CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 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. 32137/96                       by Detlef WINTER                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 10 September 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                 N. BRATZA                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL            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 23 May 1996 by Detlef WINTER against Germany and registered on   4 July 1996 under file No. 32137/96;        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 1948 is a German national and resident in Lübeck. He is a lawyer by profession.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 8 February 1993 the Schleswig District Disciplinary Court for Lawyers (Ehrengericht), in a default judgment, issued a reprimand (Verweis) against the applicant and imposed a fine of DEM 3,000 upon him for having violated professional rules (anwaltliche Pflichtverletzung).        In its decision, the Disciplinary Court considered the following sets of events: the applicant had wrongly accused a colleague of having threatened to bring disciplinary proceedings and by this means having attempted to extort the waiver of a claim; he had disparaged another lawyer in written submissions to the Bar Association in referring to the fact that he had passed his exam only in the second round; and, despite a warning, he had failed to remove a plate at his old address although he had already moved four years before.        The Court considered that the applicant had thereby violated his professional duties within the meaning of the S. 43 of the Federal Regulations for Lawyers (Bundesrechtsanwaltsordnung).   According to this provision, 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.        On 17 January 1994 the Schleswig-Holstein Disciplinary Court of Appeal (Anwaltsgerichtshof) dismissed the applicant's appeal (Berufung). It ordered that the case should not be subject to an appeal on points of law (Revision).        On 21 November 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 (Nicht- zulassungsbeschwerde).        On 21 November 1995 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde).     COMPLAINTS        The applicant complains under Articles 6, 7 and 10 of the Convention about the decision of the Disciplinary Court, issuing a reprimand against him and imposing a fine for violation of professional duties, and also of the proceedings concerned.     THE LAW   1.    The applicant complains that his disciplinary punishment infringed his right to freedom of expression.   He invokes Article 10 (Art. 10) of the Convention.          This provision, as far as relevant, 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 finds that the measure complained of, i.e. the applicant's disciplinary punishment, constituted an interference with the exercise of the applicant's freedom of expression, as guaranteed under Article 10 para. 1 (Art. 10-1).        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 that is 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 at protecting "the reputation or rights of others", namely the other lawyers 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 finds that, balancing the applicant's interest in raising criticism in respect of the professional performance of some of his colleagues, and the protection of the reputation and rights the lawyers concerned against unfair and disparaging statements, 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 3,000, 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 this part of the application is manifestly ill-founded with the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     As regards the applicant's further submissions, the Commission, in the light of all the material in its possession and in so far as the matters complained of are within its competence, finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.   It follows that this part of the application is likewise inadmissible under Article 27 (Art. 27) 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