CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 octobre 1996

.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. 22103/93                       by Sigurdur GEORGSSON                       against Iceland         The European Commission of Human Rights (Second Chamber) sitting in private on 16 October 1996, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA              Ms.    M.-T. SCHOEPFER, 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 3 May 1993 by Sigurdur GEORGSSON against Iceland and registered on 21 June 1993 under file No. 22103/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 23 March 1995 and the observations in reply submitted by the applicant on 15 May 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is an Icelandic citizen, born in 1946. He resides in Reykjavík and is a lawyer by profession. Before the Commission he is represented by Mr. Magnús Thoroddsen, a lawyer practising in Reykjavík.         The facts of the case, as submitted by the parties, may be summarised as follows.   A.     The particular circumstances of the case         The applicant represented Mrs HM in the course of the public settlement procedure of the estate of her late father, Mr MO, who died on 28 December 1983. Mrs HM was the sole legal heir.         On 5 January 1984 the applicant requested on behalf of his client that the Town Magistrate of Hafnarfjördur put the flat of the deceased under seal and that the status as regards the assets and liabilities of the estate be officially ascertained. The Magistrate sealed the flat at once, and decided that the estate's status would be examined in due course. On 12 January 1984 the estate was formally received by the Magistrate for official settlement proceedings. On that occasion the nephew of the deceased, Mr OH, submitted a will dated 26 October 1983, signed by the deceased, in which he assigned one third of his property to OH and a purchase agreement dated 26 October 1983 whereby MO sold his flat in Hafnarfjördur to OH. The applicant contested the will and the purchase agreement and demanded that an official investigation be conducted of their origins. Therefore the Probate Court judge in charge of the case, Mr MP, drew the applicant's attention to the possibility of submitting a reasoned complaint to the State Criminal Investigation Police. On the following day, 13 January 1984, the applicant sent his complaint to the Criminal Investigation Police, and described his suspicions relating to the origins of the said documents. The Police sent the complaint to the Public Prosecutor, who considered that there were not at the time sufficient reasons to order an investigation.         In the first half of 1984 the Probate Court judge, Mr MP, conducted a detailed examination for the purposes of the settlement of the estate, which involved, among other things, hearings, examination of bank accounts, and an investigation into the financial management of OH on behalf of the deceased. On 7 June 1984 the two witnesses to the testamentary disposition provided a statement in court to the effect that they had attested to the will in the presence of the deceased. At this time the applicant requested that the valuables in the possession of OH be taken into the possession of the Probate Court. Since a request of this nature was not, under domestic law, a matter for the Probate Court to decide, the Probate Court judge could only dismiss the request. The applicant appealed against this decision of dismissal to the Supreme Court which upheld it in a judgment of 5 October 1985.         On 6 July 1984 the Probate Court judge sent the entire case file to the Public Prosecutor. On 2 December that year, while the case file was still with the Public Prosecutor, it was established in the Probate Court, by a statement provided by one of the testamentary witnesses, that the contested will left by the deceased was only attested after his death. Subsequently, OH confessed that he had induced the witnesses to present incorrect statements in court to the effect that the will had been properly attested. On 10 January 1985 the Probate Court judge informed the Public Prosecutor of the further developments and transmitted the documents which had been submitted in court. Following an examination the Public Prosecutor issued an indictment on 18 April 1986 against OH and the two witnesses.         In the meantime, on 22 January 1986, the Probate Court judge, Mr MP, handed the valuables in the possession of the estate over to the sole heir, Mrs HM. This occasion was the last formal meeting held by the Probate Court judge in connection with the settlement.         Some delays occurred in the handling of the action in the Criminal Court of Hafnarfjördur against OH and the two witnesses. A judgment in the criminal case was rendered on 12 December 1990. The two witnesses were sentenced for presenting wrongful statements in court. OH was sentenced for embezzling approximately 1,000,000 ISK which he had hidden while the settlement of the estate was taking place, and also for his complicity in the crime of the two witnesses.         On 28 May 1992 the weekly Pressan published an article on the probate case in question. The article read as follows:         (Translation)                  "DEPRIVED THE HEIRS OF THEIR INHERITANCE         The probate judge in Hafnarfjördur disregarded a lawyer's       request for a police investigation of a forged testament       and of doubts as to the veracity of submitted documents.       The sole heir now contemplates whether the State Treasury       is liable for damages by reason of MP's blunders.         In the news of Pressan during the past two weeks the       official functions of the district court judge in       Hafnarfjördur have been subject to scrutiny. One of the       things mentioned was an indictment issued by the Office of       the Public Prosecutor against OH and two witnesses, and       also against the solicitor and real estate agent who was       acquitted. This legal action concerned forgery on the part       of OH of the testament of MO by which assets of the estate       are awarded to OH, but HM, MO's only daughter, should have       been the only heir to the estate. The two witnesses were       found guilty of having attested to the testament after MO's       death.         HM now contemplates whether she is entitled to damages from       the State Treasury by reason of the probate judge's       handling of this case.       ...                               THE ESTATE LOST         The assets of the estate have now been lost, and HM has, in       effect, been deprived of her inheritance. OH managed the       estate's assets, but now they are lost, as OH is bankrupt.       The dispositions made ... were held to have been       unauthorised, and (OH) was said to have embezzled       1,083,459 ISK (about 2.5 million ISK at today's price       levels).         The facts of the case are that MO died at Vílfilsstadir       hospital in late December 1983. On 12 January 1984 his       estate at death was received for official probate       proceedings by the Probate Court of Hafnarfjördur, the       estate comprising real property at ... Hafnarfjördur, a       car, furnishings and chattels. The probate judge was the       Town Magistrate of Hafnarfjördur and County Magistrate of       Kjósarsysla, Mr MP.                              FORGED DOCUMENTS         OH submitted a forged will in the Probate Court, with two       purchase agreements relating to the flat. The flat had been       closed under seal on 5 January 1984 at HM's request, but       the seal was removed when the court procedure commenced.         (The applicant), HM's lawyer, requested that the flat be       sealed again and that an official examination be made of       the documents submitted by OH.         (The applicant) furthermore requested an investigation of       whether OH had in his possession chattels or other moveable       property belonging to the estate, such as a TV set, a       piano, books, furniture or paintings. He also wanted to       have bank account entries examined, as well as the       whereabouts of the monies which OH stated that he had paid       to the deceased. This concerned, among other things, a       downpayment for a flat in Akureyri which OH had sold for       the deceased. OH had no receipts in his possession by which       he could demonstrate that the money had been delivered to       the deceased.         Mr MP denied these requests. The Public Prosecutor, in a       letter of 17 January 1985, did not consider that a criminal       investigation was required, except if requested by the       probate judge. It later came to light that money had been       appropriated by OH and that chattels belonging to the       estate were in his possession.         `I had serious doubts about the veracity of the submitted       documents, and I was suspicious of them', (the applicant)       said. `I asked repeatedly that settlement of the estate be       deferred. I also reported this to the Criminal       Investigation Police, who later established that the will       was forged. By then the defendant had received all the       valuables'.                    WHAT IS NEEDED IN ORDER TO CONVINCE                            A PROBATE JUDGE?         It may be asked at this juncture how long a probate judge       can disregard the requests of lawyers. The probate judge       probably did not think that the proofs and the documents       had the requisite legal form to justify delaying the       proceedings. `There may be a question what needs to be       established in order for the Probate Court judge to defer       the procedure', said (the applicant).         A lawyer whom Pressan consulted pointed out that OH's       criminal record certificate had provided a reason for MP to       take the lawyer's requests into account. MP could not be       contacted in order to obtain his comment on this point.         It is indicated in OH's statements to the Probate Court,       that no receipts or signatures of the deceased had been       available on account of gifts which OH reportedly had       received, saving account deposits included. OH maintained       that the deceased had, over the four month period from       August 1983 until MO's death, donated to him most of his       property.         At the beginning of December 1984 one of the witnesses       changed the statement previously given, and then it came to       light that the will was forged and had been signed after       MO's death."         The Probate Court judge reacted to the newspaper article by sending letters to the Icelandic Bar Association dated 1, 4 and 12 June 1992, requesting that the Board of the Association ask the applicant whether certain expressions which were published within quotation marks in the article in Pressan had been quoted after the applicant, and whether the applicant had been the newspaper's source of certain assertions included in the article. He then requested that the applicant be admonished and ordered to pay a fine of 50,000 ISK to the Support Fund of the Icelandic Bar Association on account of the conduct evinced by him in his profession, namely discussion in the mass media and with a mass media reporter of a court case handled by him, where he uttered incorrect and defamatory statements and wilfully presented incorrect and defamatory information unbecoming to the legal profession. The request was supported by references to the Act on the Members of the Bar No. 61 of 14 July 1942 (hereinafter the 1942 Act) and the Code of Ethics of the Icelandic Bar Association, in particular sections 2, 5 and 18.         During a meeting of the Board of the Icelandic Bar Association on 14 October 1992 a decision was taken to admonish the applicant on account of his expressions in the newspaper article in question concerning the Probate Court judge's handling of the case. In its decision the Board stated as follows:         (Translation)         "In the Board's opinion the question at issue in this case       is first and foremost whether (the applicant) acted       contrary to section 18 of the Association's Code of Ethics       when he answered the reporter's questions, i.e. whether he       failed in his statements to show (the Probate Court judge)       due consideration and respect, or whether he criticised       (the judge's) functions or procedures in an impertinent or       unprofessional manner.         The Board considers that professional lawyers must show       moderation and restraint when they express themselves on       the functions and procedures of the courts, as required by       section 18. It is immaterial whether such discussion takes       place in the mass media or elsewhere. They must thus be       careful that judicial matters are discussed in a pertinent       and orderly fashion, and that wrong or misleading       information on the facts of a case is not disseminated.         When examining the evidence in this case, and having regard       to the fact that (the applicant) took care of the interests       of the only daughter of the deceased from the beginning of       the probate court procedure and thus was aware of the facts       of the matter, the statements quoted from him must be       regarded as misleading in various respects and suited to       provide the reporter with an opportunity to make incorrect       deductions. By the statement 'I asked repeatedly that       settlement of the estate be deferred. I also reported this       to the Criminal Investigation Police, which later       established that the will was forged. By then the defendant       had received all the valuables', (the applicant) clearly       indicates that all the estate's valuables came into the       possession of the nephew of the deceased as a consequence       of the Probate Court judge's actions, but according to the       case documents this was not so. Furthermore, it was not the       complaint of (the applicant) to the State Criminal       Investigation Police of 13 January 1984 which made it       possible to demonstrate that the will had been wrongfully       prepared; this was brought about by a confession on the       part of one of the witnesses to the will before the       Criminal Court of Hafnarfjörddur on 2 December 1984.         In the Board's opinion (the applicant) did not act contrary       to section 5 of the Code of Ethics of the Icelandic Bar       Association by providing answers to the reporter's direct       questions. On the other hand the Board considers, by       reference to the above, that (the applicant) did not       adequately observe his duty under section 18, cf. also for       reference section 2, and thus acted contrary to the       Association's Code of Ethics.         With the above in view and with reference to section 8,       subsection 3, of the 1942 Act, the Board admonishes (the       applicant) by reason of the aforesaid.                                 CONCLUSION         (The applicant), Supreme Court lawyer, is admonished."         The applicant appealed against this decision to the Supreme Court on 21 October 1992. He maintained that his statements could not be deemed punishable within the meaning of the Bar Association's Code of Ethics which had to be interpreted in the light of the right to freedom of expression secured by the Icelandic Constitution and the European Convention on Human Rights.         By judgment of 17 December 1992 the Supreme Court upheld the decision. The Supreme Court did not state any reasons other than referring to the decision of the Board of the Bar Association.   B.     Relevant domestic law         The 1942 Act contains various general rules applying to the members of the Bar and other legal representatives before the courts. Section 1 of the 1942 Act specifies that barristers in the district courts and the Supreme Court are charged with public functions, and thus have various rights and duties, including a duty of silence as regards matters confided to them by a client. The Act also enumerates the conditions to be fulfilled in order to obtain a licence to practise as barristers, and under what circumstances such a licence can be revoked.         The Icelandic Bar Association is an association of barristers. The existence of the Association is provided for by law, cf. section 7 of the 1942 Act which, at the relevant time, read as follows:         (Translation)         "Barristers before the district courts and the Supreme       Court shall be members of an association, the Board of       which shall represent them to judicial and administrative       authorities in matters concerning the legal profession. The       rules of the association shall be submitted to the Minister       of Justice, who shall approve them or withhold approval."         Section 8 of the 1942 Act describes further the main purposes of the Icelandic Bar Association, including its control responsibilities and its judicial authority in certain cases. At the relevant time section 8 read as follows:         (Translation)         "The Board of the association of district court and Supreme       Court barristers shall control that the members observe the       law in their profession and perform their duties faithfully       and conscientiously. The Board is competent to resolve       disputes relating to fees for legal representation, if a       dispute concerning such fees is referred to it.         The Board of the association shall keep the activities of       the persons preparing to become district court barristers       under observation. The Ministry of Justice shall seek the       opinion of the Board of the association before issuing       professional licences for legal representation in district       courts.         The Board of the association may admonish individual       members and order the payment of fines of up to 50,000 ISK       to the Support Fund of the association on account of       conduct evinced by them which is to be regarded as       unbecoming to the legal profession.         Decisions of the Board of the association as provided for       in this section are subject to summary appeal to the       Supreme Court."         The Icelandic Bar Association issues a Code of Ethics for its members. The Code describes the general principles of good legal practice, a barrister's duties to clients, to the courts, to fellow professionals and to the opposite party, law offices and advertisements, and, finally, provides for sanctions in case its precepts are violated.         Section 2 of the Code expresses the general principle that a barrister shall, in his or her professional as well as private activities, protect the honour of the legal profession.         Section 5 of the Code reads as follows:         (Translation)         "A barrister may not, in the news media or in other public       fora, discuss or write about cases on which he is or has       been working, nor cause his own or his client's name to be       publicly mentioned in connection with such cases, except if       this is required by the legitimate interests of his client,       the public, or the barrister himself.         Having obtained the client's approval, questions concerning       individual points or facts of a case which are already in       public knowledge may however be directly answered, and a       barrister is generally free to object to or correct wrong       or misleading information on such matters.         Pertinent spoken or written discussion is also allowed of       cases already concluded which are of significance for the       legal profession or in legal theory, for example during       meetings of jurists or in legal periodicals, but anonymity       shall be observed as applicable.         A barrister shall always consult with the Board of the       Association in cases of doubt."         Section 18 provides for certain particular duties to be observed by barristers in connection with their discussions of matters concerning the judiciary. This provision reads:         (Translation)         "A barrister shall show the courts due consideration and       respect in speech, writing and conduct.         The courts may only be criticised on the basis of       professional and pertinent considerations."         Finally, section 40 of the Code of Ethics reads as follows:         (Translation)         "The Board of the Association shall supervise the       observance of the above principles. In this respect the       Board shall consult the courts and administrative       authorities as appropriate.         A barrister is obliged, at the request of the Board, to       provide the Board with an adequate explanation of a case       involving him concerning an alleged violation of, or a       dispute relating to the interpretation of, the above       principles.         In this regard a barrister is obliged, without undue delay,       to reply to the questions and heed the summons of the       Board.         Any dispute between members concerning the interpretation       of the above principles is subject to the Board's       resolution in accordance with Article 11 of the       Association's rules.         The Board of the Association may admonish individual       members and impose fines to be paid to the Support Fund of       the Association by reason of violation of the above       principles, as provided for in the 1942 Act, section 8.         If a decision or opinion of the Board provided in       accordance with section 5 is published, the names of the       parties concerned shall only be mentioned if the Board       considers this necessary, for example in view of the       interests of other members or by reason of the Board's       earlier involvement."   COMPLAINTS         The applicant complains that he has been impeded in exercising his right to freedom of expression contrary to Article 10 of the Convention. His comments were neither abusive nor defamatory and they were expressed in good faith without malice. The applicant contests that he can be held liable for the journalist's deductions from his statements. He finally submits that the admonition was not necessary in a democratic society nor justified under any of the other criteria stated in the second paragraph of Article 10 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 3 May 1993 and registered on 21 June 1993. On 11 January 1995 the Commission (Second Chamber) decided that notice of the application should be given to the respondent Government and invited them to submit written observations on the admissibility and merits thereof.         The Government's observations were submitted on 23 March 1995 and the applicant's observations in reply were submitted on 15 May 1995.   THE LAW         The applicant complains that his right to freedom of expression has been infringed in that he was the subject of an admonition for his comments quoted in a newspaper article. He invokes Article 10 (Art. 10) of the Convention which reads as follows:         "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 and regardless of frontiers.   This Article       shall not prevent States from requiring the licensing of       broadcasting, television or cinema enterprises.         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, in the interests of national security, territorial       integrity or public safety, for the prevention of disorder       or crime, for the protection of health or morals, for the       protection of the reputation or rights of others, for       preventing the disclosure of information received in       confidence, or for maintaining the authority and       impartiality of the judiciary."         The applicant maintains in particular that the interference was not justified and thus not "necessary in a democratic society". The Government submit, on the other hand, that the restriction served a pressing social need, in particular when considering that the expressions in question, in the Government's view, involved untrue allegations which needlessly cast doubt upon the functions performed by the Probate Court judge and, thus, were suited to detract from public trust in the courts.         The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Commission concludes, therefore, that the application is not manifestly ill- founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.        M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber