CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 avril 1997

.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. 30549/96                       by Hans MEISTER                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 10 April 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              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 11 March 1996 by Hans MEISTER against Germany and registered on 22 March 1996 under file No. 30549/96;        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 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. Application No. 25157/94 concerning his disciplinary punishment in 1993 was declared inadmissible in October 1995.        The facts of the present case, as submitted by the applicant, may be summarised as follows.        On 25 April 1994 the Düsseldorf District Disciplinary Court for Lawyers (Ehrengericht) issued a reprimand (Verweis) against the applicant and imposed a fine of DEM 40,000 upon him for having violated professional rules (anwaltliche Pflichtverletzung).        In its decision, the Disciplinary Court noted the applicant's previous four disciplinary punishments in 1979, 1981, 1983, 1986 and 1992, respectively.        As regards the present disciplinary punishment, the Disciplinary Court of Appeal considered that the following two sets of events.        The Court found first that in December 1992 the applicant, after having assisted a Nigerian accused in criminal proceedings on charges of fraud in 1991/92, had addressed a hierarchical complaint (Dienstaufsichtsbeschwerde) to the North-Rhine Westphalia Minister of Justice (Justizminister) in which he had criticised the conduct of the judges at the Wuppertal Regional Court (Landgericht) in the above proceedings and their judgment, and had further stated that "obviously the case had been tried by highly irritable idiots whose powers had gone to their heads" ("Offenbar haben hier hochreizbare Stießel zu Gericht gesessen, denen ihre Macht zu Kopf gestiegen ist.").   Following a reply by the President of the Wuppertal Regional Court that, having regard to the independence of the judiciary, the legal assessment by the judges concerned could not be reviewed, the applicant had again written to the Minister of Justice.   In a letter of 10 February 1993, he had questioned "whether he could still expect that [the Minister] would take any measure to stop the proven judicial arbitrariness" ("Kann ich damit rechnen, daß Sie noch etwas tun werden, was der erwiesenen richterlichen Willkür Einhalt gebietet?").   Moreover, he further stated that, should the Minister also refer to the independence of the judiciary, "he would regard him as being one of these clowns who, as a result of their idle talk, had forgotten about the imperative needs of a State" ("... sind auch Sie für mich einer jener Hanswurste, denen vor lauter Geschwätz der Nerv für die Notwendigkeiten eines Staates abhanden gekommen ist.").   Upon the Minister's reply confirming the position of the President of the Regional Court, the applicant, in submissions to the Minister of 10 April 1993, had reproached him with "washing his hands of it with legally imposed stupidity and acting with impudence towards the people whom he was supposed to serve" ("... Sie Ihre Hände in der Unschuld gesetzlich verordneter Dummheit waschen und Frechheit gegenüber dem Volk, dem Sie dienen sollen.").        Secondly, the applicant, in submissions to the Neustadt Administrative Court (Verwaltungsgericht) of 29 December 1992, had criticised a decision of that Court refusing an interim injunction, apparently in expulsion proceedings.   He had, inter alia, stated that the decision was "biased idle talk" ("voreingenommenes Geschwätz") and "shameless deception" ("schamloser Betrug").   Following complaints raised by the President of the Administrative Court with the competent Düsseldorf Bar Association (Rechtsanwaltskammer), the   applicant had been requested to comment upon the matter.   He had again written to the President of the Administrative Court requesting him that the above decision be reviewed.   He had further assumed that the President would refuse such review although "the decision in question was bristling with impudence and idleness" ("... der ergangene Beschluß von Dreistigkeit und Faulheit strotzt.").        The Disciplinary Court 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 (Bundesrechtsanwalts- rdnung).        According to S. 43, a lawyer has to practise his profession conscientiously, 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 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 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 Court noted in particular that these insulting statements had been made following the termination of the respective court proceedings.        On 20 September 1994 the North-Rhine Westphalia Disciplinary Court of Appeal (Anwaltsgerichtshof), following a hearing, dismissed the applicant's appeal (Berufung).   The Disciplinary Court of Appeal ordered that the case should not be subject to an appeal on points of law (Revision).        On 19 June 1995 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 27 September 1995 the Federal Constitutional Court refused to entertain the applicant's constitutional complaint (Verfassungs- beschwerde).   COMPLAINTS        The applicant complains under Article 10 of the Convention about the decision of the Düsseldorf Disciplinary Court of 25 April 1994, issuing a reprimand against him and imposing a fine for violation of professional duties.   THE LAW        The applicant complains that his disciplinary punishment infringed his right to freedom of expression.   He invokes Article 10 (Art. 10) of the convention which provides 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      ...        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 25 April 1994 the Düsseldorf Disciplinary Court for Lawyers, as confirmed by the North-Rhine Westphalia Disciplinary Court of Appeal, found the applicant guilty of having violated his professional duty of objectivity on numerous counts.   The Disciplinary Court considered that, in various written submissions with German courts and the North-Rhine Westphalia Minister of Justice, the applicant had made insulting statements about judges and the Minister of Justice which he regarded as having decided or acted incorrectly in the context of, or in relation to, 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 (Art. 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 HR, Barthold v. Germany judgment of 25 March 1985, Series A no. 90, pp. 21-23, paras. 45-48; Markt Intern Verlag GmbH and Klaus Beermann v. Germany 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 the Minister of Justice 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 (cf. Eur. Court HR, Observer and Guardian v. the United Kingdom 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 the Minister of Justice in written statements relating to court proceedings.        The Commission considers that the Disciplinary Court, in a very detailed reasoning, examined the applicant's various submissions which were considered to be of an insulting nature.   The Court had regard to the applicant's concern to protect the rightful interests of his clients, however, also noted that he had made these statements after termination of the respective proceedings.   The Court's findings were confirmed by the Disciplinary Court of Appeal and the applicant's complaints with the Federal Court of Justice and the Federal Constitutional Court remained unsuccessful.        The Commission finds that the Courts duly balanced the applicant's concern to protect the rightful interests of his clients and 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 disciplinary sanction chosen, i.e. a reprimand and a fine amounting to DEM 40,000 because of the applicant's recidivism, does not appear disproportionate to the legitimate aim pursued.        In these circumstances, the interference complained of was "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, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber