WINGERTER v. GERMANY
Inadmissible
Ireneu Cabral Barreto
The applicant, Norbert Wingerter, is a German national, who was born in 1938 and lives in Heilbronn. The respondent Government were represented by Mr Klaus Stoltenberg, Ministerialdirigent. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 September 1996 the Stuttgart District Disciplinary Court for Lawyers (Anwaltsgericht) issued a reprimand (Warnung) against the applicant for having violated professional rules (anwaltliche Pflichtverletzung). In its reasoning, the Disciplinary Court noted that in 1994 the applicant had assisted Mr K., a foreigner, who had been accused in criminal proceedings in Mannheim, of having acted as an accessory to forgery, and that this trial had resulted in an acquittal for lack of jurisdiction of the German courts. In October 1994 the applicant had appealed against the bill of costs (Kostenfestsetzungbeschluss) as far as the fixing of his fees, to be borne by the Treasury, was concerned. In his appeal, the applicant, objecting to a refusal to reimburse his travelling expenses from Heilbronn to Mannheim, had argued that the intervention of a lawyer outside of Mannheim had been necessary. According to him, “the Mannheim judiciary had not been able to cope with the difficulty of the case. From the very beginning, it had been obvious that the accused had to be acquitted. Nevertheless, the public prosecutor had applied for a penal order and the court had issued one. The quality of the Mannheim lawyers is not superior to the quality of the judges and public prosecutors. ... It had been necessary to appoint a non-Mannheim lawyer to have justice done. Had the accused been assisted by a Mannheim lawyer, the penal order would have been undoubtedly been confirmed at the trial.” In March 1995, in the course of investigations brought against him, the applicant had submitted that this reasoning had been necessary to argue his appeal. He had added that his opinion on the quality of Mannheim judges, public prosecutors and lawyers was correct, as any first-semester law student would have known that the charge against his client was unfounded. Moreover, he had evoked the past of a Mannheim judge and two Mannheim lawyers under the Nazi regime. In particular, regarding judge W., he had referred to judgments rendered in 1944, convicting persons for having criticised the treatment of Jews or for failure to differentiate, in their charitable work, between their own people and Jews. Regarding lawyer B., he had mentioned a statement, to be found in Mr. B’s doctoral thesis, according to which a medical practitioner keeping friendship with a Jew violated the honour of the profession. According to him, their merits under the Nazi regime had contributed to their professional success after 1945. The Disciplinary Court considered that the applicant had thereby violated his professional duties within the meaning of section 43 a (3) of the Federal Regulations for Lawyers (Bundesrechtsanwaltsordnung). The Disciplinary Court examined the applicant’s above-mentioned statements in the light of these principles and found that the course of the criminal proceedings against Mr. K. had not been correct and could have justified even harsh criticism of the officials concerned. However, the applicant’s general attack charging the Mannheim judiciary of complete incompetence was unjustified and amounted to a deliberate disparagement of all members of the Mannheim judiciary on criminal matters. These considerations applied even more to his subsequent statements that in Mannheim anti-Semitic and Nazi judges had made a career because of their work or their attitude under the Nazi regime. Such statements had been all the more disproportionate as the claim for reimbursement had amounted to a mere 203 German marks (DEM). On 15 March 1997 the Baden-Württemberg Disciplinary Court of Appeal (Anwaltsgerichtshof), following a hearing, dismissed the applicant’s appeal and the Court ordered that the case should not be subject to an appeal on points of law. In its decision, the Disciplinary Court of Appeal considered that the applicant had been entitled to argue that his assistance in the criminal proceedings at issue had been necessary and that his qualifications were superior to those of Mannheim lawyers. Moreover, the allegation that ‘the quality of Mannheim lawyers was not superior to the quality of Mannheim judges and public prosecutors’ could have been read as applying only to those judges and prosecutors specifically involved in the procedure against Mr. K. The context in which the applicant made his statements shows, however, that that allegation was intended to characterise all Mannheim judges, public prosecutors and lawyers as incapable of recognising or remedying obvious legal errors. This assessment was confirmed in the applicant’s further submissions of March 1995. According to the Disciplinary Court of Appeal, the wholesale allegation that the Mannheim judges, public prosecutor’s and lawyers were incompetent in legal matters was disparaging and made without good cause. The applicant had no reason or justification to disparage the legal skills of all Mannheim judges, public prosecutors and lawyers. Even the obvious legal errors committed in the criminal proceedings against Mr K. could not justify disparaging whole groups of professionals. The insulting remarks made by the applicant had not been necessary to justify the need for having recourse to a non-local lawyer. The applicant’s submissions of March 1995 did not, in the Disciplinary Court of Appeal’s view, constitute a further breach of professional duties. Rather, the applicant had acted for the protection of his interests in the disciplinary proceedings against him. Moreover, to the extent that he had referred to the Nazi past of certain Mannheim lawyers and of a judge, he had not, in the Court of Appeal’s view, made a general statement. On 26 January 1998 the Lawyers’ Senate (Senat für Anwaltssachen) at the Federal Court of Justice dismissed the applicant’s request for leave to appeal on points of law. On 11 March 1998 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. According to section 43 of the Federal Regulations for Lawyers, a lawyer has to practise his profession conscientiously, and, whether in pursuit of his profession or otherwise, has to prove himself worthy of the respect and trust which his position requires. As one of the basic duties, section 43a(3) provides that in his professional conduct, a lawyer has to respect the duty of objectivity (Sachlichkeit). Such conduct lacks objectivity if it involves a deliberate dissemination of untrue or otherwise disparaging statements which find no ground in the behaviour of other persons involved in the proceedings or in the course of the proceedings. Section 113(1) of the Federal Regulations provides that disciplinary measures shall be taken against a lawyer who is liable of a breach of duties as defined by the Regulations or the rules on professional conduct (Berufsordnung). According to section 114(1), the possible disciplinary measures are: (1) a warning; (2) a reprimand; (3) a fine not exceeding DEM 50,000; (4) a temporary prohibition on practising as counsel in certain legal fields; or (5) a permanent exclusion from the Bar. The disciplinary measures of reprimand and fine may be imposed simultaneously (section 114(2)).