Drastic choice of words by lawyers is a human right
The European Court of Human Rights (ECHR) clarified in its judgment of 16 January 2018 (complaint number 40975/08) that the right of lawyers to freedom of expression goes far. In particular, it also includes drastically placative expressions of opinion, at least if they are expressed in a factual context.
1. Dispute over experts in criminal proceedings
In the underlying case, a Slovenian defence lawyer had accused the court-appointed expert of having narcissistic features. He described the manuscript analysis carried out by the expert as “quackery”.
The background was a murder trial in which the current plaintiff (a lawyer) appeared as a criminal defense attorney. In the previous murder trial, there were fierce disputes between the defense counsel and the expert appointed by the court.
In the proceedings, the committed defence lawyer repeatedly doubted the admissibility and reliability of the methods used by the expert.
Among other things, he explained:
“That this was just senseless extensive talking without any meaning, full of contradictions, is supported by the fact that the expert did not link his mental constructs with any concrete mental disorder, not least with the personality disorder in which he had proclaimed himself to be the expert.”
As well as:
“The opinions of both the psychiatrist and psychologist indicate the sad truth that in their pro-fessional weakness, both experts resorted to methods that did not form part of their professional practice. The psychiatrist used psychological methods which he absolutely did not understand and applied them only mechanically; the psychologist applied outdated psychological methods from the stone age of psychology and unscientific psychodynamic concepts and thereby failed to obtain any useful results, therefore he resorted to the field of medicine …”
2. ECtHR Decision on the scope and limits of criminal defence
In the now published decision of the European Court of Human Rights of 20.08.2018, the judges made clear that such statements are covered by freedom of expression if they essentially support an objective concern. This is the case with committed criminal defence. The lawyer was acquitted as a result.
The European Court of Human Rights confirms a line that the German Federal Constitutional Court (Bundesverfassungsgericht) also repeatedly emphasises. In the so-called “Dummschwätzer decision”, for example, the German judges made clear that a statement must always be seen in its context. In other words: “Anyone who talks stupidly must let himself be called a stupid chatterer”. It is permissible to conduct factual disputes with drastic words if these have a true core and are expressed within the framework of a legal dispute.
In the past, attorney Dr. Tobias Rudolph has repeatedly and successfully represented clients, in particular lawyers, who were accused within the framework of judicial disputes of having exceeded the limits of permissible freedom of expression.
You will find further information on this on the German-language page of our website at
