JOINT DISSENTING OPINION OF JUDGE S ZAGREBELSKY AND BERRO-LEF È VRE

(Translation)

1. To our great regret, we are unable to agree with the Court ' s conclusion that there has been a violation of Article 10 of the Convention.

2. This case concerns a lawyer ' s freedom of expression and focuses on statements made by him during a radio interview, and subsequently reported in the press, in the context of a dispute between two private parties .

The Court has concluded that the Disciplinary Appeals Tribunal ' s decision was based on an inadequate assessment of the relevant facts, and that the applicant could not therefore be blamed for having overstepped the limits of acceptable professional behaviour .

3. The Cour t has always taken a careful approach to restrictions on lawyers ' freedom of expression in judicial proceedings, and has considered that this freedom must remain compatible with the contribution that lawyers are expected to make to maintaining confidence in the public administration of justice ( see Schöpfer v . S witzerland , judgment of 20 May 1998, Reports of Judgments and Decisions 1998 III, p p . 1052-53, § 29; and Kyprianou v. Cyprus [GC], no. 73797/01, § 173, ECHR 2005 ‑ ... ). In this context, it has considered that lawyers ' specific status gives them a central position in the administration of justice as intermediaries between the public and the courts , which explains both the usual restrictions on the conduct of members of the Bar and the monitoring and supervisory powers vested in the various Bar councils ( see Casado Coca v. Spain , judgment of 24 February 1994, Series A no. 285 ‑ A, p . 21, § 54; and Nikula v. Finland , no. 31611/96, § 45 , ECHR 2002 ‑ II ).

4. We do not consider these references to lawyers ' rights and obligations to be relevant in the case before us, however, since the applicant was speaking on a radio broadcast – and, admittedly, making use of his status as a lawyer – rather than in the context of any judicial proceedings. It would therefore appear that he was bound, not only by the inherent limits on freedom of expression that would apply to any individual, but also, given the professional capacity on which he relied, by the ethical rules imposed on its members by each Bar (cf. the above-cited case-law ).

5. In addition, although the Court may be required to show tolerance with regard to the limits of acceptable criticism, which are wider with regard to a politician ( see Oberschlick v. Austria (no. 2) , judgment of 1 July 1997, Reports 1997 ‑ IV, p. 1275 , § 29 ), this was not the situation in this case, given that the applicant ' s comments referred to an ordinary citizen.

6. In the first place, the applicant gave his radio interview on 28 November 2001. His clients, the K. family, who had been accused in 2000 by a third party, M s A.K., did not bring proceedings for compensation against Mr Kieft until 13 October 2005.

Thus, the applicant first attacked Mr Kieft publicly more than four years before an action was even was brought against him by the applicant ' s clients.

7. Secondly, and to put it mildly, the applicant did not show moderation in his tone and vocabulary .

In this connection, and referring to Mr Kieft , he stated:

“Someone like that shouldn ' t, should not be allowed to be a therapist surely? That man, he lives in North Holland province, he should, er , grow cabbages for the market ... He should go and grow cabbages out there, but he should absolutely not be working with ... patients ... ”

and

“... I just can ' t imagine how anyone can be so presumptuous as to tell two vulnerable old people, like some sort of guru, and, er , his truth ...”

Those remarks, while explicable in the context of the serious and sordid accusations previously made against the K. family, represent, in our opinion, criticisms which amount to a purely personal attack, and were solely intended to discredit Mr Kieft ' s reputation as a professional practitioner.

Unlike the majority, we do not believe that the particular context of the case enables one to consider that statements such as those made by the applicant may not be grounded in fact, or that the Disciplinary Appeals Tribunal erred in its assessment of the relevant facts. Far from being classifiable as merely the expression of an opinion, the terms used amounted to insults - which, incidentally, were unnecessary to support the applicant ' s argument - and were used solely for the purpose of publicly denigrating the person concerned.

8. Finally, and thirdly, we note that the sanction imposed on the applicant, namely an admonition, is not at all a heavy one, and merely results in a statement of principle by the disciplinary authority.

9. Everyone is aware that, in the courtroom, a lawyer may occasionally use virulent language and take a totally subjective view ; parties to proceedings may thus expect to be subjected to sharp criticism. In this connection, a number of Council of Europe member States grant immunity with regard to statements made by a lawyer when representing his or her client before a court. Such immunity is linked to his or her obligation to defend the client ' s interests.

In the instant case, however, the c riti cism in question, part of which is in the nature of abuse, was made outside the courtroom and referred to a private individual.

We consider it particularly problematic, and even dangerous , to permit a lawyer to heap opprobrium on an individual, whoever he or she is, outside the context of judicial proceedings.