Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19520/92

by A.W.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 1992, the following members being present:

MM. E. BUSUTTIL, Acting President of the First Chamber

F. ERMACORA

A. S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C. L. ROZAKIS

Mrs. J. LIDDY

MM. M. P. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 27 January 1992

by A.W. against Austria and registered on 17 February 1992 under file

No. 19520/92;

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 is an Austrian lawyer born in 1949 and living in

Linz-Urfahr.

On 19 June 1989 a disciplinary sanction was imposed on the

applicant in the form of a fine of 7,000 AS by the Disciplinary Council

of the Upper Austrian Bar Association (Disziplinarrat der

Oberösterreichischen Rechtsanwaltskammer) for having impaired the

honour and reputation of the legal profession by

- having stated, in a letter of 9 September 1988 addressed to

the Chemie Holding AG, inter alia: "In particular my

client is in no way disposed to pander to a flop company

managed by socialists" ("Insbesondere ist mein Mandant in

keiner Weise bereit, sozialistisch geführten

Pleitebetrieben Vorschub zu leisten");

- having without reason left a hearing on 28 August 1987 in

the matter 9 Cg 81/88 before the Linz Regional Court and

having at the same time caused his client, one of the two

defendants, to leave the courtroom as well and having

thereby deprived his client of the possibility of

participating in the further proceedings.

The applicant's appeal was rejected by the Supreme Appeal and

Disciplinary Commission for Lawyers in Vienna on 5 November 1990.

The applicant then lodged a constitutional complaint which was

rejected by the Constitutional Court (Verfassungsgerichtshof) on

30 September 1991.

The Constitutional Court denied a violation of the right to

freedom of expression as it was necessary in a democratic society to

prevent lawyers from making insulting or inappropriate remarks

violating the rights of others.

The Constitutional Court underlined that it could not examine

whether or not the law had been applied correctly. It could only

examine whether it had been applied in an arbitrary manner amounting

to lawlessness (Gesetzlosigkeit). This was denied.

Insofar as the applicant had submitted in respect of the second

disciplinary offence that in the civil proceedings in question his

client's right to a fair trial had been violated and it had therefore

been justified to leave the courtroom, the Constitutional Court stated

that violations of procedural rights in the civil proceedings could and

should have been complained of by way of remedies which were at the

parties' disposal in these proceedings.

COMPLAINTS

The applicant submits in respect of the first disciplinary

offence that he was sanctioned because he had dared to denounce the

mismanagement of a political party. He considers that the incriminated

statement was justified for the defence of the interests of his client

who had been dismissed by the company in question for unjustified

reasons as was confirmed in the Labour Court proceedings.

As to the second disciplinary offence the applicant denies that

he deprived his client of further participation in the civil

proceedings or caused him any damage by having induced him to leave the

courtroom during an oral hearing of his case. He considers his action

to have been justified because the court had replaced an expert and had

without his or his client's consent appointed an expert who was his

personal enemy. In these circumstances it had been in his client's

interest to leave the oral hearing. He points out that no complaints

had been raised by his client. Rather the disciplinary proceedings

relating to the incident in the civil proceedings had been instituted

at the instance of the civil court.

The applicant invokes the right to freedom of expression which

he considers violated with regard to the charges laid against him in

the disciplinary proceedings.

THE LAW

The applicant, a lawyer, complains of a disciplinary sanction in

the form of a fine which in his opinion constitutes an interference

with his right to freedom of expression as guaranteed by Article 10

(Art. 10) of the Convention.

However, interferences with this right are compatible with the

Convention when they fulfil the requirements of paragraph 2 of Article

10 (Art. 10-2) which provides:

"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 considers that there has been an interference with

the applicant's right under Article 10 (Art. 10).

As to the requirements under paragraph 2 of the provision, the

applicant does not dispute that the interference complained of is based

on domestic law.

It is also clear that the interference served the purpose of

protecting the rights of others, namely in one case the opponent in

a labour law dispute and in the second case the applicant's own client

as well as the public in general which has an interest in the proper

functioning of the system of justice. In addition the disciplinary law

of lawyers serves the purpose of protecting the legal profession by

maintaining high standards of professional conduct.

The applicant mainly seems to dispute the necessity and

proportionality of the measure in question. However according to the

case-law of the European Court of Human Rights the Contracting States

have a certain margin of appreciation in assessing the existence and

extent of the necessity of an interference (see Markt Intern Verlag

GmbH Klaus Beermann judgment of 20 November 1989, Series A no. 165).

Such a margin is essential in matters of professional conduct and

supervision by the Convention organs in this respect is therefore

limited to the question whether the measures taken at national level

are justifiable in principle and proportionate (see, mutatis mutandis,

the afore-mentioned judgment, p. 20, para. 33).

In order to establish whether the interference complained of was

proportionate it is necessary to weigh the requirements of the

protection of the rights of others against the applicant's right to

exercise his profession freely and in the best interests of his

clients. It is clear from the wording of the applicant's letter of 9

September 1988 that it was meant to have a dishonouring effect.

Similarly his action in the civil proceedings can be considered as a

demonstration of disrespect with regard to all other persons present

at the oral hearing. It is true that a lawyer is in principle entitled

to use harsh language and action in order to safeguard the interests

of his client, but it cannot be found in the particular circumstances

of the present case that the applicant had no other choice in best

defending his client's case. Consequently the measure complained of

does not amount to a disproportionate interference.

The application therefore has to be rejected as being manifestly

ill-founded, in accordance with 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 First Chamber Acting President of the First Chamber

(M. de SALVIA) (E. BUSUTTIL)

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