CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 mars 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)