Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25063/94

by Horst TRIEFLINGER

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

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 8 August 1994 by

Horst TRIEFLINGER against Germany and registered on 1 September 1994

under file No. 25063/94;

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 facts, as they have been submitted by the applicant, may be

summarised as follows.

The applicant, born in 1940, is a German national and resident

in Frankfurt/Main. He is a business management consultant by

profession.

In 1985/86 the applicant was involved in several labour court

proceedings against his previous employer. The court proceedings

concerning his dismissal terminated with a settlement which provided

for the payment of a severance allowance of DM 55,000. In these

proceedings the applicant was represented by counsel Mr. T.

In December 1986 the applicant requested the Frankfurt/Main

Lawyers' Association (Rechtsanwaltskammer) to take disciplinary

measures against Mr. T., charging him with betrayal (Parteiverrat) in

the context of the above labour court proceedings. The applicant

considered that Mr. T. had wrongly advised him upon the conclusion of

the settlement with his employer. His request remained unsuccessful.

In 1987 the applicant filed an action against Mr. T. claiming

compensation for negligence in the context of the above labour court

proceedings. His action was dismissed by the Frankfurt/Main Regional

Court (Landgericht) on 7 January 1988, as confirmed by the

Frankfurt/Main Court of Appeal (Oberlandesgericht) on 14 July 1988.

On 16 December 1988 the applicant laid a criminal information

with the Frankfurt/Main Prosecutor's Office (Staatsanwaltschaft),

charging Mr. T. with client's betrayal (Parteiverrat) to his

disadvantage in the context of the above labour court proceedings. The

applicant sent a copy of these submissions to the editor of a

newspaper. The preliminary investigations against Mr. T. were

discontinued for lack of suspicion in February 1989. Following the

applicant's appeal, the Prosecutor's Office reopened the investigation

proceedings, which were finally discontinued in February 1990. The

applicant lodged an appeal with the Director of Public Prosecution

(Generalstaatsanwalt) and sent copies thereof to several editors of

newspapers. The appeal was dismissed on 17 April 1990. The applicant

also complained about the decision to discontinue the investigation

proceedings with the Hessen Minister of the Interior (Innenminister),

and sent copies of these submissions to the press.

As from March 1989 the applicant also renewed his requests with

the Lawyers' Association that disciplinary measures be taken against

Mr. T.

On 27 September 1990 the Frankfurt/Main Regional Court dismissed

Mr. T.'s request for an injunction prohibiting the applicant from

stating that Mr. T. had betrayed him in the context of court

proceedings with his former employer. The Regional Court considered

that there was no right to a prohibitory injunction regarding

complaints with a public authority or a lawyers' association about

alleged grievances. The incriminated statement of a suspicion could

not be objected to.

On 20 February 1992 the Frankfurt/Main Court of Appeal, upon

Mr. T.'s appeal, prohibited the applicant from telling third persons

that Mr. T. had betrayed him in the context of court proceedings with

his former employer.

The Court of Appeal, in its reasoning, 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

Court of Appeal found that the applicant had, in the past, accused

Mr. T. of having committed the criminal offence of client's betrayal

in that Mr. T. had allegedly deliberately served the interests of the

opponent party in the above labour court proceedings and thereby caused

damage to the applicant, and that he had continued to do so at the

hearing. The Court of Appeal considered that these statements impaired

Mr. T.'s reputation as a lawyer.

According to the Court of Appeal, the question to what extent the

applicant could raise such accusations in the context of judicial

proceedings was irrelevant on the ground that he had also informed the

public in sending copies of his various submissions to the media. The

Court of Appeal, having taken evidence, found that the applicant's

allegations were untrue and that he therefore had no right to impart

such information. The Court of Appeal continued that even assuming

that the applicant's allegations had not been refuted, the right to

freedom of expression did not cover, as a rule, a right to impart

insulting and disparaging allegations outside judicial proceedings.

Moreover, there was no public interest in the matter justifying the

incriminated statements which seriously impaired Mr. T.'s professional

reputation. In this context, the Court of Appeal noted that there was

no indication that the applicant's allegations had been taken up by the

newspapers concerned.

On 19 May 1994 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 Court of Appeal's decision of 20 February 1992 prohibiting him from

telling third persons that Mr. T., in his position as counsel, had

betrayed him in the context of the labour court proceedings against his

former employer.

THE LAW

The applicant complains about the Court of Appeal's decision of

20 February 1992 prohibiting him from telling third persons that

Mr. T., in his position as counsel, had betrayed him in the context of

the labour court proceedings against his former employer. He invokes

Article 10 (Art. 10) of the Convention.

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 (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 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 lawyer Mr. T., must be

weighed against the applicant's freedom to inform third persons about

his accusations of client's betrayal against Mr. T.

The Frankfurt/Main Court of Appeal considered that the applicant

had accused Mr. T. of having committed the criminal offence of client's

betrayal and thus made statements which impaired Mr. T.'s reputation

as a lawyer. Its judgment was based on the fact that the applicant had

not only raised these accusations in the context of judicial

proceedings, but also informed the public by sending copies of his

various submissions to the media. The Court of Appeal, having taken

evidence, found that the applicant's allegations were untrue and

concluded that he therefore had no right to impart such information.

In the alternative, assuming that the applicant's allegations had not

been refuted, the Court of Appeal observed that the right to freedom

of expression did not cover, as a rule, a right to impart insulting and

disparaging allegations outside judicial proceedings, and that there

was no public interest in the matter justifying the incriminated

statements which seriously impaired Mr. T.'s professional reputation.

In these circumstances, the applicant's constitutional complaint

remained unsuccessful.

The Commission finds that the Court of Appeal took into account

the applicant's interest in raising accusations in respect of the

professional performance of his previous counsel. However, the Court

of Appeal attached particular importance to the fact that he had not

only done so with public authorities or the lawyers' association, but

also aimed at informing the general public in sending copies of his

unproven, or even false, statements of a very serious nature to the

media.

In this context, the Commission observes that, at the time of the

Court of Appeal's judgment prohibiting the applicant from further

making these statements, his civil action against Mr. T. had been

dismissed, and Public Prosecutor's Office had finally discontinued the

preliminary investigations against Mr. T. for lack of suspicion.

In these circumstances, there were relevant and sufficient

reasons for the prohibitory injunction against the applicant. It

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

of 20 February 1992, overstepped the margin of appreciation left to the

national authorities.

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 remaining part of 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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TRIEFLINGER v. GERMANY

TRIEFLINGER v. GERMANY

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