation of arguments" (derart

rechtsmissbräuchliche Argumentation), a "stupid way of presenting

arguments" (dumme Argumentation) and "absurd posturing" (absurde

Haltung). The applicant also alleged that the other side's lawyer

"deliberately uses wrong figures" (operiert vorsätzlich mit falschen

Zahlen), and that he supported his client in her efforts to "milk" the

applicant`s client.

On 29 April 1991 the opposite side`s lawyer withdrew his appeal.

The applicant`s reply, as well as the cross-appeal, were thus rendered

ineffective. When withdrawing his appeal the other side`s lawyer

complained to the court about the expressions used by the applicant.

He asked for this fact to be taken into consideration by the court when

deciding about the costs and compensation for the proceedings.

By a decision (Beschluss) of 17 May 1991 the Canton of Zurich

Court of Appeal imposed a disciplinary fine of 200 SFr on the applicant

under the Law on Disciplinary Penalties (Gesetz betreffend die

Ordnungsstrafen). The court held, inter alia, that the expressions

used by the applicant infringed the requirements of propriety vis-à-vis

his colleague and were therefore contrary to Article 131 para. 1 of the

Canton of Zurich Judiciary Act (Gerichtsverfassungsgesetz). The court

did not take the applicant`s behaviour into consideration when deciding

on costs and compensation.

The applicant lodged a public law appeal with the Federal Court

(Bundesgericht) against this decision. He alleged a violation of

Article 4 of the Federal Constitution (prohibition of arbitrariness)

in that a fair hearing by a tribunal was denied to him, and in that the

relevant law had been applied arbitrarily in his case.

The Federal Court rejected the applicant`s appeal on

25 September 1991. It found that the relevant provision in the Code

of Civil Procedure (Zivilprozessordnung) providing for the right to be

heard did not imply the necessity of a full hearing in case of

disciplinary penalties within court proceedings. The Federal Court did

not find the fine arbitrary.

In its judgment the Federal Court held, inter alia:

"Das Obergericht hat die verschiedenen Ausdrücke, mit denen das

Vorgehen der andern Prozesspartei zu disqualifizieren versucht

worden ist, insgesamt als Verstoss gegen den gebotenen Anstand

im Sinne des § 131 GVG gewertet. Das ist sowohl im ganzen als

auch einzeln betrachtet jedenfalls nicht völlig unhaltbar. ...

Was als einzelne Äusserung vielleicht noch hinzunehmen wäre, kann

in der Häufung durchaus den Eindruck der Ungebührlichkeit, ja der

beleidigenden Herabminderung des Gegenanwaltes, erwecken.

Auch die Überzeugung, die Wahrheit darzustellen und angeblich

falsche Behauptungen zu widerlegen, berechtigt nicht, eine Reihe

von Äusserungen zu verwenden, welche die Arbeit des

Rechtvertreters der Gegenpartei herabzumindern geeignet sind, ...

Dass das Obergericht dem Beschwerdeführer einen Maulkorb habe

umhängen wollen, was geradezu eine "willkürliche, die

Rechtssicherheit bedrohende Knebelung" darstelle, kann in keiner

Weise gesagt werden; wenn ein Anwalt mit einer Busse zur Ordnung

gerufen wird, soll er lediglich dazu angehalten werden, sein

Argument in Zukunft sachlicher vorzutragen."

"The Court of Appeal regarded the various expressions which had

been used to disqualify the other party, taken as a whole, as an

infringement of the required propriety within the meaning of

Article 131 of the Judiciary Act. This conclusion is certainly

not wholly untenable, whether the statements are taken

individually or together. ...

What could possibly be accepted as a single expression can give

rise, through repetition, to the impression of contempt and even

of offensive belittling of the other side's lawyer.

Even the conviction that one is presenting the truth and refuting

allegedly false assertions does not give the right to use a

series of expressions which are liable to belittle the work of

the other side's lawyer, ...

Anyhow, it cannot be said that the Court of Appeal intended to

muzzle the applicant and thus "gag him in a way which is

arbitrary and threatens legal certainty"; when a lawyer is called

to order by means of a fine, he is merely being encouraged to

present his arguments in a more factual way in the future."

Relevant domestic law

The Canton of Zurich Law on Disciplinary Penalties of

30 October 1866 ("the 1866 Law"), as amended, entitles all

administrative and judicial authorities to reprimand disciplinary

offences committed by members of these authorities, by members of their

subordinate organs, their agents and officials as well as by private

individuals who communicate orally or in writing with these

authorities. Disciplinary penalties may be imposed.

Article 2 para. 3 of the 1866 Law defines as disciplinary fault

"violation of the propriety required for official proceedings by good

conduct" (Verleztung des durch die gute Sitte für amtliche

Verhandlungen gebotenen Anstandes).

Pursuant to Article 4 para. 2 one of the disciplinary penalties

under the 1866 Law is a pecuniary fine in conformity with provisions

on police fines. The provision refers to Section 328 of the Canton of

Zurich Code of Criminal Procedure (Strafprozessordnung) under which the

cantonal authorities may impose fines of up to 1,000 SFr.

Article 4a of the 1866 Law provides that Section 48 paras. 2 and

3 and Section 49 of the Federal Criminal Code (Strafgesetzbuch) apply

to the determination, execution and conversion of fines.

Under Section 48 para. 2 of the Criminal Code the judge

determines the amount of the fine according to the conditions of the

convicted person so that the loss the latter has to suffer represents

a punishment corresponding to his or her culpability. In evaluating

his or her conditions a judge is to take into consideration in

particular income, capital, family situation, profession, age and state

of health.

According to Section 49 of the Criminal Code a judge shall

convert the fine into imprisonment if it is not paid or worked off by

the convicted person within a certain time limit. In case of

conversion one day of imprisonment corresponds to 30 SFr of fine. The

imprisonment cannot exceed three months.

Article 131 of the Canton of Zurich Judiciary Act provides, inter

alia, that written submissions to courts may not have improper

contents. When a submission does not meet the requirements of this

Article, the court fixes a time limit for redressing the shortcomings.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

that his right to a fair trial was violated because he was not given

an opportunity to present his arguments before the decision about

imposition of a fine upon him was taken.

He also alleges a violation of Article 6 para. 3 (a), (b) and (c)

of the Convention in that he was not informed promptly about the

accusation against him, did not have adequate time and facilities for

the preparation of his defence and could not defend himself in person

or through legal assistance.

Finally, the applicant alleges that his right to freedom of

expression under Article 10 of the Convention was violated, and that

there was no pressing social need for this interference.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 July 1992 and registered on

2 September 1992.

On 11 January 1995 the Commission decided to communicate the

application to the respondent Government pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

28 March 1995. The applicant replied on 16 May 1995.

THE LAW

1. The applicant alleges a violation of Article 6 (Art. 6) of the

Convention which provides, so far as relevant, as follows:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law.

...

3. Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language which he understands

and in detail, of the nature and cause of the accusation against

him;

b. to have adequate time and facilities for the preparation of

his defence;

c. to defend himself in person or through legal assistance of his

own choosing ..."

The Government maintain that Article 6 (Art. 6) of the Convention

is not applicable to the proceedings which led to the imposition of a

disciplinary fine on the applicant. The applicant disagrees.

In order to determine whether Article 6 (Art. 6) of the

Convention is applicable under its "criminal" head to the proceedings

at issue, the Commission will have regard to the three criteria laid

down in the Convention organs' case-law (cf. Eur. Court H.R., Ravnsborg

judgment of 23 March 1994, Series A no. 283-B, p. 28, para. 30, with

further references).

As to the legal classification of the offence at issue under

Swiss law, the Government contend that the 1866 Law expressly refers

to offences it governs as disciplinary. In the Government's view, the

disciplinary character of the offence is also confirmed by an

historical interpretation of the 1866 Law and by the fact that fines

under the 1866 Law are not included among the punishments referred to

in the Canton of Zurich Act on Cantonal Criminal Law and the Execution

of Penalties and Measures (Gesetz über das kantonale Strafrecht und den

Vollzug von Strafen und Massnahmen).

The applicant argues that in the table of contents of the

systematic edition of the Canton of Zurich legislation, known as the

"Zurich Loose-Leaf Collection" (Zürcher Loseblattsammlung) the 1866 Law

is listed, at Chapter 31, under the heading of "Criminal Law". He also

submits that in the report of 5 January 1994 on the draft amendment of

the 1866 Law the Canton of Zurich Government pleaded, with reference

to the case-law of the European Court of Human Rights, for the

possibility of having disciplinary sanctions under the 1866 Law

judicially reviewed.

The Commission notes that the 1866 Law refers the fine to the

disciplinary field.

On the other hand, some of the factors (those invoked by the

applicant, the fact that the 1866 Law refers on several occasions to

the Criminal Code and the Code of Criminal Procedure) might be

considered as indicative of a criminal classification of fines under

Swiss law.

In these circumstances the formal classification of the offence

under Swiss law is open to different interpretations. It cannot be

clearly established whether the relevant provisions concerning this

kind of offences belong or do not belong to criminal law under the

domestic system (cf. the above mentioned Ravnsborg judgment, pp. 28-30,

paras. 31-33).

The Commission has therefore to turn to the second criterion,

which is of more weight, namely the very nature of the offence.

In the Government's view under this aspect the present case, like

the Ravnsborg case (see the above mentioned Ravnsborg judgment, p. 30,

para. 34), falls outside the ambit of Article 6 of the Convention since

rules enabling a court to sanction disorderly conduct in proceedings

before it and the sanctions imposed under such rules derive from the

necessary power of a court to ensure the proper and orderly functioning

of its own proceedings.

The applicant contends that his case is different from the

Ravnsborg case in that (i) he did not insult members of the Canton of

Zurich Court of Appeal but merely brought to their knowledge statements

made by the other side that were closely related to the subject matter

of the proceedings, sharply criticising at the same time the other

side's conduct in the proceedings, and (ii) the 1866 Law refers to

every citizen, irrespective of the authority he or she has to deal

with. In the applicant's view its provisions therefore potentially

attain the whole population which brings it under the heading of

criminal law.

The Commission notes that the 1866 Law applies, inter alia, to

private individuals who communicate orally or in writing with

administrative and judicial authorities. In this respect the present

case is similar to the case of Ravnsborg in that the relevant law

applied only to disciplinary fault (in the applicant's case violation

of the propriety required for official proceedings by good conduct)

committed by a person communicating orally or in writing with the

authority concerned, but not to such statements made in a different

context or by a person falling outside the circle of persons covered

by that provision.

Furthermore, the decision to sanction the applicant was taken of

its own accord by the same judicial authority as that in charge of the

proceedings in the course of which the misconduct reproached to the

applicant occurred.

The Commission therefore considers that the disciplinary offence,

for which the applicant was fined, was not of an inherently "criminal"

nature such as to bring the case within the ambit of Article 6

(Art. 6) of the Convention.

As to the nature and degree of severity of the penalty, the

Government submit that the possibility of converting the fine at issue

into a prison sentence does not in itself justify its classification

as criminal. Nor does, in their view, the amount of the fine which was

actually imposed on the applicant.

The applicant argues that in this respect his case is similar to

that of Öztürk (cf. Eur. Court H.R., Öztürk judgment of 21 February

1984, Series A no. 73, p. 20, para. 53). He contends that the aim of

the fine under the 1866 Law is both to punish and deter people from

engaging in proscribed behaviour. It serves both public interests

(those of the judiciary) and private interests (those of the parties

to the proceedings). The applicant further points out that the

possibility of converting the fine into a prison sentence proves its

criminal character.

The applicant also maintains, with reference to the case of

McMichael (cf. Eur. Court H.R., McMichael judgment of 24 February 1995,

Series A no. 307-B), that in determining the applicability of Article 6

(Art. 6) of the Convention not only the severity of the sanction must

be considered but also the severity of the interference with the rights

protected by the Convention, namely the freedom of expression (of a

lawyer before a court) which was at stake in the present case.

The Commission recalls that pursuant to Section 328 of the Canton

of Zurich Code of Criminal Procedure cantonal authorities are entitled

to impose maximum fines of 1,000 SFr, and the applicant was actually

fined 200 SFr. The 1866 Law does not provide for imprisonment as an

alternative sanction. A judge can convert the fine into a prison

sentence, but only if the perpetrator of the offence failed to pay it

or work it off within a certain time limit.

With regard to the above mentioned Ravnsborg judgment (pp. 30-31,

para. 35) the Commission considers that the fact that the fine could,

in limited circumstances and in separate proceedings, be converted into

a term of imprisonment cannot warrant its classification as criminal.

It finds that neither the amount of the fine imposed on the applicant

nor the alleged severity of the interference with his right to freedom

of expression can change this position.

In these circumstances the Commission considers that Article 6

(Art. 6) of the Convention is not applicable to the proceedings by

which the applicant was fined under the 1866 Law.

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant further complains under Article 10 (Art. 10) of the

Convention that the fine imposed on him by the Canton of Zurich Court

of Appeal infringed his right to freedom of expression.

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, ... or for maintaining the

authority ... of the judiciary."

The Government maintain, with reference to the Commission's case-

law (see, e.g., No. 10148/82, Dec. 14.3.85, D.R. 42 p. 121), that the

applicant has failed to comply with the requirement as to the

exhaustion of domestic remedies since in his public law appeal he

mentioned the freedom of expression only once in passing.

Subsidiarily, the Government argue that the interference with the

applicant's right to freedom of expression complied with Article 10

para. 2 (Art. 10-2) of the Convention since it was necessary for the

protection of the reputation of the other party's lawyer and for

maintaining the authority of the judiciary.

The applicant refers to particular expressions contained in his

public law appeal and alleges that he has thereby submitted the claim

he is now bringing before the Commission. He considers that there was

no pressing social need for the restriction on his freedom of

expression.

The Commission does not consider it necessary to examine whether

the applicant submitted his complaint of a violation of his right to

freedom of expression to the Federal Court in a way which is compatible

with the requirements of Article 26 (Art. 26) of the Convention since

this complaint is in any event inadmissible for the following reasons.

The Government agree with the applicant that the disciplinary

fine at issue constituted an interference with the exercise of the

applicant's freedom of expression. The Commission recalls that such

an interference is in breach of Article 10 (Art. 10) of the Convention,

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 Commission notes that the legal basis of the interference

under consideration was the 1866 Law in combination with Article 131

of the Canton of Zurich Judiciary Act. The Commission finds that these

provisions were accessible, and the disciplinary measure complained of

was also foreseeable under the relevant legislation (cf. mutatis

mutandis, Eur. Court H.R., Barthold judgment of 25 March 1985, Series

A no. 90, pp. 21-23, paras. 45-48). The sanction issued against the

applicant can, therefore, be considered as "prescribed by law" for the

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

Moreover, the decision complained of aimed to protect "the

reputation or rights of others", namely the other party's lawyer who

had been criticised by the applicant, and, through the application of

rules of decorum to representatives of the parties, to maintain "the

authority of the judiciary". These are legitimate aims under

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

It remains to be determined whether the interference complained

of was "necessary in a democratic society" and proportionate to the

legitimate aims 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. The Convention organs' task

is to look at the interference complained of in the light of the case

as a whole and determine whether it was "proportionate to the

legitimate aim pursued" and whether the reasons adduced by the national

authorities to justify it are "relevant and sufficient"(cf. European

Court H.R., Observer and Guardian judgment of 26 November 1991,

Series A no. 216, pp. 29-30, para. 59).

In its judgment of 25 September 1991 the Federal Court noted that

the expressions used by the applicant were incompatible with the

required propriety since they were liable to give rise to an impression

of contempt and even of offensive belittling of the other side's

lawyer. In the Federal Court's view this could not be justified even

by the fact that the applicant was convinced that he was thereby

presenting the truth and was refuting allegedly false assertions.

The Federal Court thus balanced the right to raise criticism

against the necessity to protect the reputation and rights of others,

here the other party's lawyer, from unfair and intemperate criticism

by a colleague in the context of civil proceedings. It found that this

interference also pursued the aim of encouraging the applicant to

present his arguments in a more factual way, i.e. the aim of ensuring

the respect for propriety required for official proceedings by good

conduct which, in the Commission's view, is indispensable for

maintaining the authority of the judiciary.

The Commission considers that the sanction imposed on the

applicant was not disproportionate to the legitimate aims pursued, and

that the reasons adduced by the Federal Court were relevant and

sufficient.

In these circumstances, the interference complained of can be

regarded as "necessary in a democratic society" within the meaning of

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

It follows that this part of the application is manifestly ill-

founded within 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.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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G.F. v. SWITZERLAND

G.F. v. SWITZERLAND

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