JOINT DISSENTING OPINION OF JUDGE S ROZAKIS, VAJIĆ AND SPIELMANN

1. We are unable to follow the decision adopted by the majority that there has been no violation of Article 10.

2. The Court relies on what is a decisive factor in the present case, namely that the applicant ’ s allegations were not supported by any facts and that the statement did not give any details which would have explained why the applicant thought that the Vienna Food Inspection Agency had acted improperly when bringing charges against his client. But this is in our view not the problem. In his written observations, the applicant, a practising lawyer, commented as follows on the charges brought by the Vienna Food Inspection Agency:

“ Since the samples taken are not labelled as frozen food (contrary to the attempt to play tricks on my client ( Schummelversuch ) in the expert opinion underlying the criminal charge), they are not covered by Section 1 § 1 (1) of the FFLD .”

3. This was an acceptable statement for a practising lawyer, commenting on the expert opinion underlying the criminal charge. The lawyer ’ s statement was made in written observations submitted to the Eisenstadt Municipal Office.

4. As can be seen from its settled case-law, the Court has always been extremely reluctant to accept interference with the freedom of expression of lawyers, although it does accept that, owing to their special status and central position in the administration of justice as intermediaries between the public and the courts, restrictions on the conduct of members of the Bar may be justified. It has also held that Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. The combination of these principles means that while lawyers are entitled to comment in public on the administration of justice, their criticism must not overstep certain bounds. In that connection, account must be taken of the need to strike the right balance between the various interests involved, which include the public ’ s right to receive information about questions arising from judicial decisions, the requirements of the proper administration of justice and the dignity of the legal profession (see Schöpfer v. Switzerland , judgment of 20 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1053-54, § 33, and Nikula v. Finland , no. 31611/96, §§ 45-46, ECHR 2002 ‑ II ).

5. Even though the Court confirmed in the Nikula case that restrictions on lawyers ’ conduct are more stringent in cases where the judiciary itself is targeted ( Nikula , cited above, § 50), in many such cases the Strasbourg organs have nevertheless found violations of Article 10 (see W.R. v. Austria , no. 26602/95, Commission decision of 30 June 1997, in which

counsel had described the opinion of a judge as “ridiculous”, and Katrami v. Greece , no. 19331/05, 6 December 2007, in which a journalist said in an article that an investigating judge had “broken his oath” and had called him “ karagiozis ” (§ § 41-42)).

In Amihalachioaie ( Amihalachioaie v. Moldova , no. 60115/00, ECHR 2004 ‑ III ), a case concerning the conviction of a lawyer for criticising a judicial decision, the Court noted that the applicant ’ s comments were made on an issue of general interest in the context of a fierce debate among lawyers and that, even though the remarks could be regarded as showing a certain lack of regard for the Constitutional Court following its decision, they could not be described as grave or as insulting to the judges of the Constitutional Court (§§ 35-36, quoting mutatis mutandis , SkaÅ‚ka v. Poland , n o. 43425/98, § 34, 27 May 2003; Perna v. Italy [GC], n o. 48898/99, § 47, ECH R 2003-V; and Nikula , cited above, §§ 48 and 52 ). The Court came to the conclusion that that there was no “pressing social need” to restrict the applicant ’ s freedom of expression and that the national authorities had not furnished “relevant and sufficient” reasons to justify such a restriction. Since the applicant had not gone beyond the bounds of acceptable criticism under Article 10 of the Convention, the interference in issue could not be regarded as having been “necessary in a democratic society” (§ 39).

6. The importance of the role of the advocate was stressed again by the Court in the Grand Chamber case of Kyprianou ( Kyprianou v. Cyprus [GC], no. 73797/01, ECHR 2005 ‑ ...), where the Court held:

“173. The special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. Such a position explains the usual restrictions on the conduct of members of the Bar. Regard being had to the key role of lawyers in this field, it is legitimate to expect them to contribute to the proper administration of justice, and thus to maintain public confidence therein (see Amihalachioaie v. Moldova , no. 60115/00, § 27, ECHR 2004 ‑ III; Nikula v. Finland , cited above, § 45 ; and Schöpfer v. Switzerland , cited above, pp. 1052-53, §§ 29-30, with further references).

174. Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. While lawyers too are certainly entitled to comment in public on the administration of justice, their criticism must not overstep certain bounds. Moreover, a lawyer ’ s freedom of expression in the courtroom is not unlimited and certain interests, such as the authority of the judiciary, are important enough to justify restrictions on this right. Nonetheless, even if in principle sentencing is a matter for the national courts, the Court recalls its case-law to the effect that it is only in exceptional circumstances that restriction – even by way of a lenient criminal penalty – of defence counsel ’ s freedom of expression can be accepted as necessary in a democratic society (see Nikula v. Finland , cited above, §§ 54-55).”

7. The limits of acceptable criticism are wider when directed at other parties to the proceedings, as was the case both in Nikula and the present case. Moreover, the Court made it clear that it is only in exceptional cases that restrictions – even by way of a lenient criminal penalty – of defence counsel ’ s freedom of expression can be accepted as necessary in a democratic society ( Nikula, cited above, § 55).

In the Nikula case, which concerned the defamation of a prosecutor by defence counsel, the Court noted the distinction made in various Contracting States between the role of the prosecutor as the opponent of the accused, and that of the judge and said that generally speaking, that difference should provide increased protection for statements whereby an accused criticised a prosecutor, as opposed to verbally attacking the judge or the court as a whole (§ 50). The criticism was directed at the prosecution strategy which, in the applicant ’ s view, constituted “role manipulation ... breaching his official duties”. Although some of the terms were inappropriate, her criticism was strictly limited to T. ’ s performance as the prosecutor in the case against the applicant ’ s client, as distinct from criticism focusing on T. ’ s general professional or other qualities. In that procedural context, the Court considered that T. had to tolerate very considerable criticism by the applicant in her capacity as defence counsel. (§ 51). It noted that the applicant ’ s submissions were confined to the courtroom, as opposed to criticism of a judge or a prosecutor voiced in, for instance, the media, and that the applicant ’ s criticism of the prosecutor, being of a procedural character, could not amount to a personal insult (§ 52).

In the present case, as in Nikula , the impugned expression – “playing tricks on my client” – was used by the lawyer in his observations with reference to the Vienna Food Agency, a party to the proceedings, which in administrative proceedings in Austria has a function comparable to that of the prosecution in ordinary criminal proceedings. However, contrary to the facts of the Nikula case, it was made in writing, and was not used at a public hearing in a courtroom or in the media ( Nikula, cited above, § 52). Thus the negative impact of the remark, if any, was quite limited.

8. We also think that the Court wrongly characterised the written reprimand as a lenient sanction. In the circumstances of the case, this sanction was clearly disproportionate. After all, disciplinary action against a lawyer is to be taken very seriously, as it has a potential chilling effect. With regard to disciplinary proceedings, the Court has already found that the mere threat of an ex post facto review of criticism voiced by counsel is difficult to reconcile with his duty to defend the interest of his client and would have a “chilling effect” on the practice of his profession ( see Nikula , cited above, § 54 , and Steur v. the Netherlands , no. 39657/98, § 44, ECHR 2003 ‑ XI ).

9. For the above reasons we are of the opinion that there has been a violation of Article 10 in the present case.