Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12306/86

by M.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 9 March 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 June 1986 by

M. against the Federal Republic of Germany and registered on 31 July

1986 under file No. 12306/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen born in 1930 and practising

as a lawyer in Düsseldorf.

It follows from his statements and the documents submitted by

him that on 17 December 1981 and 10 May 1983 the applicant was

reprimanded and fined each time 10,000 DM by the Düsseldorf

Disciplinary Court for lawyers (Ehrengericht für den Bezirk der

Rechtsanwaltskammer Düsseldorf) for having violated

professional rules. The applicant's appeals against both decisions

were joined by the lawyer's Disciplinary Court of North Rhine

Westphalia and to a large extent rejected on 9 December 1983. This

Court likewise considered that the applicant had violated his

professional duties (Sections 43 *, 113, 114 of the Lawyers' Act

[BRAO]) and fined the applicant 17,000 DM. According to the findings

of the Disciplinary Courts, the applicant had, in certain of his

submissions made to German Civil Courts in his capacity as

representative of private parties, made statements which exceeded a

lawyer's legitimate interest in defending his client's case: Inter

alia, he had, with regard to a final decision of the Düsseldorf

Court of Appeal (Oberlandesgericht), stated that he had expected "that

the appellate court would make an effort not to copy as quickly as

possible as much nonsense as possible ..... in that way the parties

were harassed by the courts as if they were stupid children."

In other civil proceedings the applicant, referring to a

decision which he contested, had requested the Court not to decide "in

accordance with the arbitrariness practised in Düsseldorf but in

accordance with the law".

Furthermore, he stated that "the Regional Court cared a damn

about the law; a case of perversion of justice within the meaning of

Section 336 of the German Criminal Code, at least if it were

repeated".

In the course of the disciplinary proceedings instituted on

account of the aforementioned remarks the applicant submitted, inter

alia, that it was probably the "silly fools' mentality" of the judicial

authorities which considered it necessary to employ a "big stick policy"

vis-à-vis a lawyer .... and he concluded:

"What is done against such arbitrariness?"

These and similar statements were considered by the

Disciplinary Courts to be of insulting character. The Discipliary

Court of Appeal pointed out in its decision of 9 December 1983 that a

lawyer had, of course, the right to defend his client's interests in a

tough and aggressive way. He was free to explain his point of

view in a clear and unequivocal manner but he had to refrain from

personal attacks against the persons involved in the proceedings if

____________

* This provision states: A lawyer has to exercise his profession

conscientiously. He has to act, both in private and in the exercise

of his profession, with the dignity corresponding to the respect and

confidence required by his profession.

such attacks were not related to the subject matter of the case. The

remarks made by the applicant did, in the opinion of the Disciplinary

Court, exceed by far the limits within which it had to be tolerated

that a lawyer represents the interests of his clients.

The applicant's complaint to the Federal Court (Bundes-

gerichtshof) of the refusal by the appellate court to grant leave to

appeal was rejected on 9 July 1984.

The applicant then lodged a constitutional appeal which was

rejected on 24 January 1986 by a group of 3 judges of the Federal

Constitutional Court (Bundesverfassungsgericht) as offering no

prospects of success. It is stated in the decision that Section 43

BRAO was a law limiting freedom of opinion in accordance with

Article 5 (1) of the Basic Law (Grundgesetz). This provision obliged

a lawyer to behave in a correct manner while performing his tasks as

an organ within the administration of justice. It did, however, not

prevent a lawyer from criticising in a correct and objective manner

decisions or measures of the judiciary or the administration. As a

great part of the applicant's statements which were the object of the

disciplinary proceedings were of insulting character within the

meaning of the relevant provisions of the Penal Code, the decision

complained of did not violate constitutional rights.

COMPLAINTS

The applicant maintains that his statements which were the

object of the disciplinary proceedings were true but, even if their

truth could not be established, they did, in his opinion, not

violate the criminal law because they were justified for the sake of

the representation of his client's interests. He argues that the

professional rules which were, according to the Disciplinary Court,

violated by him are vague and do not expressly provide that a lawyer's

arguments had to be "objective" (sachlich). This requirement was

developed by the jurisprudence and directives elaborated by the Bar

associations. In his opinion it violates the right to freedom of

opinion and expression if a lawyer is prevented from criticising

decisions or measures of the administrative or judicial authorities.

Such criticism can only improve the prestige of the legal profession.

He alleges a violation of Article 10 of the Convention.

THE LAW

The applicant has complained that his disciplinary punishment

for having, in his capacity as a lawyer, made statements which were

considered to be of an insulting character violated his right to

freedom of expression as guaranteed by Article 10 para. 1 (Art. 10-1)

of the Convention.

However, the exercise of the right to freedom of expression

may be subject to restrictions or penalties as are prescribed by law

and are necessary in a democratic society, inter alia, for the

protection of the reputation or rights of others and for maintaining

the authority and impartiality of the judiciary (Article 10 para. 2 of

the Convention) (Art. 10-2). In the present case, the applicant's

disciplinary sanction was based on provisions of the Lawyers' Act

(BRAO) and the applicant has not shown that these provisions were

interpreted in his case in a manner inconsistent with their

interpretation by the German courts. The provisions in question do

not lack sufficient precision. The European Court of Human Rights has

admitted that laws may be couched in terms which, to a greater or

lesser extent, are vague and whose interpretation and application are

questions of practice (Sunday Times case, judgment of 26 April 1979,

Series A, vol. 30, p. 31, para. 49). In the present case it was

foreseeable for the applicant that insulting or defamatory statements

would be considered as violations of the relevant rules of the code of

conduct.

As to the question of necessity of the disciplinary sanction,

the case-law of the organs set up by the Convention shows that the

criterion of "necessity" cannot be applied in absolute terms but calls

for the assessment of various factors. These include the nature of

the right in question, the degree of interference, the nature of the

public interest and the extent to which it needed to be protected in

the particular circumstances.

In this context the Commission notes that the applicant is a

representative of a profession that exercises important functions in

respect of the administration of justice. The members of this

profession can therefore be expected to show restraint in exercising

their freedom of expression in all cases where the authority and

impartiality of the judiciary are likely to be called in question

(cf. mutatis mutandis No. 10279/83, Dec. 7.5.84, DR 38 pp. 124, 136).

The Commission furthermore notes that the German courts

underlined that a lawyer is free to defend his clients' interests in a

tough and aggressive, but not insulting or defamatory manner. The

disciplinary sanction in question was imposed on account of statements

which the applicant had made in his submissions to German judicial

authorities. These statements were considered to be of an insulting

character within the meaning of the criminal law. The Commission

cannot find that this evaluation made by the German disciplinary

courts discloses any arbitrariness. Remarks employed in relation to

the judicial authorities like "he had expected that the appellate

court would make an effort not to copy as quickly as possible as much

nonsense as possible ... in that way the parties were harassed by the

courts as if they were stupid children"; the court should not decide

"in accordance with the arbitrariness practised in Düsseldorf but in

accordance with the law"; "the 'silly fools' mentality of the

judicial authorities which considered it necessary to employ a 'big

stick policy' vis-à-vis a lawyer" do, in the context used by the

applicant, constitute the expression of value judgments that may be

considered of a degrading character. His disciplinary punishment was

therefore justified as being necessary in a democratic society both

for the protection of the rights of others and maintaining the

authority and impartiality of the judiciary, within the meaning of

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

An examination by the Commission of this complaint as it has

been submitted, does not therefore disclose any appearance of a

violation of the rights and freedoms set out in the Convention and in

particular in the above Article.

It follows that the application is manifestly ill-founded

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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M. v. the FEDERAL REPUBLIC OF GERMANY

M. v. the FEDERAL REPUBLIC OF GERMANY

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