Defamation / Reputation
Afanasyev v. Zlotnikov
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The European Court of Human Rights held that imposing criminal and disciplinary sanctions on a lawyer who alleged that expert evidence had been manufactured and that an illegal search had taken place did not violate the right to freedom of expression. The Court held that the sanctions had been necessary to protect the public prosecution’s function of preventing disorder and crime and to protect court experts from abusive verbal attacks. The application had been made by a lawyer, Ulrich Fuchs, who had lodged a formal complaint alleging that local police had burglarized his client’s premises and that a court expert had altered or manipulated encrypted files that allegedly contained child pornography. He had been fined €4,200 by the Munich Regional Court and the city’s District Disciplinary Court of Lawyers had imposed an additional fine of €3,000.
In December 2003, police raided a set of rooms that belonged to the applicant and which he had sublet to a mutual support group of men struggling with pedophile tendencies. As the front door of the premises was damaged as a result of the forced entry, Fuchs went to the local police station on the following day to obtain information. Police refused to provide him a copy of the underlying search warrant because he could not show a written power of attorney.
After securing the legal representation of the association that had leased the residence, Fuchs lodged a criminal complaint with the public prosecutor, alleging that because no search warrant was given at the time of the entry the police officers were directly or indirectly involved with burglary. As a result, the public prosecutor initiated a criminal investigation which it later decided to discontinue after it found that the search had been carried out by police pursuant to a search warrant.
During the underlying search of the residence, police found encrypted computer files that were alleged to contain evidence of child pornography. A sworn-in private IT expert later decoded the files and submitted the results to police. During the indictment proceeding, Fuchs challenged the veracity of the expert’s findings. In his submission to the court, he said, “[e]vidence is based on files, found with the indictee, have been altered meaning the assessment of files containing child pornography is carried out on a file newly created by the experts.” [para. 8] He further questioned the experts’ independence, alleging that “[t]he investigating private company has a considerable personal interest in successful results, no matter whether the findings are correct or findings after producing an object of investigation containing the desired result.” [para. 8]
In October 2004, the expert lodged a criminal complaint against Fuchs. The Munich District Court convicted him of misleading the authorities with respect to his burglary claim. It observed that Fuchs was aware of the fact no burglary had taken place and that the search was carried out on the basis of a search warrant. Then in February 2006, the Munich Regional Court upheld the conviction for misleading but found Fuchs guilty of insult instead of defamation. The court held that his allegations about expert’s impartiality “could not be justified by the legitimate pursuit of his client’s interests.” [para. 13]
In September 2006, the Munich Court of Appeal reversed and remanded the Regional Court’s judgment with respect to Fuchs’ conviction for insult. On remand, the Regional Court found Fuchs’ submission to the court about the expert contained factual allegations, that the expert had falsified the evidence in order to obtain the desired results. Finding no factual basis for those allegations, the Court convicted Fuchs of defamation. Referring to the European Court of Human Rights’ decision in Steur v. the Netherlands, the Regional Court held that even though Fuchs was permitted to use drastic words in the “struggle for justice,” his conduct had to be “discreet, honest and dignified.” It further explained that while the expert had to explain the methods used to decode the client’s files, the absence of such explanation did not give Fuchs the right to allege falsification.
The court found Fuchs guilty of defamation and misleading government authorities and sentenced him to a cumulative fine of €4,200. Then in September 2009, the Munich District Disciplinary Court for Lawyer reprimanded Fuchs for breach of his duties as a lawyer by committing defamation and misleading the authorities, and imposed an additional fine of €3,000.
In February 2011, the Special Division of the Federal Court of Justice dismissed Fuchs’s complaint against the denial to grant leave to appeal. One month later, the Federal Constitutional Court of Germany refused to review his constitutional complaint that his right to freedom of conscious and of profession was violated as a result of the conviction.
Having exhausted all his domestic remedies, Fuchs lodged an application with the European Court of Human Rights in May 2011, alleging that his criminal and disciplinary convictions violated his right to freedom of expression under Article 10 of the European Convention on Human Rights.
Fuchs argued before the European Court of Human Rights that his complaint to the public prosecutor with regard to the police’s search of his client’s premises was correct and that as a lawyer and under the duty of confidentiality, he was not entitled to disclose all the facts known to him in connection with representing his client. With respect to the defamation conviction, Fuchs contended furthermore that as defense counsel for his client he must be allowed to “criticize the expert’s methods and to express doubts as to the accuracy of the expert opinion.” [para. 35]
The main issue before the Court was whether the criminal and disciplinary convictions imposed on Fuchs were “necessary in a democratic society” within the meaning of Article 10 of the Convention. This required the Court to assess whether the underlying interference “corresponded to a ‘pressing social need’ and whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient.” [para. 38]
Noting that the applicant in this case was a professional lawyer, the Court reiterated a set of specific principles applicable to the legal profession, including the legitimate expectation from lawyers “to contribute to the proper administration of justice, and thus to maintain public confidence.” [para. 39] With respect to his conviction for misleading officials, the Court observed that the domestic courts generally “are entitled to sanction the deliberate submission of misleading information to public prosecution, in order to safeguard public prosecution’s function in preventing disorder or crime“. [para. 40] The Court held that Fuchs had failed to provide sufficient evidence showing that the deliberate omission of certain facts in his complaint, including the existence of a search warrant, would have breached his duty of confidentiality. Holding further that the fines imposed on him were not disproportionate, the Court concluded that his conviction for misleading the authorities did not violate Article 10 of the Convention.
With respect to the conviction for defamation, the Court accepted the conclusions reached by the domestic courts that Fuchs’s allegations amounted to defamation. It particularly noted the Disciplinary Court of Appeal’s careful examination, which had found that Fuchs’ statements lacked any objective criticism of the expert’s methods and that his aim was generally to declare the findings unusable. The Court further noted that for experts to be able to successfully perform their tasks free from “undue perturbation,” “it may be necessary to protect them from offensive and abusive verbal attacks when on duty.” [para. 42] The Court, however, did not proceed with the question of whether Fuchs’ statements about the expert were abusive or offensive.
In light of the above considerations, the Court concluded that the criminal and disciplinary convictions imposed on Fuchs did not violate his right to freedom of expression under Article 10 of the Convention, and declared the application manifestly ill-founded.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision of the European Court of Human Rights reaffirms its long-held jurisprudence that a legitimate interference with the right to freedom of expression must be “necessary in a democratic society,” based on which, the interference must correspond to a pressing social need. Here, the Court recognized the necessity of protecting court sworn-in experts from abusive and offensive attacks that could undermine the successful performance of their tasks. The Court also affirmed its general tenet that lawyers are under a special duty with regard to the courts, and that notwithstanding their duty to their clients, they cannot use this as an excuse to launch unsubstantiated attacks on experts or provide misleading information.
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Judgments of the European Court of Human Rights are binding upon parties to the case and constitute an authoritative interpretation of the meaning of Convention rights for all other States that are party to the Convention.
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