FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39657/98 by Peter STEUR against the Netherlands

The European Court of Human Rights (First Section) , sitting on 5 September 2000 as a Chamber composed of

Mr L. Ferrari Bravo, President , Mrs W. Thomassen, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mr J. Casadevall, Mr R. Maruste, judges , [Note1] and Mr M. O’Boyle, 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 deliberated, decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1951 and living in Oegstgeest . He is a practising lawyer.

The facts of the case, as submitted by the applicant, 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.

Subsequently, both criminal and civil proceedings were instituted against Mr B. in relation to the social security benefits received by him. The applicant acted as Mr B.’s defence counsel in both sets of proceedings.

In his pleadings submitted to the courts in the civil proceedings taken by the social security authorities against Mr B., 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. 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 had accused him in couched terms of having committed perjury in the record concerned.

In its decision of 1 July 1996, following adversarial proceedings, the Disciplinary Council ( Raad van Discipline ) of The Hague rejected as unfounded the complaint that the applicant had, in couched 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 for a lawyer (“ de grenzen van het toelaatbare overschreden en heeft hij in strijd gehandeld met hetgeen een behoorlijk advocaat betaamt ”). Noting the nature and seriousness of the applicant’s conduct concerned, the Disciplinary Council decided that a decision declaring the complaint of Mr W. partially founded without imposing any sanction sufficed.

The applicant filed an appeal with the Disciplinary Appeals Tribunal ( Hof van Discipline ). He submitted, inter alia , that Mr B. had told him that he had only signed the statement at issue after unacceptable pressure had been exerted on him. In this connection, he relied on a statement taken by the investigating judge ( rechter-commissaris ) from Mr. B. on 5 December 1994, in which Mr B. had made a declaration to this effect.

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 on him when Mr W. took his statement. It further noted that the applicant’s contention had remained fully unsubstantiated at the material time.

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

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that to prohibit the submission of the allegation at issue constitutes an unacceptable limitation of the rights of the defence. In his opinion the requirement of fairness of proceedings can only be met when every defence argument can be raised.

2. The applicant further complains under Article 6 of the Convention that, contrary to his submissions in the disciplinary proceedings and despite Mr B.’s statement before the investigating judge, the Disciplinary Appeals Tribunal unjustly found that the allegation at issue did not originate from Mr B. The applicant submits that, given the relationship between a lawyer and a client, the Disciplinary Appeals Tribunal unjustly disregarded the right to a fair trial and the principle of presumption of innocence.

3. The applicant complains under Article 7 of the Convention that, on the basis of the rules of the Bar Association and the case-law based on these rules it was not foreseeable that the making of the allegation at issue was prohibited or reprehensible.

4. The applicant finally 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.

PROCEDURE

The application was introduced on 25 November 1997 and registered on 4 February 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1 . The applicant complains under Article 6 of the Convention that the decision of the Disciplinary Appeals Tribunal is based on an incorrect assessment of the facts, that it is in violation of the right to a fair trial and that it is contrary to the principle of presumption of innocence.

Article 6 of the Convention, insofar as relevant, reads as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair … hearing … by a … tribunal. …

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Insofar as the applicant complains under Article 6 of the Convention of the Disciplinary Appeals Tribunal’s findings of fact, the Court recalls that it is no court of appeal from domestic tribunals and that, under the terms of Article 19 of the Convention, it cannot examine alleged errors of fact or law committed by domestic tribunals except where it considers that such errors might have involved a possible violation of the rights and freedoms set forth in the Convention (cf. Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 45).

The Court notes that the applicant does not complain that his rights under Article 6 of the Convention have been disrespected in the disciplinary proceedings against him but of the possible consequences of the decision of the Disciplinary Appeals Tribunal for the general position of the defence in judicial proceedings.

The Court is of the opinion that, assuming that the rights of the defence would be unacceptably restricted as a result of the decision of the Disciplinary Appeals Tribunal, this would affect the parties to judicial proceedings rather than the applicant in his capacity as counsel. The Court is therefore of the opinion that, in this respect, the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention.

It follows that this part of the application must be rejected under Article 35 § 3 of the Convention as manifestly ill-founded.

2. The applicant complains under Article 7 of the Convention that, on the basis of the rules of the Bar Association and the case-law based on these rules it was not foreseeable that the making of the allegation at issue was prohibited or reprehensible.

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The Court observes that the Disciplinary Appeals Tribunal considered that the applicant had, as regards his contention that unacceptable pressure had been exerted on Mr B., disrespected the rules on the professional conduct of lawyers. However, the Court finds that it has not been established that this constitutes, as such, a criminal offence under Dutch law.

It follows that this complaint must also be rejected as manifestly ill-founded within the  meaning of Article 35 § 3 of the Convention.

3. The applicant finally 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.

Article 10 of the Convention, insofar as relevant, reads:

“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 Court considers that this part of the application must be brought to the notice of the respondent Government in accordance with Rule 54 § 3 (b) of the Court’s Rules of Procedure and the Government be invited to submit their written observations on the admissibility and merits of this complaint.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complain t [Note2] under Article 10 of the Convention; and

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Luigi Ferrari Bravo Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)

[Note2] Summarise the complaints without necessarily citing the invoked Convention Articles.