CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 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. 28439/95                       by Alfred STOPP                       against Germany        The European Commission of Human Rights (First Chamber) sitting in private on 15 May 1996, 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                  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 2 March 1995 by Alfred STOPP against Germany and registered on 4 September 1995 under file No. 28439/95;        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 1940, is a German national and resident in Munich.   He is an accountant by profession.        In March 1991 the applicant's mother instructed a law firm, Mr. L. and partners, to represent her in administrative court proceedings, and in particular to advise her on the prospect of success of an appeal to the Federal Administrative Court.   The applicant's mother, having been informed that such an appeal would not have any prospect of success, withdrew the power of attorney.   The law firm claimed fees amounting to about DM 530 which were awarded by the Munich District Court (Amtsgericht) in May 1992.        On 28 August 1992 the applicant requested the Munich Lawyers' Association (Rechtsanwaltskammer) to take disciplinary measures against Mr. L. and partners, charging them and in particular one of the partners, Mr. G., of improper conduct in representing his mother. According to the applicant, that they had, by all means and also in cooperation with the other party, prevented the continuation of the administrative court proceedings concerned, but nevertheless subsequently claimed fees which could not be justified at all, and that they presumably often did so. These submissions were drafted on official paper with the heading of a registered association defending the interests of accountants, presided over by the applicant.   The applicant also announced his intention to publish his statements in the circulars issued by the registered association.        On 19 October 1992 the Munich I Regional Court (Landgericht), upon the request by Mr. L. and partners, issued an interim injunction (einstweilige Verfügung) prohibiting the applicant, as well as the said registered association, from repeating the above statements.        On 17 December 1993, in the proceedings regarding the main action, the Munich Regional Court issued an injunction against the applicant and the association concerned, prohibiting them from repeating the following statements: the plaintiffs, in particular Mr. G., had, in the context of administrative proceedings brought by the applicant's mother against the Munich Municipality, attempted to stop the continuation of these proceedings by all means; that they had, contrary to their client's interests, entered into an agreement with the defendant in order to stop the continuation of the proceedings; that they had claimed fees without having rendered any services; and that they presumably often did so.   In its decision the Regional Court 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 Regional Court, examining the circumstances of the plaintiffs' instructions and their conduct, found that the applicant's allegations, which amounted to an accusation of clients' betrayal (Parteiverrat), were wrong.   The Court also observed that the applicant had failed to justify his statements which deliberately disparaged the plaintiffs and could damage their professional reputation.   Furthermore, the applicant did not have any legitimate interest in imparting false information of the instant kind to the Lawyers' Association, notwithstanding its general competence to examine complaints about lawyers, or to the general public.        On 23 December 1993 the Munich Court of Appeal (Oberlandesgericht) dismissed the defendants' appeal (Berufung).   The Court of Appeal confirmed the reasoning of the Regional Court.        On 11 January 1995 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 injunction prohibiting him from repeating his statements about the allegedly improper conduct of the law firm of Mr. L. and partners.   THE LAW        The applicant complains about the Munich I Regional Court decision of 23 September 1994, as confirmed by the Munich Court of Appeal on 17 December 1993.        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, 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 law firm of Mr. L. and partners, in particular Mr. G., must be weighed against the applicant's freedom to inform the Lawyers' Association and possibly third persons about his accusations of improper conduct and client's betrayal against the law firm concerned.        The Munich I Regional Court, as confirmed by the Munich Court of Appeal considered that the applicant had inter alia accused the law firm of having committed the criminal offence of client's betrayal and thus made statements which were likely to impair their professional reputation.   The impugned decision took into account that the applicant had not only raised these wrong accusations with the Lawyers' Association, but also threatened to render them public. Having regard to all the material, the Regional Court concluded that the statements at issue were untrue and concluded that the applicant therefore had no right to impart such information, in particular no legitimate interest justifying the incriminated statements. In these circumstances, the applicant's constitutional complaint also failed.        The Commission finds that the Regional Court, as confirmed by the Court of Appeal, duly considered the applicant's interest in raising accusations in respect of the professional performance of his mother's previous counsel, and the protection to be afforded to a law firm against false and disparaging statements likely to be repeated in the public.   However, the Court of Appeal attached particular importance to the fact that he had not only made such statements to the public authorities or the lawyers' association, but also intended to publish them to the general public by sending copies of his unproven, and even false, statements of a very serious nature to the media.   In this context, the Commission observes that, at the time of the injunction in question, the applicant's mother, in the context of civil proceedings brought against her, had already been ordered to pay the fees claimed by the law firm.        In these circumstances, there were relevant and sufficient reasons for the prohibitory injunction against the applicant.   It cannot, therefore, be said that the Regional Court, in its decision of 23 September 1994, overstepped the margin of appreciation left to the national authorities.        Accordingly, the interference complained of is justified under Article 10 para. 2 (Art. 10-2) 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)