Schopfer v. Switzerland (56/1997/840/1046) 20 May 1998: disciplinary penalty imposed on lawyer following criticisms of the judiciary made at a press conference -- proper administration of justice-- balance to be struck between various interests involved, which include public’s right to receive information, requirements of proper administration of justice and dignity of legal profession.

Switzerland – disciplinary penalty imposed on lawyer following criticisms of the judiciary made at a press conference (Articles 12 and 13 of the Statute of the Bar of the Canton of Lucerne)

ARTICLE 10 OF THE CONVENTION

Special status of lawyers gives them central position in administration of justice as intermediaries between public and courts - legitimate to expect them to contribute to proper administration of justice, and thus to maintain public confidence therein.

Applicant first publicly criticized administration of justice in Hochdorf and then exercised a legal remedy which proved effective - conduct scarcely compatible with contribution it is legitimate to expect lawyers to make to maintaining public confidence in judicial authorities.

Freedom of expression secured to lawyers too, who are entitled to comment in public on administration of justice, but their criticism must not overstep certain bounds - balance to be struck between various interests involved, which include public’s right to receive information about questions arising from judicial decisions, requirements of proper administration of justice and dignity of legal profession.

General nature, seriousness and tone of complaints raised in public – applicant was lawyer – criminal proceedings still pending – competent authorities not first applied to via legal channels - modest amount of fine - margin of appreciation not exceeded.

Conclusion: no violation (seven votes to two).

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant, who is a lawyer and former member of the Cantonal Council (Großrat), lives in Root (Canton of Lucerne). At the material time he was an advocate acting as defense counsel for a Mr S, who had been placed in detention pending trial (Untersuchungshaft) on suspicion of committing a number of thefts.

7. On 6 November 1992 Mr S’s wife informed Mr Schöpfer that the two district clerks (Amtsschreiber) of the Hochdorf district authority (Amtsstatthalteramt) had urged her to instruct a different lawyer to defend her husband if he wished to be released.

A. The applicant’s public statements

On 9 November 1992 the applicant then held a press conference in his office in Lucerne at which he declared that at the Hochdorf district authority offices both the laws of the Canton of Lucerne and human rights were flagrantly disregarded, and had been for years .He pointed out that he was speaking to the press because it was his last resort.

B. The disciplinary proceedings against the applicant

14. On 16 November 1992 the Lucerne Bar’s Supervisory Board (Aufsichtsbehörde über die Rechtsanwälte) informed Mr Schöpfer that his conduct raised certain ethical questions, relating in particular to the need for discretion (Zurückhaltung) with regard to pending proceedings and to covert publicity, and asked him what he had to say on the matter.

In a letter of 18 November which he communicated to the press, the applicant replied that he had acted only in the general interest and in that of his client.

15. On 16 November 1992 the Hochdorf prefect had lodged a complaint (Anzeige) with the Supervisory Board and asked for disciplinary proceedings to be brought against Mr Schöpfer. He asserted that by his statements the latter had not only slandered the prefect and his two district clerks but had also been guilty of a serious breach of lawyers’ professional ethics (Standesregeln) by spreading false accusations through the media rather than making use of the available legal remedies.

16. On 21 December 1992 the Supervisory Board brought disciplinary proceedings against the applicant.

On 15 March 1993, pursuant to Article 13 of the Statute of the Bar (Anwaltsgesetz) of the Canton of Lucerne (see paragraph 18 below), it fined him CHF 500 for a breach of professional ethics (Verletzung von Berufs- und Standespflichten).

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

23. Mr Schöpfer alleged that the penalty imposed on him by the Lawyers’ Supervisory Board had breached Article 10 of the Convention.

24. The penalty in issue incontestably amounted to "interference" with the applicant’s exercise of his freedom of expression. The participants in the proceedings agreed that it was "prescribed by law" and pursued a legitimate aim for the purposes of Article 10 § 2, namely maintaining the authority and impartiality of the judiciary. It is apparent from the Supervisory Board’s decision of 15 March 1993 that the penalty in question was imposed on the applicant because, inter alia, he had disparaged all the canton’s judicial authorities (see paragraph 16 above)

The Court, which agrees with the participants on this point, must now determine, therefore, whether the interference was "necessary in a democratic society" in order to achieve that aim.

29. The Court reiterates that the special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. Such a position explains the usual restrictions on the conduct of members of the Bar (see the Casado Coca v. Spain judgment of 24 February 1994, Series A no. 285-A, p. 21, § 54).

Moreover, the Court has already held that the courts - the guarantors of justice, whose role is fundamental in a State based on the rule of law - must enjoy public confidence (see the De Haes and Gijsels v. Belgium judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, p. 234, § 37). Regard being had to the key role of lawyers in this field, it is legitimate to expect them to contribute to the proper administration of justice, and thus to maintain public confidence therein.

30. In the present case Mr Schöpfer held his press conference on 9 November 1992, stating on that occasion, inter alia, that the journalists were his last resort (see paragraph 8 above). On 18 November 1992 he appealed to the Lucerne Court of Appeal against the Hochdorf prefect’s refusal of the application for his client’s release. The Court of Appeal dismissed the appeal for lack of standing, but upheld the complaint that bringing Mr Schöpfer’s client before one of the district clerks had been unlawful. It accordingly ordered its decision to be brought to the attention of the Public Prosecutor’s Office, as the prefect’s supervisory authority (see paragraph 13 above).

31. Thus Mr Schöpfer first publicly criticised the administration of justice in Hochdorf and then exercised a legal remedy which proved effective with regard to the complaint in question. In so doing his conduct was scarcely compatible with the contribution it is legitimate to expect lawyers to make to maintaining public confidence in the judicial authorities.

32. The above finding is reinforced by the seriousness and general nature of the criticisms made by the applicant and the tone in which he chose to make them. For example, he said at the press conference that he was speaking to the journalists because they were his last resort and because at the Hochdorf district authority offices the laws of the Canton of Lucerne and human rights had for years been flagrantly disregarded (see paragraph 8 above). On 13 November 1992 a daily newspaper published a summary of a press release in which Mr Schöpfer had stated that his client’s arrest had breached the Convention and, "in a crude and unacceptable manner",  the cantonal Code of Criminal Procedure" (see paragraph 12 above).

33. It is true that Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see the De Haes and Gijsels judgment, cited above, p. 236, § 48). It also goes without saying that freedom of expression is secured to lawyers too, who are certainly entitled to comment in public on the administration of justice, but their criticism must not overstep certain bounds. In that connection, account must be taken of the need to strike the right balance between the various interests involved, which include the public’s right to receive information about questions arising from judicial decisions, the requirements of the proper administration of justice and the dignity of the legal profession (see the Casado Coca judgment, cited above, p. 21, § 55, and the De Haes and Gijsels judgment, cited above, pp. 233-34, § 37). Because of their direct, continuous contact with their members, the Bar authorities and a country’s courts are in a better position than an international court to determine how, at a given time, the right balance can be struck. That is why they have a certain margin of appreciation in assessing the necessity of an interference in this area, but this margin is subject to European supervision as regards both the relevant rules and the decisions applying them (see the Casado Coca judgment, cited above, pp. 20-21, §§ 50 and 55).

34. The Court notes that Mr Schöpfer – who was a lawyer – had raised in public his complaints on the subject of criminal proceedings which were at that time pending before a criminal court. In addition to the general nature, the seriousness and the tone of the applicant’s assertions, the Court notes that he first held a press conference, claiming that this was his last resort, and only afterwards lodged an appeal before the Lucerne Court of Appeal, which was partly successful. He also omitted to apply to the other supervisory body for the district authority, the Public Prosecutor’s Office, whose ineffectiveness he did not attempt to establish except by means of mere assertions. Having regard also to the modest amount of the fine imposed on the applicant, the Court considers that the authorities did not go beyond their margin of appreciation in punishing Mr Schöpfer. There has accordingly been no breach of Article 10.

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