CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1995

.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. 25157/94                       by Hans MEISTER                       against Germany        The European Commission of Human Rights (First Chamber) sitting in private on 18 October 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 20 July 1994 by Hans MEISTER against Germany and registered on 15 September 1994 under file No. 25157/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The facts of the case, as they have been submitted by the applicant, may be summarised as follows.        The applicant, born in 1930, is a German national and resident in Düsseldorf.   He is a lawyer by profession.        His previous Application No. 12306/86 was declared inadmissible in 1988.   It concerned the applicant's complaint that his disciplinary punishment in 1981 and 1983, respectively, for having, in his capacity as a lawyer, made insulting statements violated his right to freedom of expression.        On 30 March 1992 the Düsseldorf District Disciplinary Court for Lawyers (Ehrengericht) issued a reprimand (Verweis) against the applicant and imposed a fine of DM 15,000 upon him for having violated professional rules (anwaltliche Pflichtverletzung).        On 16 February 1993 the Northrhine Westphalia Disciplinary Court of Appeal (Ehrengerichtshof), following a hearing, dismissed the applicant's appeal (Berufung).        In its decision, the Disciplinary Court of Appeal noted the applicant's previous four disciplinary punishments in 1979, 1981, 1983 and 1986, respectively, in respect of statements made in submissions to courts or other authorities.        As regards the present disciplinary punishment, the Disciplinary Court of Appeal considered that the applicant had violated professional rules in several respects, as follows.        The Court found first that the applicant, when the Duisburg Aliens' Office (Ausländeramt) had complained to him that he had made incriminating remarks towards one of its employees in the course of a telephone conversation concerning an asylum case, had replied in a letter stating inter alia that the interpretation of the relevant legal provisions by the employees of the Duisburg Aliens' Office was the method of "primitives" ("Primitivlinge") which should only serve at a low career level, or of persons who were influenced by their professional duties to such an extent that they could no longer think intelligently ("normal denken").   The Disciplinary Court noted that, in this respect, the applicant had been convicted by the criminal courts.        Secondly, following a decision of the Düsseldorf Prosecutor's Office to discontinue criminal proceedings against a third person against whom the applicant had laid charges, the applicant had appealed and had stated inter alia that he had asked himself whether he should find more fault with the stupidity or with the impudence and complacency of the decision concerned.        Thirdly, the applicant, in a letter to the Euskirchen Security Office (Ordnungsamt), had commented on a decision of the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) refusing asylum to one of the applicant's clients, and had stated that the Federal Office had, in its usual fraudulent manner, considered in detail the weaknesses of his client's statements, weaknesses which could be found in any statement, but not with the essence of the statements in question.   In this context, he had also complained in a letter to the Head of the Federal Office for Refugees about the practice of the Dortmund branch of this Office.   In this letter, the applicant had stated that a particular decision was a sequence of obvious lies.   He had continued that to oppose such considerations to an asylum seeker who had risked his life when putting up with a dictatorship, was the mentality of senile yes-men who did not know that resistance against tyranny and despotism had to come from individuals and to start as regards a service instruction given by persons whose life tenure had obviously completely taken away their courage.   They only produced page upon page and joined text elements but their allegations were lies without exception.        Fourthly, as regards statements contained in appeal submissions concerning further asylum proceedings, the Düsseldorf Bar Association had initiated disciplinary proceedings against the applicant.   In his comments on the disciplinary charges, the applicant had stated that the President of the Administrative Court of Appeal (Oberverwaltungs- gericht) and the Presiding Judge at the 13th Senate were obviously of the opinion that "one should work quietly in court even if life and liberty are at stake".   He had continued that "appeals to the conscience were regarded as a sacrilege and the sublimes thought to be entitled to fleece the poor people without them uttering a sound".        Fifthly, following the termination of a legal dispute concerning another lawyer's fees, the applicant had addressed a letter to the Regional Court (Landgericht), stating that in the case concerned the "usury of a lawyer, the shameless partiality of the Board of a Bar Association and the impudent blathering of a Chamber of the Regional Court had trustfully cooperated in order to cheat a party to the proceedings".   In a letter to the Disciplinary Court for Lawyers, the applicant had further commented on statements made by the Board of the Bar Association in the context of the disciplinary proceedings against him, stating that "such a power-obsessed and disloyal riffraff pretended to serve truth and justice".        Sixthly, in written submissions relating to social court proceedings the applicant had stated that the decision refusing an interim injunction suited "crooks" but not a court.   In the disciplinary proceedings the applicant confirmed his statement, adding that the decision of the Administrative Court in the case concerned showed that there was a "canaille" considering that only people with a regular income were honourable human beings.        The Disciplinary Court of Appeal considered that in the above cases the applicant had violated his professional duties within the meaning of the S. 43 of the Federal Regulations for Lawyers (Bundes- rechtsanwaltsordnung).        According to S. 43, a lawyer has to practise his profession conscentiously, and, whether in pursuit of his profession or otherwise, he has to prove himself worthy of the respect and trust which the position of a lawyer requires.   Referring to the jurisprudence of the Federal Constitutional Court (Bundesverfassungsgericht), the Disciplinary Court of Appeal observed that a violation of the professional duty of objectivity (Sachlichkeitsgebot) could entail disciplinary measures to the extent that the criminal offences of insult or defamation were at issue and that the other person or the course of the proceedings had not given rise to such statements.        The Disciplinary Court of Appeal examined the applicant's above- mentioned statements in the light of these principles and gave detailed reasons that they were of an insulting character without this being necessary for the purposes of each of the proceedings concerned.        The Disciplinary Court ordered that the case should not be subject to an appeal on points of law (Revision).        On 21 February 1994 the Lawyers' Senate (Senat für Anwaltssachen) at the Federal Court of Justice (Bundesgerichtshof) dismissed the applicant's request for leave to appeal on points of law (Beschwerde gegen die Nichtzulassung der Revision).        On 18 May 1994 the Federal Constitutional Court refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde).   COMPLAINT        The applicant complains under Article 10 of the Convention about the decision of the North-Rhine Westphalia Disciplinary Court of Appeal of 16 February 1993, issuing a reprimand against him and imposing a fine for violation of professional duties.   THE LAW        The applicant complains under Article 10 (Art. 10) of the Convention that the reprimand issued by the North-Rhine Westphalia Disciplinary Court of Appeal as well as the fine of DM 15,000 imposed upon him infringed his right to freedom of expression.        Article 10 (Art. 10) of the Convention, as far as relevant, provides:        "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 ...        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 Commission notes that on 16 February 1993 the North-Rhine Westphalia Disciplinary Court of Appeal, confirming a first instance judgment, found the applicant guilty of having violated his professional duty of objectivity on numerous counts.   The Disciplinary Court considered that the applicant had made, in particular in written submissions with German courts, insulting statements about judges and other persons which he regarded as having decided or acted incorrectly in the context of court proceedings.        The Commission finds that this measure constituted an interference with the exercise of the applicant's freedom of expression.   Such interference is in breach of Article 10, unless it is justified under paragraph 2 of Article 10 (Art. 10-2), i.e. it must be "prescribed by law", have an aim or aims that is or are legitimate under Article 10 para. 2 (Art. 10-2) and be "necessary in a democratic society".        The legal basis of the interference under consideration was S. 43 of the Federal Regulations for Lawyers.        The Commission finds that the general description of the professional duties as contained in S. 43 of the Federal Regulations for Lawyers does not raise any problem as to the requirements of accessibility and foreseeability of the interference.   Frequently laws are framed in a manner that is not absolutely precise and, in such cases, their interpretation and application are inevitably questions of practice (cf. mutatis mutandis, Eur. Court H.R., Barthold judgment of 25 March 1985, Series A no. 90, pp. 21-23, paras. 45-48; Markt Intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989, Series A no. 165, p. 18, para. 30).        In the present case, the requirement of objectivity and the duty to refrain from insult and defamation formed part of the essence of professional duties, in accordance with the jurisprudence of the disciplinary courts and the Federal Constitutional Court (cf. No. 14622/89, Dec. 7.3.91, D.R. 69, p. 272)..        The interference complained of can, therefore, be considered as "prescribed by law" for the purposes of Article 10 para. 2 (Art. 10-2).        Moreover, the decisions complained of aimed to protect "the reputation or rights of others", namely the judges and other persons affected by the applicant's statements, which is a legitimate aim under Article 10 para. 2 (Art. 10-2).        It remains to be determined whether the interference complained of was "necessary in a democratic society" and proportionate to the legitimate aim pursued.        The Commission recalls that the adjective "necessary" within the meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a "pressing social need". The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision (Eur. Court H.R., Observer and Guardian judgment of 26 November 1991, Series A no. 216, pp. 29-30, para. 59; see also No. 14622/89, Dec. 7.3.91, loc. cit.).        The Commission notes that disciplinary proceedings were conducted against the applicant for breach of the professional duties, namely for having insulted judges and other persons in written statements in the context of court and other proceedings.        The Commission considers that the Disciplinary Court of Appeal, in a very detailed reasoning, examined the applicant's various submissions which were considered to be of an insulting nature.   The Court of Appeal's findings were confirmed by the Federal Court of Justice.        The Commission finds that the Courts duly balanced the applicant's right to lodge complaints against the necessity, in a democratic society, to protect the reputation and rights of others, here in particular judges, against insult.   Having considered the impugned statements, the Commission finds that there were relevant and sufficient reasons for a disciplinary measure against the applicant.        Moreover, the sanction chosen, i.e. a reprimand and a fine amounting to DM 15,000, does not appear disproportionate to the legitimate aim pursued, given the situation that the applicant had been previously convicted of similar disciplinary offences.        In these circumstances, the interference complained of can, therefore, be regarded as "necessary in a democratic society" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.        Accordingly, there is no appearance of a violation of the applicant's right under Article 10 (Art. 10) of the Convention.        It follows that the application is manifestly ill-founded with the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber         (M.F. BUQUICCHIO)                          (C.L. ROZAKIS)