CASE OF SCHÖPFER v. SWITZERLAND
No violation of Art. 10
R. Pekkanen
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 defence 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. 8. 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 (werden sowohl die Luzerner Gesetze als auch die Menschenrechte in höchstem Grade verletzt, und zwar schon seit Jahren). He pointed out that he was speaking to the press because it was his last resort (deshalb bleibt mir nur noch der Weg über die Presse). 9. The following day the daily newspaper Luzerner Neueste Nachrichten (“the LNN”) published the following article (at page 25): “Former Christian Democratic Party (CDP) councillor demands investigation into Hochdorf district authority ‘I won’t let those gentlemen make a fool of me any longer’ Former CDP councillor Alois Schöpfer makes serious accusations against the Hochdorf district authority. ‘I’ve had enough of letting those gentlemen at the Hochdorf district authority make a fool of me’ thundered Alois Schöpfer. ‘So the only recourse left to me is to take the matter to the press.’ The former CDP councillor was prompted to take the unusual step of approaching the public during pending proceedings on account of a case entrusted to him as a lawyer in mid-October. At that time his client had already been in pre-trial detention at the Hochdorf district authority prison for a month. Detained without an arrest warrant The 20 year-old father of a one and a half year-old daughter was arrested on 18 August with his brother for the theft of car radios and clothes, and released after admitting the offences. When, on 15 September, he went to the Lucerne cantonal police to ask how his brother was, he was again immediately arrested. ‘When I enquired at the Hochdorf district authority about the arrest warrant, I was told that the order had been issued to him orally’ said Alois Schöpfer, who sees the conduct of the police as a clear breach of the cantonal Code of Criminal Procedure, Article 82 of which provides: ‘The arrest shall be carried out by the police, duly authorised by a written warrant of arrest.’ When these accusations were put to him, the Hochdorf prefect [Mr H. B.] was giving nothing away. ‘Where I’m in charge nobody is arrested without a written arrest warrant’, he said. ‘I cannot say any more about a pending case.’ On the other hand, Alois Schöpfer, who was asked by the accused’s wife to defend her husband, will not remain silent any longer: ‘The wife came to me because the lawyer appointed under the legal aid scheme had still not contacted his client even though he had been in pre-trial detention for six weeks.’ Schöpfer immediately contacted the officially appointed counsel who handed the case over to him. However, the Hochdorf district authority did not want Schöpfer to take over as defence counsel under the legal aid scheme and refused his request on 29 October on the ground that there were no reasons to dismiss the lawyer to whom the case had been assigned until then. He was, however, free to represent his client on a private basis. Schöpfer as the ground for detention? The last straw for Alois Schöpfer came when the accused’s wife informed him last Friday that [T.B.] and [B.B.], the two district clerks, had advised her not to keep him on the case. ‘They told me’ she confirmed for the LNN, ‘that my husband would not be released as long as Alois Schöpfer remained his defence counsel.’ But [T.B.] denied any involvement: ‘That’s ridiculous. I never said anything like that. [B.B.] can confirm that. He was present when I spoke with the man’s wife.’ Alois Schöpfer will not let the matter drop: ‘I demand the immediate resignation of the prefect and the district clerks and a thorough investigation of the case by an impartial commission of inquiry from outside the canton.’” In a box inside the article was the following text: “Accusations It is not the first time that serious charges have been levelled against the Hochdorf district authority. Prefect [H.B.] was previously prosecuted in connection with the conviction of [H.S.], the Rothenburg debt collection officer [Betreibungsbeamter]. He was fined 400 francs by the Lucerne District Court for disclosure of official secrets. Although the Court of Appeal also found that the objective elements of the offence had been made out, [H.B.] was acquitted on appeal.” The article was illustrated by two photographs, one showing the Hochdorf district authority building and the other Prefect H.B. with the caption: “Where I’m in charge nobody is arrested without a written arrest warrant (Bei mir wird niemand ohne schriftlichen Haftbefehl festgehalten).” 10. Another daily newspaper, the Luzerner Zeitung, also published, on 10 November 1992, an article on the press conference under the title: “Young man arrested without a warrant? Lucerne lawyer accuses Hochdorf district authority of breaking the law (Junger Mann ohne Haftbefehl verhaftet? Luzerner Anwalt wirft Amtsstatthalteramt Hochdorf Rechtsverletzungen vor).” 11. On 10 November 1992 the public prosecutor’s office (Staatsanwaltschaft) of the Canton of Lucerne issued a reply to the effect that the accused person concerned had been arrested in accordance with the law, and that the applicant had not filed an appeal against the refusal to allow him to take over as the officially appointed defence counsel. This reply was published in the press on 11 November 1992. 12. On 13 November 1992 the Luzerner Zeitung published a summary of a press communiqué issued by the applicant in reply to the public prosecutor’s statement. According to Mr Schöpfer, S.’s arrest had breached both the Convention and – “in a crude and unacceptable manner (in absolut grober und nicht mehr zu verantwortender Weise)” – the cantonal Code of Criminal Procedure. The applicant also quoted the following passage from a letter he had received from another lawyer: “The situation in Hochdorf is far from satisfactory... What makes it even worse is the fact that the judicial authorities know what is going on in Hochdorf and even make indirect allusions to the situation.” In conclusion, Mr Schöpfer called on the Court of Appeal and the Cantonal Council to look into the case. 13. On 15 October, 3 November and 13 November 1992 the applicant had lodged applications for the release of Mr S. (Haftentlassungsgesuch), which the Hochdorf prefect refused on 19 October, 5 November and 16 November 1992 respectively. Mr Schöpfer lodged an appeal (Rekurs) against the last of these decisions. This was dismissed by the Court of Appeal (Obergericht) of the Canton of Lucerne on 30 November 1992, on the ground, among others, that the prefect had subsequently validly extended Mr S.’s pre-trial detention, so that Mr S. no longer had standing to bring an action challenging the conditions of his arrest. It noted, however, that after his arrest Mr S. should have been brought, not before a district clerk, but before the prefect himself, the only person who could be considered a judge or other officer for the purposes of Article 5 § 3 of the Convention. It therefore ordered that its decision should be brought to the attention of the public prosecutor’s office, which was the prefect’s supervisory authority (Aufsichtsbehörde). 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 500 Swiss francs (CHF) for a breach of professional ethics (Verletzung von Berufs- und Standespflichten). In its decision the Supervisory Board observed in particular that the applicant had omitted to refer his complaints – which were serious – in the first place to the public prosecutor’s office or the Court of Appeal, which were the relevant supervisory bodies for the district authority. He had therefore failed to observe the discretion which lawyers were required to maintain, in public, with regard to pending proceedings. In addition, he had engaged in covert publicity (versteckte Reklame) and cheap showmanship (Effekthascherei), thus demonstrating that he was more concerned about his own public profile than about the merits of the case. In any event, lawyers’ statements to the press always had to be not only of real public interest (reelles öffentliches Interesse) but also objective and moderate in tone (objektiv in der Darstellung und sachlich im Ton). But the tone of a number of passages in Mr Schöpfer’s statements to the press left something to be desired. For example he had said: “I won’t let those gentlemen make a fool of me any longer” and “I demand … a thorough investigation of the case by an impartial commission of inquiry from outside the canton” and also “So the only recourse left to me is to take the matter to the press.” This last statement was not even true, since at that time Mr Schöpfer had not even applied to the relevant supervisory bodies for the district authority, nor had he tried exercising the ordinary legal remedies. He had thus disparaged not only the Hochdorf district authority but all the canton’s judicial authorities, which was incompatible with a lawyer’s professional ethics. 17. The applicant lodged a public-law appeal against the above decision. This was dismissed by the Federal Court on 21 April 1994. It observed that lawyers enjoyed considerable freedom to criticise the judicial authorities, provided that this was done according to the correct procedures, and in the first place in the course of representing and defending their clients. When, however, a lawyer appealed to public opinion, he was under a duty, like any other person employed in the service of justice, to refrain from any conduct inconducive to the proper administration thereof. Article 10 § 2 of the Convention also enunciated the principle that interference could be justified if its purpose was to maintain the authority and impartiality of the judiciary. Admittedly, there might be circumstances in which the public interest required alleged violations of constitutional or human rights to be made public. In order to determine whether that was the case, it was necessary to ascertain how obvious the alleged violations were, whether pending proceedings were likely to be influenced, whether the available remedies had been exercised and in what form the criticism had been made. In the instant case Mr Schöpfer had been punished not so much for denouncing human rights violations as for the way in which he had done so. When considering the case the Supervisory Board had indeed taken into account the fact that one of the complaints raised by the applicant, concerning the fact that Mr S. had been brought before a district clerk rather than the prefect, had subsequently been upheld by the Court of Appeal. However, Mr Schöpfer’s other criticisms – which were likely to influence pending proceedings – had been found by the Supervisory Board to be unjustified. Furthermore, the Board had ruled that the applicant had not employed the right tone in his criticism and that he had made untrue allegations. It had given sufficient grounds for its decision and the applicant had not adduced any convincing counter-arguments. 18. Article 10 of the Statute of the Bar (Anwaltsgesetz) of the Canton of Lucerne establishes a Lawyers’ Supervisory Board (Aufsichtsbehörde über die Anwälte) whose members – two judges of the Court of Appeal, one administrative court judge and two lawyers – are appointed by the Court of Appeal for four years. Under Article 12 § 1 of the Statute the Board has jurisdiction to investigate lawyers’ breaches of professional ethics (Berufs- und Standespflichten) and may impose disciplinary penalties. Under Article 13 these range from a reprimand (Verweis) to temporary or permanent disbarment, with fines of up to CHF 5,000 as intermediate penalties.