CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 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. 25063/94                       by Horst TRIEFLINGER                       against Germany        The European Commission of Human Rights (First Chamber) sitting in private on 6 September 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                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC              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 8 August 1994 by Horst TRIEFLINGER against Germany and registered on 1 September 1994 under file No. 25063/94;        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, as they have been submitted by the applicant, may be summarised as follows.        The applicant, born in 1940, is a German national and resident in Frankfurt/Main.   He is a business management consultant by profession.        In 1985/86 the applicant was involved in several labour court proceedings against his previous employer.   The court proceedings concerning his dismissal terminated with a settlement which provided for the payment of a severance allowance of DM 55,000.   In these proceedings the applicant was represented by counsel Mr. T.        In December 1986 the applicant requested the Frankfurt/Main Lawyers' Association (Rechtsanwaltskammer) to take disciplinary measures against Mr. T., charging him with betrayal (Parteiverrat) in the context of the above labour court proceedings.   The applicant considered that Mr. T. had wrongly advised him upon the conclusion of the settlement with his employer.   His request remained unsuccessful.        In 1987 the applicant filed an action against Mr. T. claiming compensation for negligence in the context of the above labour court proceedings.   His action was dismissed by the Frankfurt/Main Regional Court (Landgericht) on 7 January 1988, as confirmed by the Frankfurt/Main Court of Appeal (Oberlandesgericht) on 14 July 1988.        On 16 December 1988 the applicant laid a criminal information with the Frankfurt/Main Prosecutor's Office (Staatsanwaltschaft), charging Mr. T. with client's betrayal (Parteiverrat) to his disadvantage in the context of the above labour court proceedings. The applicant sent a copy of these submissions to the editor of a newspaper.   The preliminary investigations against Mr. T. were discontinued for lack of suspicion in February 1989.   Following the applicant's appeal, the Prosecutor's Office reopened the investigation proceedings, which were finally discontinued in February 1990.   The applicant lodged an appeal with the Director of Public Prosecution (Generalstaatsanwalt) and sent copies thereof to several editors of newspapers.   The appeal was dismissed on 17 April 1990.   The applicant also complained about the decision to discontinue the investigation proceedings with the Hessen Minister of the Interior (Innenminister), and sent copies of these submissions to the press.        As from March 1989 the applicant also renewed his requests with the Lawyers' Association that disciplinary measures be taken against Mr. T.        On 27 September 1990 the Frankfurt/Main Regional Court dismissed Mr. T.'s request for an injunction prohibiting the applicant from stating that Mr. T. had betrayed him in the context of court proceedings with his former employer.   The Regional Court considered that there was no right to a prohibitory injunction regarding complaints with a public authority or a lawyers' association about alleged grievances.   The incriminated statement of a suspicion could not be objected to.        On 20 February 1992 the Frankfurt/Main Court of Appeal, upon Mr. T.'s appeal, prohibited the applicant from telling third persons that Mr. T. had betrayed him in the context of court proceedings with his former employer.        The Court of Appeal, in its reasoning, referred to the relevant provisions of the German Civil Code (Bürgerliches Gesetzbuch) on the right to an injunction in cases of tort (unerlaubte Handlung).   The Court of Appeal found that the applicant had, in the past, accused Mr. T. of having committed the criminal offence of client's betrayal in that Mr. T. had allegedly deliberately served the interests of the opponent party in the above labour court proceedings and thereby caused damage to the applicant, and that he had continued to do so at the hearing.   The Court of Appeal considered that these statements impaired Mr. T.'s reputation as a lawyer.        According to the Court of Appeal, the question to what extent the applicant could raise such accusations in the context of judicial proceedings was irrelevant on the ground that he had also informed the public in sending copies of his various submissions to the media.   The Court of Appeal, having taken evidence, found that the applicant's allegations were untrue and that he therefore had no right to impart such information.   The Court of Appeal continued that even assuming that the applicant's allegations had not been refuted, the right to freedom of expression did not cover, as a rule, a right to impart insulting and disparaging allegations outside judicial proceedings. Moreover, there was no public interest in the matter justifying the incriminated statements which seriously impaired Mr. T.'s professional reputation.   In this context, the Court of Appeal noted that there was no indication that the applicant's allegations had been taken up by the newspapers concerned.        On 19 May 1994 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde).   COMPLAINTS        The applicant complains under Article 10 of the Convention about the Court of Appeal's decision of 20 February 1992 prohibiting him from telling third persons that Mr. T., in his position as counsel, had betrayed him in the context of the labour court proceedings against his former employer.   THE LAW        The applicant complains about the Court of Appeal's decision of 20 February 1992 prohibiting him from telling third persons that Mr. T., in his position as counsel, had betrayed him in the context of the labour court proceedings against his former employer.   He invokes Article 10 (Art. 10) of the Convention.        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 the impugned measure was an interference with the applicant's exercise of his freedom of expression.   The fact that, in a given case, that freedom is exercised other than in the discussion of matters of public interests does not deprive it of the protection of Article 10 (Art. 10) (Eur. Court H.R., Jacubowski judgment of 23 June 1994, Series A no. 291-A, p. 13, para. 25).   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 interference was "prescribed by law", namely the relevant provisions of the Civil Code.   It also pursued a legitimate aim under the Convention, i.e. "the protection of the reputation or rights of others".   It remains to be ascertained whether the interference can be regarded as having been "necessary in a democratic society".        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 and to what extent an interference is necessary, but this margin goes hand in hand with a European supervision.   Thus the measures taken at national level must be justifiable in principle and proportionate (cf. European Court H.R., Observer and Guardian judgment of 26 November 1991, Series A no. 216 pp. 29-30, para. 59; Jacubowski judgment, loc. cit., p. 14, para. 26).        In the present case, the requirements of protecting the reputation and rights of others, namely of the lawyer Mr. T., must be weighed against the applicant's freedom to inform third persons about his accusations of client's betrayal against Mr. T.        The Frankfurt/Main Court of Appeal considered that the applicant had accused Mr. T. of having committed the criminal offence of client's betrayal and thus made statements which impaired Mr. T.'s reputation as a lawyer.   Its judgment was based on the fact that the applicant had not only raised these accusations in the context of judicial proceedings, but also informed the public by sending copies of his various submissions to the media.   The Court of Appeal, having taken evidence, found that the applicant's allegations were untrue and concluded that he therefore had no right to impart such information. In the alternative, assuming that the applicant's allegations had not been refuted, the Court of Appeal observed that the right to freedom of expression did not cover, as a rule, a right to impart insulting and disparaging allegations outside judicial proceedings, and that there was no public interest in the matter justifying the incriminated statements which seriously impaired Mr. T.'s professional reputation. In these circumstances, the applicant's constitutional complaint remained unsuccessful.        The Commission finds that the Court of Appeal took into account the applicant's interest in raising accusations in respect of the professional performance of his previous counsel.   However, the Court of Appeal attached particular importance to the fact that he had not only done so with public authorities or the lawyers' association, but also aimed at informing the general public in sending copies of his unproven, or even false, statements of a very serious nature to the media.        In this context, the Commission observes that, at the time of the Court of Appeal's judgment prohibiting the applicant from further making these statements, his civil action against Mr. T. had been dismissed, and Public Prosecutor's Office had finally discontinued the preliminary investigations against Mr. T. for lack of suspicion.        In these circumstances, there were relevant and sufficient reasons for the prohibitory injunction against the applicant.   It cannot, therefore, be said that the Court of Appeal, in its decision of 20 February 1992, overstepped the margin of appreciation left to the national authorities.        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 remaining part of 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)