CASE OF SCHMIDT v. AUSTRIA
Violation of Art. 6-1;No violation of Art. 10;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant, who is living in Vienna, is a practising lawyer by profession. 5. The applicant represented a commercial manager in administrative criminal proceedings before the Eisenstadt Municipal Office for alleged violations of the Frozen Food Labelling Decree (Tiefkühlkostkennzeichnungsverordnung – “the FFLD”). Referring to charges brought by the Vienna Food Inspection Agency (Lebensmitteluntersuchungsanstalt) concerning two samples of turkey meat, the applicant on 13 March 1996 filed observations, stating that: “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.” 6. On 11 June 1996 the Vienna Municipal Office requested the Vienna Bar Association to institute proceedings against the applicant, claiming that his serious and unfounded allegations had tarnished the Vienna Food Inspection Agency’s reputation and were incompatible with a lawyer’s professional duties. 7. Subsequently, on 26 June 1996, the Vienna Bar Association opened disciplinary proceedings against the applicant. 8. On 3 July 1997 he filed observations, submitting that the Vienna Food Inspection Agency had repeatedly applied an extensive interpretation of the provisions in issue. By suggesting that the authority had attempted to play tricks on his client, he had merely sought to express his doubts as to the authority’s legal opinion “with a nod and a wink”, even though there may have been sufficient grounds for instituting proceedings for abuse of authority. 9. By decision of 24 March 1999 the Disciplinary Council (Disziplinarrat) of the Vienna Bar Association discontinued the proceedings. It found that, while the applicant’s allegations may have infringed the profession’s honour and reputation, his statements disclosed only a minor degree of culpability, as they had apparently been made in the context of a heated exchange between him and the authority concerned. 10. On 7 September 1999 the Bar Association prosecutor (Kammeranwalt) appealed. He asserted that the expression “attempt to play tricks on my client”, used by the applicant, insinuated that the authority had been acting fraudulently. 11. Subsequently, on 16 September 1999, the applicant filed observations in which he repeated his defence, namely that his remarks were not meant to be taken literally. He had resorted to innuendo, alluding to an allegedly unlawful practice on the part of the Vienna Food Inspection Agency. He alleged in particular that the latter used its position to pursue its aims in the field of food inspection policy. 12. On 14 February 2000 the Appeals Board (Oberste Berufungs- und Disziplinarkommission) granted the prosecutor’s appeal. It quashed the decision of 24 March 1999 and remitted the case to the Disciplinary Council. 13. Having held an oral hearing, at which the applicant was present, the Disciplinary Council on 6 September 2000 convicted the applicant under Section 9 of the Lawyers Act (Rechtsanwaltsordnung) and, relying on Section 16 of the Disciplinary Act (Disziplinarstatut), issued a written reprimand. Moreover, it ordered the applicant to pay the costs of the proceedings. 14. The Disciplinary Council held that the applicant had used a defamatory and disparaging expression. Pursuant to Section 9 of the Lawyers Act a lawyer, when defending the interests of his client, was entitled to address the perceived incorrectness of any official document in an appropriate manner. The applicant’s statement had transgressed the limits of acceptable conduct. In the submissions at issue he had failed to indicate any facts or circumstances which would have justified the use of the expression “attempt to play tricks on my client”. The applicant would have been free to institute proceedings for abuse of authority (Amtsmißbrauch), had there been grounds for such a suspicion. In conclusion, the Disciplinary Council found that the applicant had infringed the profession’s honour and reputation. 15. On 15 December 2000 the applicant lodged an appeal against the decision and on 17 January 2001 the Bar Association prosecutor submitted his observations in reply. 16. Following another oral hearing, the Appeals Board dismissed the applicant’s appeal on 7 May 2001. It confirmed that the applicant had transgressed the limits laid down in Section 9 of the Lawyers Act. The impugned statement had been defamatory and had disparaged the staff of the Vienna Food Inspection Agency. Since that statement had been made in writing, it had been well-considered. Therefore, it could not be said that the applicant had acted with a minor degree of culpability. 17. On 2 August 2001 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained, inter alia, that there had been a violation of Article 10 of the Convention, submitting that the Food Inspection Agency’s charges against his client had been objectively wrong. By using the impugned expression, he had merely sought to emphasise his argument. 18. By decision of 21 June 2004 the Constitutional Court dismissed the applicant’s complaint. It found that the interference complained of had served the aim of maintaining the authority and impartiality of the judiciary and that the disciplinary authorities had duly balanced the applicant’s rights under the Convention against the profession’s interest in safeguarding its standards of professional duties. Hence, they had given ample reasons why there had been no violation of the applicant’s right to freedom of expression. The decision was served on the applicant on 23 July 2004. 19. Section 9 of the Austrian Lawyers Act (Rechtsanwaltsordnung) regulates the professional duties incumbent on lawyers. When representing a client, a lawyer is entitled to make use of any means of defence which are not contrary to his mandate, his conscience or the law. 20. According to section 1 (1) of the Disciplinary Act (Disziplinarstatut), a lawyer who acts in breach of his/her professional duties or, through his/her conduct within or outside his/her professional activity, infringes the profession’s honour or reputation, is deemed to have committed a disciplinary offence which must be dealt with by the Disciplinary Council. 21. Section 16 (1) of the Disciplinary Act, in the version applicable at the material time, provided for the following disciplinary penalties: a written reprimand, a fine of up to 45,000 euros, a prohibition on practising as a lawyer for a period not exceeding one year and removal from the Bar roll.