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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> SCHMIDT v. AUSTRIA - 513/05 [2008] ECHR 628 (17 July 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/628.html Cite as: [2008] ECHR 628

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FIRST SECTION

CASE OF SCHMIDT v. AUSTRIA

(Application no. 513/05)

JUDGMENT

STRASBOURG

17 July 2008

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Schmidt v. Austria,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 26 June 2008,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

“Since the samples taken are not labelled as frozen food (contrary to the attempt to play tricks on my client (Schummelversuch) in the expert opinion underlying the criminal charge), they are not covered by Section 1 § 1 (1) of the FFLD.”

II.  RELEVANT DOMESTIC LAW

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A.  Admissibility

B.  Merits

II.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

“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 and regardless of frontiers. ...

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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A.  Admissibility

B.  Merits

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

B.  Costs and expenses

C.  Default interest

FOR THESE REASONS, THE COURT

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros) in respect of non-pecuniary damage and EUR 3,568.32 (three thousand five hundred and sixty-eight euros thirty-two cents) in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 17 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Rozakis, Vajić and Spielmann is annexed to this judgment.

C.L.R.
S.N.

JOINT DISSENTING OPINION OF JUDGES ROZAKIS, VAJIĆ AND SPIELMANN

“Since the samples taken are not labelled as frozen food (contrary to the attempt to play tricks on my client (Schummelversuch) in the expert opinion underlying the criminal charge), they are not covered by Section 1 § 1 (1) of the FFLD.”

counsel had described the opinion of a judge as “ridiculous”, and Katrami v. Greece, no. 19331/05, 6 December 2007, in which a journalist said in an article that an investigating judge had “broken his oath” and had called him “karagiozis” (§§ 41-42)).

In Amihalachioaie (Amihalachioaie v. Moldova, no. 60115/00, ECHR 2004 III), a case concerning the conviction of a lawyer for criticising a judicial decision, the Court noted that the applicant's comments were made on an issue of general interest in the context of a fierce debate among lawyers and that, even though the remarks could be regarded as showing a certain lack of regard for the Constitutional Court following its decision, they could not be described as grave or as insulting to the judges of the Constitutional Court (§§ 35-36, quoting mutatis mutandis, Skałka v. Poland, no. 43425/98, § 34, 27 May 2003; Perna v. Italy [GC], no. 48898/99, § 47, ECHR 2003-V; and Nikula, cited above, §§ 48 and 52). The Court came to the conclusion that that there was no “pressing social need” to restrict the applicant's freedom of expression and that the national authorities had not furnished “relevant and sufficient” reasons to justify such a restriction. Since the applicant had not gone beyond the bounds of acceptable criticism under Article 10 of the Convention, the interference in issue could not be regarded as having been “necessary in a democratic society” (§ 39).

“173.  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. 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 (see Amihalachioaie v. Moldova, no. 60115/00, § 27, ECHR 2004 III; Nikula v. Finland, cited above, § 45; and Schöpfer v. Switzerland, cited above, pp. 1052-53, §§ 29-30, with further references).

174.  Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. While lawyers too are certainly entitled to comment in public on the administration of justice, their criticism must not overstep certain bounds. Moreover, a lawyer's freedom of expression in the courtroom is not unlimited and certain interests, such as the authority of the judiciary, are important enough to justify restrictions on this right. Nonetheless, even if in principle sentencing is a matter for the national courts, the Court recalls its case-law to the effect that it is only in exceptional circumstances that restriction – even by way of a lenient criminal penalty – of defence counsel's freedom of expression can be accepted as necessary in a democratic society (see Nikula v. Finland, cited above, §§ 54-55).”

In the Nikula case, which concerned the defamation of a prosecutor by defence counsel, the Court noted the distinction made in various Contracting States between the role of the prosecutor as the opponent of the accused, and that of the judge and said that generally speaking, that difference should provide increased protection for statements whereby an accused criticised a prosecutor, as opposed to verbally attacking the judge or the court as a whole (§ 50). The criticism was directed at the prosecution strategy which, in the applicant's view, constituted “role manipulation ... breaching his official duties”. Although some of the terms were inappropriate, her criticism was strictly limited to T.'s performance as the prosecutor in the case against the applicant's client, as distinct from criticism focusing on T.'s general professional or other qualities. In that procedural context, the Court considered that T. had to tolerate very considerable criticism by the applicant in her capacity as defence counsel. (§ 51). It noted that the applicant's submissions were confined to the courtroom, as opposed to criticism of a judge or a prosecutor voiced in, for instance, the media, and that the applicant's criticism of the prosecutor, being of a procedural character, could not amount to a personal insult (§ 52).

In the present case, as in Nikula, the impugned expression – “playing tricks on my client” – was used by the lawyer in his observations with reference to the Vienna Food Agency, a party to the proceedings, which in administrative proceedings in Austria has a function comparable to that of the prosecution in ordinary criminal proceedings. However, contrary to the facts of the Nikula case, it was made in writing, and was not used at a public hearing in a courtroom or in the media (Nikula, cited above, § 52). Thus the negative impact of the remark, if any, was quite limited.