EUR;JCCJa) Council of Europe / b) European Court of Human Rights / c) / d) 24-02-1994 / e) 8/1993/403/481 / f) Casado Coca v. Spain / g) Vol. 285, Series A of the Publications of the Court / h) CODICES (English, French).
Keywords of the systematic thesaurus:
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Institutions - Judicial bodies - Legal assistance and representation of parties - The Bar - Discipline.
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Fundamental Rights - Civil and political rights - Freedom of expression.
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Keywords of the alphabetical index:
Summary:
In 1979 the applicant started a legal practice in Barcelona; he then regularly placed notices advertising his practice in a number of local newspapers and sent letters to various businesses offering his services. The Barcelona Bar Council took disciplinary proceedings against him on several charges; these ended in 1981 with his being given a number of reprimands and warnings. The applicant submitted that these sanctions violated his right to freedom of expression (["const-eng-ech-0-010"]Article 10 ECHR).
The Court pointed out that ["const-eng-ech-0-010"]Article 10 ECHR guaranteed freedom of expression to everyone, without making any distinction according to whether the type of aim pursued was profit-making or not. It did not apply solely to certain types of information, ideas or forms of expression, in particular those of a political nature, but also encompassed artistic expression, information of a commercial nature and even light music and commercials transmitted by cable.
It noted that the impugned notices had merely given the applicant's name, profession, address and telephone number. They had clearly been published with the aim of advertising, but they had provided persons requiring legal assistance with information that was of definite use and likely to facilitate their access to justice. ["const-eng-ech-0-010"]Article 10 ECHR was therefore applicable.
The Bar rules complained of had been designed to protect the interests of the public while ensuring respect for members of the Bar. In that connection, the special nature of the profession practised by members of the Bar had to be considered; in their capacity as officers of the court, their conduct had to be discreet, honest and dignified. The restrictions on advertising were justified by reference to those special features. In the case of the decision in issue, there was nothing to show that the Barcelona Bar Council's intention had not corresponded to the acknowledged aim of the legislation.
The States parties to the Convention had a certain margin of appreciation in assessing the necessity of an interference, but it was subject to European supervision as regards both the relevant rules and the decisions applying them. Such a margin of appreciation was essential in respect of advertising. In the present instance the Court's task was therefore confined to ascertaining whether the measures taken were justifiable in principle and proportionate.
For the citizen advertising was a means of discovering the characteristics of services and goods offered to him. Nevertheless, it might sometimes be restricted, especially to prevent unfair competition and untruthful or misleading advertising. In some contexts, the publication of even objective, truthful advertisements might be restricted in order to ensure respect for the rights of others or owing to the special circumstances of particular business activities and professions. The Court had to weigh the requirements of those particular features against the advertising in question.
The Court pointed out that a member of the Bar in independent practice could not be compared to commercial undertakings such as insurance companies, which were not subject to restrictions on advertising their legal consulting services. The former's central position in the administration of justice as an intermediary between the public and the courts explained the usual restrictions on the conduct of members of the Bar. It also noted that the rules governing advertising by members of the Bar varied from one country to another according to cultural tradition, and that in most of the States parties to the Convention, including Spain, there had for some time been a tendency to relax them. The wide range of regulations and the different rates of change in the Council of Europe's member States indicated the complexity of the issue. Because of their direct, continuous contact with their members, the Bar authorities and the country's courts were in a better position than an international court to determine how, at a given time, the right balance could be struck between the various interests involved, namely the requirements of the proper administration of justice, the dignity of the profession, the right of everyone to receive information about legal assistance and affording members of the Bar the possibility of advertising their practices.
The Court held that at the material time (1982/83) the relevant authorities' reaction could not be considered disproportionate to the aim pursued, and that consequently there had been no breach of ["const-eng-ech-0-010"]Article 10 ECHR.
English, French.