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A lawyer’s right to criticize under Article 10

The applicant was representing a client in administrative criminal proceedings for alleged breaches of the Frozen Food Labelling Decree. In written submissions prepared in those proceedings the applicant accused the Vienna Food Inspection Agency of attempting to play tricks on his client.

It was not in dispute that the disciplinary proceedings resulting in a written reprimand interfered with the applicant's right to freedom of expression. Nor was it disputed that the interference was “prescribed by law” and served a legitimate aim, namely the protection of the reputation of others. The Court need not decide whether it also served the aim of maintaining the authority and impartiality of the judiciary.

The parties' submissions concentrated on the necessity of the interference. The Court reiterated that while lawyers are certainly entitled to comment in public on the administration of justice, their criticism must not overstep certain bounds. In that connection, account must be taken of the need to strike the right balance between the various interests involved, which include the public's right to receive information about questions arising from judicial decisions, the requirements of the proper administration of justice and the dignity of the legal profession. The national authorities have a certain margin of appreciation in assessing the necessity of interference, but this margin is subject to European supervision as regards both the relevant rules and the decisions applying them.

However, in the field under consideration in the present case there were no particular circumstances – such as a clear lack of common ground among member States regarding the principles at issue or a need to make allowance for the diversity of moral conceptions – which would justify granting the national authorities a wide margin of appreciation.

Schmidt v Austria [2008] ECHR 628.

 

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