G.F. v. SWITZERLAND

THE LAW

1. The applicant alleges a violation of Article 6 (Art. 6) of the

Convention which provides, so far as relevant, as follows:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law.

...

3. Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language which he understands

and in detail, of the nature and cause of the accusation against

him;

b. to have adequate time and facilities for the preparation of

his defence;

c. to defend himself in person or through legal assistance of his

own choosing ..."

The Government maintain that Article 6 (Art. 6) of the Convention

is not applicable to the proceedings which led to the imposition of a

disciplinary fine on the applicant. The applicant disagrees.

In order to determine whether Article 6 (Art. 6) of the

Convention is applicable under its "criminal" head to the proceedings

at issue, the Commission will have regard to the three criteria laid

down in the Convention organs' case-law (cf. Eur. Court H.R., Ravnsborg

judgment of 23 March 1994, Series A no. 283-B, p. 28, para. 30, with

further references).

As to the legal classification of the offence at issue under

Swiss law, the Government contend that the 1866 Law expressly refers

to offences it governs as disciplinary. In the Government's view, the

disciplinary character of the offence is also confirmed by an

historical interpretation of the 1866 Law and by the fact that fines

under the 1866 Law are not included among the punishments referred to

in the Canton of Zurich Act on Cantonal Criminal Law and the Execution

of Penalties and Measures (Gesetz über das kantonale Strafrecht und den

Vollzug von Strafen und Massnahmen).

The applicant argues that in the table of contents of the

systematic edition of the Canton of Zurich legislation, known as the

"Zurich Loose-Leaf Collection" (Zürcher Loseblattsammlung) the 1866 Law

is listed, at Chapter 31, under the heading of "Criminal Law". He also

submits that in the report of 5 January 1994 on the draft amendment of

the 1866 Law the Canton of Zurich Government pleaded, with reference

to the case-law of the European Court of Human Rights, for the

possibility of having disciplinary sanctions under the 1866 Law

judicially reviewed.

The Commission notes that the 1866 Law refers the fine to the

disciplinary field.

On the other hand, some of the factors (those invoked by the

applicant, the fact that the 1866 Law refers on several occasions to

the Criminal Code and the Code of Criminal Procedure) might be

considered as indicative of a criminal classification of fines under

Swiss law.

In these circumstances the formal classification of the offence

under Swiss law is open to different interpretations. It cannot be

clearly established whether the relevant provisions concerning this

kind of offences belong or do not belong to criminal law under the

domestic system (cf. the above mentioned Ravnsborg judgment, pp. 28-30,

paras. 31-33).

The Commission has therefore to turn to the second criterion,

which is of more weight, namely the very nature of the offence.

In the Government's view under this aspect the present case, like

the Ravnsborg case (see the above mentioned Ravnsborg judgment, p. 30,

para. 34), falls outside the ambit of Article 6 of the Convention since

rules enabling a court to sanction disorderly conduct in proceedings

before it and the sanctions imposed under such rules derive from the

necessary power of a court to ensure the proper and orderly functioning

of its own proceedings.

The applicant contends that his case is different from the

Ravnsborg case in that (i) he did not insult members of the Canton of

Zurich Court of Appeal but merely brought to their knowledge statements

made by the other side that were closely related to the subject matter

of the proceedings, sharply criticising at the same time the other

side's conduct in the proceedings, and (ii) the 1866 Law refers to

every citizen, irrespective of the authority he or she has to deal

with. In the applicant's view its provisions therefore potentially

attain the whole population which brings it under the heading of

criminal law.

The Commission notes that the 1866 Law applies, inter alia, to

private individuals who communicate orally or in writing with

administrative and judicial authorities. In this respect the present

case is similar to the case of Ravnsborg in that the relevant law

applied only to disciplinary fault (in the applicant's case violation

of the propriety required for official proceedings by good conduct)

committed by a person communicating orally or in writing with the

authority concerned, but not to such statements made in a different

context or by a person falling outside the circle of persons covered

by that provision.

Furthermore, the decision to sanction the applicant was taken of

its own accord by the same judicial authority as that in charge of the

proceedings in the course of which the misconduct reproached to the

applicant occurred.

The Commission therefore considers that the disciplinary offence,

for which the applicant was fined, was not of an inherently "criminal"

nature such as to bring the case within the ambit of Article 6

(Art. 6) of the Convention.

As to the nature and degree of severity of the penalty, the

Government submit that the possibility of converting the fine at issue

into a prison sentence does not in itself justify its classification

as criminal. Nor does, in their view, the amount of the fine which was

actually imposed on the applicant.

The applicant argues that in this respect his case is similar to

that of Öztürk (cf. Eur. Court H.R., Öztürk judgment of 21 February

1984, Series A no. 73, p. 20, para. 53). He contends that the aim of

the fine under the 1866 Law is both to punish and deter people from

engaging in proscribed behaviour. It serves both public interests

(those of the judiciary) and private interests (those of the parties

to the proceedings). The applicant further points out that the

possibility of converting the fine into a prison sentence proves its

criminal character.

The applicant also maintains, with reference to the case of

McMichael (cf. Eur. Court H.R., McMichael judgment of 24 February 1995,

Series A no. 307-B), that in determining the applicability of Article 6

(Art. 6) of the Convention not only the severity of the sanction must

be considered but also the severity of the interference with the rights

protected by the Convention, namely the freedom of expression (of a

lawyer before a court) which was at stake in the present case.

The Commission recalls that pursuant to Section 328 of the Canton

of Zurich Code of Criminal Procedure cantonal authorities are entitled

to impose maximum fines of 1,000 SFr, and the applicant was actually

fined 200 SFr. The 1866 Law does not provide for imprisonment as an

alternative sanction. A judge can convert the fine into a prison

sentence, but only if the perpetrator of the offence failed to pay it

or work it off within a certain time limit.

With regard to the above mentioned Ravnsborg judgment (pp. 30-31,

para. 35) the Commission considers that the fact that the fine could,

in limited circumstances and in separate proceedings, be converted into

a term of imprisonment cannot warrant its classification as criminal.

It finds that neither the amount of the fine imposed on the applicant

nor the alleged severity of the interference with his right to freedom

of expression can change this position.

In these circumstances the Commission considers that Article 6

(Art. 6) of the Convention is not applicable to the proceedings by

which the applicant was fined under the 1866 Law.

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant further complains under Article 10 (Art. 10) of the

Convention that the fine imposed on him by the Canton of Zurich Court

of Appeal infringed his right to freedom of expression.

Article 10 (Art. 10) of the Convention, as far as relevant,

provides:

"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 ...

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, ... for the protection

of the reputation or rights of others, ... or for maintaining the

authority ... of the judiciary."

The Government maintain, with reference to the Commission's case-

law (see, e.g., No. 10148/82, Dec. 14.3.85, D.R. 42 p. 121), that the

applicant has failed to comply with the requirement as to the

exhaustion of domestic remedies since in his public law appeal he

mentioned the freedom of expression only once in passing.

Subsidiarily, the Government argue that the interference with the

applicant's right to freedom of expression complied with Article 10

para. 2 (Art. 10-2) of the Convention since it was necessary for the

protection of the reputation of the other party's lawyer and for

maintaining the authority of the judiciary.

The applicant refers to particular expressions contained in his

public law appeal and alleges that he has thereby submitted the claim

he is now bringing before the Commission. He considers that there was

no pressing social need for the restriction on his freedom of

expression.

The Commission does not consider it necessary to examine whether

the applicant submitted his complaint of a violation of his right to

freedom of expression to the Federal Court in a way which is compatible

with the requirements of Article 26 (Art. 26) of the Convention since

this complaint is in any event inadmissible for the following reasons.

The Government agree with the applicant that the disciplinary

fine at issue constituted an interference with the exercise of the

applicant's freedom of expression. The Commission recalls that such

an interference is in breach of Article 10 (Art. 10) of the Convention,

unless it is justified under paragraph 2 of Article 10 (Art. 10-2),

i.e. it must be "prescribed by law", have an aim that is legitimate

under Article 10 para. 2 (Art. 10-2) and be "necessary in a democratic

society".

The Commission notes that the legal basis of the interference

under consideration was the 1866 Law in combination with Article 131

of the Canton of Zurich Judiciary Act. The Commission finds that these

provisions were accessible, and the disciplinary measure complained of

was also foreseeable under the relevant legislation (cf. mutatis

mutandis, Eur. Court H.R., Barthold judgment of 25 March 1985, Series

A no. 90, pp. 21-23, paras. 45-48). The sanction issued against the

applicant can, therefore, be considered as "prescribed by law" for the

purposes of Article 10 para. 2 (Art. 10-2) of the Convention.

Moreover, the decision complained of aimed to protect "the

reputation or rights of others", namely the other party's lawyer who

had been criticised by the applicant, and, through the application of

rules of decorum to representatives of the parties, to maintain "the

authority of the judiciary". These are legitimate aims under

Article 10 para. 2 (Art. 10-2) of the Convention.

It remains to be determined whether the interference complained

of was "necessary in a democratic society" and proportionate to the

legitimate aims pursued.

The Commission recalls that the adjective "necessary" within the

meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a

"pressing social need". The Contracting States have a certain margin

of appreciation in assessing whether such a need exists, but it goes

hand in hand with a European supervision. The Convention organs' task

is to look at the interference complained of in the light of the case

as a whole and determine whether it was "proportionate to the

legitimate aim pursued" and whether the reasons adduced by the national

authorities to justify it are "relevant and sufficient"(cf. European

Court H.R., Observer and Guardian judgment of 26 November 1991,

Series A no. 216, pp. 29-30, para. 59).

In its judgment of 25 September 1991 the Federal Court noted that

the expressions used by the applicant were incompatible with the

required propriety since they were liable to give rise to an impression

of contempt and even of offensive belittling of the other side's

lawyer. In the Federal Court's view this could not be justified even

by the fact that the applicant was convinced that he was thereby

presenting the truth and was refuting allegedly false assertions.

The Federal Court thus balanced the right to raise criticism

against the necessity to protect the reputation and rights of others,

here the other party's lawyer, from unfair and intemperate criticism

by a colleague in the context of civil proceedings. It found that this

interference also pursued the aim of encouraging the applicant to

present his arguments in a more factual way, i.e. the aim of ensuring

the respect for propriety required for official proceedings by good

conduct which, in the Commission's view, is indispensable for

maintaining the authority of the judiciary.

The Commission considers that the sanction imposed on the

applicant was not disproportionate to the legitimate aims pursued, and

that the reasons adduced by the Federal Court were relevant and

sufficient.

In these circumstances, the interference complained of can be

regarded as "necessary in a democratic society" within the meaning of

Article 10 para. 2 (Art. 10-2) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.