MEISTER proti Německu



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)