SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39657/98 by P.S. against the Netherlands

The European Court of Human Rights ( Second Section) , sitting on 18 June 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mrs A. Mularoni , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 25 November 1997 and registered on 4 February 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the former First Section’s partial decision of 5 September 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

A. Particular circumstances of the case

The applicant is a Netherlands national, born in 1951 and living in Oegstgeest . He is a practising lawyer. He is not represented before the Court.

The respondent Government are represented by Mr Roeland Böcker and Ms Jolien Schukking of the Netherlands Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 26 November 1992, the social security investigating officer ( sociaal rechercheur ), Mr W., took and recorded a statement from Mr B., a person of Surinamese origin who was suspected of having unjustly received social security benefits and, in this context, of having committed forgery. Mr B. was then alone with Mr W. and did not have the assistance of a lawyer or interpreter.

Subsequently, Mr B. was prosecuted for social security fraud. In addition, civil proceedings were instituted against him by the social security authorities for the recovery of the excess benefits paid to him. The applicant acted as Mr B.’s counsel in both sets of proceedings.

In his pleadings submitted to the courts in the civil proceedings, the applicant stated, inter alia , that:

“The statement recorded in writing by Mr W. cannot have been obtained otherwise than by the application of pressure in an unacceptable manner in order to procure incriminating statements, the significance of which was not or not sufficiently understood by Mr B. given the absence of an interpreter.”

After having learned of this statement in May 1995, Mr W. filed a disciplinary complaint within the meaning of Article 46c of the Act on the Legal Profession ( Advocatenwet ) against the applicant to the Dean ( deken ) of the local Bar Association ( Orde van Advocaten ). He complained that the applicant’s unfounded insinuations had discredited his professional honour and good reputation, that the applicant had transgressed the limits of decency, and that the applicant had accused him in veiled terms of having committed perjury in drawing up the record concerned.

Following an exchange of correspondence, the Dean forwarded Mr W.’s complaint to the the Disciplinary Council ( Raad van Discipline ) of The Hague.

In its decision of 1 July 1996, following adversarial proceedings, the Disciplinary Council rejected as unfounded the complaint that the applicant had, in veiled terms, accused Mr W. of perjury. It did, however, consider that the applicant, by contending that Mr W. had exerted unacceptable pressure on Mr B., had given a qualification that was not supported by any facts. It concluded that the applicant had thus transgressed the limits of acceptable behaviour and failed to observe the standards expected from a lawyer (“ de grenzen van het toelaatbare overschreden en heeft hij in strijd gehandeld met hetgeen een behoorlijk advocaat betaamt ”). Noting the nature and the limited degree of seriousness of the applicant’s conduct in question, the Disciplinary Council decided that it sufficed to declare the complaint of Mr W. partially well-founded without imposing any sanction.

The applicant lodged an appeal with the Disciplinary Appeals Tribunal ( Hof van Discipline ). He submitted that Mr B. had not had the assistance of a lawyer before he signed his written statement despite having asked for a lawyer to be present, that no interpreter had been present at the interrogation, that Mr B. was a drug addict and had told him that pressure had been brought to bear. The applicant also pointed to a statement taken by the investigating judge ( rechter-commissaris ) from Mr B. on 5 December 1994, which was in the following terms:

“In reply to the question why I stated to the police that I had lived together with my ex-wife during the relevant period (...) I say that that I was pressured during that interrogation.

This pressure consisted of kicking against the table and kicking motions in my direction. I was also verbally abused.

When it came to signing the statement I asked for the chief, but he was said to have already gone home. I then asked for a lawyer because I wanted an interpreter to come and read my statement to me. The police said, however, that no lawyer could come. So in the end I just signed that statement.”

The applicant argued that in defending his client he should be free to conclude, as he had, that his client’s confession could only have resulted from unacceptable pressure brought to bear by the investigating officer. It would then have been for the court to which this conclusion was presented to decide whether or not it was proven that such unacceptable pressure had in fact been exercised. It was however not for a disciplinary tribunal to find that a statement made at a trial in defence of his client was unacceptable because it had not been sufficiently verified.

In its decision of 26 May 1997, following adversarial proceedings, the Disciplinary Appeals Tribunal rejected the applicant’s appeal and upheld the decision of 1 July 1996.

It noted that, in the civil proceedings involving Mr B., the allegation at issue had been made in the applicant’s submissions during the first instance proceedings as well as in the proceedings on appeal before the Hague Regional Court ( arrondissementsrechtbank ); in the latter proceedings in the course of a hearing held on 27 June 1994. It did not find it established that, at the material time, the applicant had in fact been informed by Mr B. that he found that unacceptable pressure had been exerted upon him when Mr W. took his statement. It further noted that the applicant’s contention had remained wholly unsubstantiated at the material time.

The Disciplinary Appeals Tribunal agreed with the Disciplinary Council that a lawyer was not permitted to express reproaches of the present kind without any factual support, which implied that a lawyer, prior to raising such allegations, must seek information from his client as to the circumstances of the unacceptable pressure allegedly exerted.

B. Relevant domestic law

Article 46 of the Act on the Legal Profession provides as follows:

“Advocates shall be subject to disciplinary proceedings regarding any act or omission which is in breach of the due care they ought to exercise as advocates vis-à-vis those whose interests they look after, or ought to look after, any breach of the Regulations of the National Bar, and any act or omission not befitting a respectable advocate. This disciplinary justice is dispensed in the first instance by the Disciplinary Councils, and on appeal by the Disciplinary Appeals Tribunal, which is also the highest instance.”

A complaint against an advocate is submitted to the Dean of the local Bar Association (Article 46c § 1), who shall investigate it (Article 46c § 2). He may forward it to the Supervisory Board ( Raad van Toezicht ) for further action (Article 46 § 3).

If a friendly settlement cannot be reached, the matter is referred to the Disciplinary Council by the Dean of the Bar Association (or the Supervisory Board as the case may be), either at the request of the complainant or ex officio (Article 46c § 3 and Article 46d).

The sanctions available to the Disciplinary Councils and the Disciplinary Appeals Tribunal are a mere admonition, a reprimand, a suspension from practising for a period not exceeding one year, and disbarment (Article 48).

Guidance on the nature of an “act or omission not befitting a respectable advocate” is found in the Rules of Conduct for Advocates ( Gedragsregels voor advocaten ), the most recent version of which dates from 1992. Rule 1 reads as follows:

“Advocates should behave in such a way that confidence in the profession or in their own exercise of the profession is not harmed.”

COMPLAINT

The applicant complains that the decision of the Disciplinary Appeals Tribunal implies that, during trial proceedings, a lawyer is not allowed to conclude from facts known to him that unacceptable pressure has been exerted on his client. He considers that this is contrary to freedom of expression guaranteed by Article 10 of the Convention.

THE LAW

Article 10 of the Convention provides in its relevant part as follows:

“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 and regardless of frontiers. ...

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 applicant alleged a violation of his right under Article 10 to present such factual and legal argument as may be required in his client’s interests.

The Government considered that the applicant had not been subject to any “formalities, conditions, restrictions or penalties” of a nature to prevent him from adequately representing the interests of his client, Mr B.  He had been able to make what statements he saw fit, including the statement that his client had been put under unacceptable pressure by the social security investigating officer. The Disciplinary Council and the Disciplinary Appeals Tribunal had merely found the applicant in violation of his duty to ensure that his statements had a proper basis in fact.

In the alternative, the Government argued that the decisions complained of by the applicant had been "prescribed by law" and had pursued the “legitimate aim” of protecting “the rights of others”. Given, on the one hand, the need to ensure that the Bar maintained proper professional standards and, on the other, that no disciplinary sanction had been imposed on the applicant, it could not be said that the domestic authorities had overstepped their margin of appreciation in the matter.

The applicant replied that his statement that Mr B. had been placed under unacceptable pressure was based on objective circumstances and was supported by a statement made by Mr B. to the investigating judge.

Having regard to the parties’ submissions and to its case-law, the Court considers that the applicant’s complaint raises complex questions of fact and law which require an examination on the merits. It cannot, therefore, be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the remainder of the application admissible without prejudging the merits.

S. Dollé J.-P. Costa Registrar President