CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 mai 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. 12959/87                       by S.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 3 May 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   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 19 May 1987 by S. against the Federal Republic of Germany and registered on 27 May 1987 under file No. 12959/87;           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 1944 and living in Bernkastel-Kues.           In 1975 the applicant was admitted to the Bar in the district of the District Court (Amtsgericht) at Bernkastel-Kues and the Regional Court (Landgericht) at Trier.           On 10 October 1984 the President of the Koblenz Court of Appeal (Oberlandesgericht) as an organ of the judicial administration revoked the applicant's admission to the Bar on the ground of mental deficiency ( Schwäche der geistigen Kräfte).   This decision was taken in accordance with Section 14 (1) No. 4 which provides:           (1) A lawyer has to be disbarred ...           (No. 4) if due to physical defects or a weakness of         his mental capacity he is definitely unfit to exercise         the profession in a correct manner and if otherwise he         would be a danger to the administration of justice.           The decision was based on a medical expert opinion according to which the applicant had developed a paranoic syndrome and there were little chances to cure him.   The expert opinion had been submitted by Prof.   G. in criminal proceedings against the applicant who had been accused of having made insulting and slandering remarks.           The applicant took the matter to the Disciplinary Court for Lawyers (Ehrengerichtshof) in Rheinland-Pfalz which dismissed his action on 11 November 1985.   The applicant lodged an appeal to the Federal Court (Bundesgerichtshof).   This remedy was rejected on 8 December 1986.            According to the findings of these courts the applicant is notorious for his verbal aggressiveness and for insulting or defaming adverse parties, their legal representatives, judges, public prosecutors etc.   In 1978 and 1981 he was convicted of having made slanderous remarks (üble Nachrede) in relation to a judge and two police officers.   Several further and similar charges were no longer determined as on 18 January 1984 the District Court at Bernkastel-Kues acquitted the applicant on the ground that possibly he was not responsible for the offences on account of psychic disturbances (seelische Abartigkeit = Querulanz).           The Federal Court noted that the subject matter of the latter criminal proceedings had been the applicant's submissions between July 1978 and October 1982 in various civil court proceedings.   The applicant had represented two creditors who had previously accepted a settlement proposed by the debtor, a private company.   The applicant argued in these previous civil court proceedings that the settlement had been reached by dishonest means.   In this context he accused, inter alia, the director of a bank of "fraudulent manipulations, unequalled impudence, misuse of his position, complete failure, conspiracy, deceit, blackmail" etc.   The District Court at Bernkastel-Kues found however that the bank director in question had acted correctly and in the best interests both of the business firm and of its creditors.           With regard to another adverse party the applicant had inter alia submitted that his opponent tried to reach unjustified advantages by "malice, lies, deceit and other shabby means".   He qualified the submissions of his opponent's counsel as "juridical nonsense" which would not turn into a bright idea just because it was produced by a renowned law firm.           The applicant had also accused a tax adviser of "fraud, large scale deceit of creditors committed with unequalled impudence".   These accusations were likewise found to be totally unfounded.           In connection with the last criminal proceedings against him, the applicant had also written to the President of the Koblenz Court of Appeal stating, inter alia, that "arbitrariness was covered by the President, that his (the applicant's) accusation of misuse in office had been rejected on the basis of mere assumptions and of unjustified fictions which made it clear that the President did not act in the interests of justice.   Such practice could not be distinguished from that of fascist or communist systems".           The Federal Court further stated that several disciplinary proceedings had been instituted against the applicant.   He had been fined on 10 September 1979 for prohibited advertising and on 24 November 1979 for a violation of his professional duty to report to the Bar Association in a case where he acted as trustee in bankruptcy. Other disciplinary proceedings on account of statements made by the applicant which were considered of insulting or defamatory character were discontinued in view of criminal convictions relating to the same matter or in view of the applicant's above mentioned acquittal on account of his assumed lack or responsibility under criminal law.           The Federal Court also pointed out that the applicant distinguished himself by lodging numerous unfounded hierarchical complaints.   Between June 1980 and February 1985 he had also lodged 18 unsuccessful constitutional complaints.   In two cases he was imposed a fine for having misused the right of petition (Missbrauchsgebühr).   In connection with these complaints he had written numerous letters to the Federal Constitutional Court challenging judges, or accusing them of deliberate "perversion of justice, high treason and law breaking". Inter alia he compared the Federal Constitutional Court justice Prof. Zeidler to the ill-famed former President Freisler of the Nazi People's Court (Volksgerichtshof).           In view of the facts established and the further medical expert opinions submitted in the proceedings the Federal Court agreed with the Disciplinary Court for Lawyers in Rheinland-Pfalz that the applicant's removal from the Bar roll was justified under Section 14(1) No. 4 of the Federal Lawyers' Act (BRAO) because he was unfit to exercise the profession of a lawyer constituting a danger to the proper administration of justice on account of mental deficiency (Schwäche der geistigen Kräfte).           The Federal Court first considered the applicant's complaint that the administrative decision of 10 October 1984 disbarring him was signed by the President of the Koblenz Court of Appeal who had also been a victim of the applicant's verbal aggressions and had therefore laid criminal charges against the applicant.   It was true that from the applicant's point of view this could raise doubts as to the President's impartiality.   The Federal Court nevertheless considered that this circumstance was not of such importance as to affect the validity of the decision disbarring the applicant.   The Federal Court noted in this context that the President did not have any discretionary power in the applicant's matter as Section 14(1) No. 4 BRAO required cogently the removal of a person from the Bar roll when the conditions set out in the provision were fulfilled.           The Federal Court pointed out that Section 14(1) No. 4 BRAO does not require debility or mental illness (Geisteskrankheit, geistige Schwäche) within the meaning of Section 6(1) No. 1 of the Civil Code (BGB) or Section 20 of the Criminal Code (StGB).   What mattered was whether or not a lawyer had mental defects (geistige Mängel) of such nature and importance that he was no longer fit to exercise his profession in an adequate manner and without being a danger to the proper administration of justice.           In the Federal Court's opinion the applicant's voluminous and numerous memorials and other submissions conveyed even to a person without medical and psychiatric qualifications the impression that his behaviour did not correspond to the image one has of a normal lawyer. In view of the manner, the extent and the gravity of his blunders as compared with the underlying causes the applicant was mentally no longer capable of exercising the profession of a lawyer in a correct manner.   This impression which could be gained from a mere reading of the documents in the files was corroborated by the expert opinions of Prof.   G. and Prof.   E. It was not refuted by the two counter-opinions submitted by the applicant.   It was true that Prof.   F. saw no indication of a mental deficiency.   On the other hand Prof.   M. admitted that there existed symptoms of graphomania and escalating verbal aggressiveness which however he considered not sufficient for a diagnosis of a querulous mania (Querulantenwahn).           Considering that the striking off the roll of the Bar is a very serious interference the Federal Court underligned that despite the negative evidence already existing it tried to obtain further expert opinion because the applicant had refused to be examined by the experts G. and E.   Therefore it was decided at the oral hearing of 26 May 1986 to obtain a further expert opinion.   However, the applicant subsequently withdrew his consent to be examined by another expert.   He even lodged a constitutional complaint against the order of 26 May 1986 (this complaint was rejected on 21 July 1986 as being inadmissible).   He also rejected a further proposal to name four medical experts among whom the court could choose.   Rather he informed the court that he was no longer willing to undergo an examination by a medical expert.   Therefore the Federal Court could do no more than to invite the four experts who had previously established expert opinions to explain their opinions at an oral hearing.   At the hearing three of the experts, namely E., M. and G., had agreed that the applicant's querulous development had to be located at the interface between normal and abnormal behaviour and constituted a serious personality disorder.   The opinion of the expert Prof.   F. did in the Federal Court's opinion not refute the finding of the existence of a mental deficiency.   The expert did not deny that the applicant was a querulous person.   He only considered that his behaviour was not an expression of mental illness.   However, so the Federal Court underligned again, Section 14(1) No. 4 BRAO did not require mental illness.           Contrary to the applicant's arguments the Federal Court considered that in view of the great number of his blunders one could no longer consider them to be deliberate provocations caused by the circumstances of particular situations.   Rather they were the expression of a continuous and deep rooted personality disorder.   This disorder had been caused by the permanent failure in his legal affairs.   However, even assuming that some of the cases decided against the applicant's clients could have been judged in a different manner there was no indication of perversion of justice on a large scale as the applicant submitted which could have justified his behaviour.           The Federal Court consequently concluded that the applicant's personality disorder rendered him unfit to exercise the profession of a lawyer.   A lawyer had to be able to distinguish between his own views and the objective requirements of the law in order to evaluate objectively the chances of success of a remedy.   Guidelines for his behaviour had to be the rule of law and the observance of realistic objectivity.   The applicant's mental disorder was such that he no longer offered the guarantee of advising clients in an objective and reasonable manner.   This followed from his behaviour in general.           In this context the Federal Court also took into account that the applicant had lodged numerous constitutional complaints which were all rejected as being inadmissible.           This proved that he was no longer able to judge a legal issue from another point of view than his own.   His aggressiveness was not limited to the pending case but led him to attack judges personally and to insult them as law breakers or traitors.   Such attitude could not further the cause of his clients.   His inaptness to exercise the profession of a lawyer was in the Federal Court's opinion not of a provisional character.   The experts M. and G., so the Court pointed out, considered that an amelioration of the applicant's condition could hardly be expected although it could not be excluded.   Given that the applicant's verbal aggressiveness had developed and intensified during the last eight years with an increasing circle of persons affected by his defamations, such as adverse parties and their representatives, colleagues, witnesses, judges of various courts and the judiciary as such, it could hardly be expected that his behaviour would improve within a foreseeable future.           Lastly, the Federal Court considered that the principle of proportionality was not violated by the fact that the applicant was disbarred instead of being prosecuted first by way of disciplinary proceedings.   The Federal Court considered that the outcome of disciplinary proceedings would also have been the striking off the roll of the Bar.           The applicant's constitutional complaint against the Federal Court's decision of 8 December 1986 was rejected by a group of three judges of the Federal Constitutional Court (Bunderverfassungsgericht) on 23 March 1987 partly as being inadmissible and partly as offering no prospects of success.           The alleged violations of Article 2 para. 2 (personality right) and Article 103 para. 1 (right to a fair hearing) of the Basic Law (GG) were considered to be unsubstantiated and therefore inadmissible.   The alleged violations of the right to choose one's profession (Article 14 para. 1 GG) and of the right to freedom of opinion and of expression (Article 5 para. 1 and para. 2 GG) were assumed to be admissible but to be in any event clearly ill-founded. The Federal Constitutional Court considered that the Federal Court's interpretation of Section 14 (1) No. 4 BRAO, namely that important mental defects of a lawyer were sufficient to disbar him, did not violate any basic rights.   The Federal Court's proposal to have the applicant examined by a medical expert whom the Federal Court intended to choose among four experts named by the applicant himself was likewise not considered to be objectionable.   The Federal Constitutional Court also pointed out that the Federal Court in the decision complained of recognised the right of a lawyer to defend his client's interests vis-à-vis the authorities, courts, colleagues and adverse parties in a committed and energetic manner.   In these circumstances there was no indication of a violation of the rights invoked by the applicant.           Insofar as the applicant had complained that no ex officio counsel had been appointed for his defence the Federal Constitutional Court stated that the applicant had not alleged that, for financial reasons only, he had been deprived of the right to choose a defence counsel to defend his case.   Furthermore the application of Section 14 (1) No. 4 BRAO only meant that he was unfit to represent others but not himself.   COMPLAINTS           The applicant is of the opinion that he was wrongly struck off the roll of the Bar and that his action contesting the legality of this measure was not decided in a fair manner.   He submits, inter alia, that the presiding judge of the Disciplinary Court for Lawyers was a lawyer who had been involved as counsel of creditors in the civil proceedings in which he, the applicant, was accused of having acted in violation of his professional duties.   Futhermore he submits that he was invited at the end of September 1985 only to attend three days of hearing in November before the Disciplinary Court.           His request for an adjournment was rejected, therefore his counsel was unable to attend and he had to defend his case himself. However, as he was considered to be unfit to act as a lawyer and as his case was of a complex and difficult nature his requests for legal aid should have been granted.           As regards the proceedings before the Federal Court he submits that this court disregarded that he always defended clear and unequivocal legal positions of his clients whereas courts and authorities committed perversion of justice to his own and his clients' detriment.   He considers that contrary to the opinion of the medical experts and without taking into account his legal arguments the Federal Court manipulated the facts in order to arrive at a finding that he was suffering from a personality disorder.   He also complains of the length of the proceedings and invokes Articles 3, 6 para. 1, para. 2, 8 para. 1, 9 para. 1, 10 para. 1 and 17 of the Convention and Article 1 of the First Protocol, all provisions also read in conjunction with Article 14 of the Convention.   THE LAW   1.       The applicant has complained that he was wrongly struck off the roll of the Bar.   He has also complained of the court proceedings concerned.           With regard to the judicial decisions of which the applicant complains, the Commission recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;   No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           It is true that in this case the applicant also complains that he was not given a fair trial in the proceedings which he instituted against the administrative decision disbarring him.   He submits, inter alia, that he should have been granted legal aid.   He also submits that the presiding judge of the Disciplinary Court for lawyers was biased.   In this connection he alleges a violation of Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention.           However, even assuming that Article 6 para. 2 (Art. 6-2)of the Convention applies to the proceedings in question and that the applicant has exhausted domestic remedies in respect of all these particular complaints, the Commission first notes that the right to legal aid in civil proceedings is not as such granted by Article 6 (Art. 6) of the Convention. Furthermore, the applicant has not shown that he made a request to be granted legal aid and that such a request was rejected in an arbitrary manner.   As regards the fairness of the proceedings in general and the impartiality of the judges, the Commission notes that the applicant's case was carefully examined by the Disciplinary Court for Lawyers and, in second instance, by the Federal Court.   The applicant has not substantiated his claim that any of the judges were biased.   The Federal Court heard four medical experts and proposed to the applicant that a fifth expert opinion be obtained from an expert who would have the possibility of examining the applicant personally.   The applicant withdrew, however, his consent to this proposal.   The Federal Court also heard the applicant personally.   In these circumstances it cannot be found that the facts as presented by the applicant disclose any appearance of a violation of the right to a fair trial as guaranteed by Article 6 (Art. 6) of the Convention.           The Commission further notes that the proceedings before the Disciplinary Court for Lawyers in Rheinland-Pfalz and subsequently before the Federal Court lasted two years.   Both courts heard medical experts and examined the case in a very careful and extensive manner as is evidenced by the detailed reasons stated in their decisions. There is nothing to show that the examination of the case was in any way unreasonably delayed.   It follows that in this respect there is likewise no appearance of a violation of the right to speedy proceedings as guaranteed by Article 6 (Art. 6) of the Convention.   2.       The applicant has also alleged violations of Articles 8, 9 and 10 (Art. 8, 9, 10) of the Convention.   However, the exercise of the rights guaranteed by these provisions may, according to their second paragraph, be subject to such restrictions 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, insofar as the right to freedom of expression is concerned (Article 10 para. 1 (Art. 10-1) of the Convention), for maintaining the authoritiy and impartiality of the judiciary.           In the present case the decision to strike the applicant off the roll of the Bar was based on Section 14 (1) No. 4 of the Federal Lawyers' Act (BRAO) and was thus prescribed by law.           As to the question of necessity of the interference complained of, the Commission notes that the applicant is a member of a profession that exercises important functions in respect of the administration of justice.   The members of this profession can and must therefore be expected not to suffer from any personality disorder that affects the exercise of their profession in a negative manner.   Such personality disorder was, however, found to exist in the applicant's case.   The Federal Court stated that it was evident from the files, i.e. the applicant's submissions in various court proceedings over the years, that his aggressive and defamatory attitude could no longer be considered as a deliberate provocation caused by the circumstances of particular situations.   It was more the expression of a continuous and deep-rooted personality disorder.   These findings were also based on several expert opinions.   In this context it has also been noted that the applicant declined to have himself examined by a further medical expert.           In these circumstances the decision to strike him off the roll of the Bar was justified as being necessary in a democratic society, both for the protection of the rights of others and for maintaining the authority and impartiality of the judiciary, within the meaning of paragraph 2 (Art. 8-2, 9-2, 10-2) of the Articles in question.   3.       The applicant has also invoked Article 1 of the First Protocol (P1-1) and Articles 14 and 17 (Art. 14, 17) of the Convention.   The Commission finds, however, that his submissions in this respect likewise do not disclose any appearance of a violation.           It follows that the application is manifestly ill-founded within the meaning of Article 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)