Right to strike
II. RELEVANT DOMESTIC LAW AND PRACTICE 22. The following provisions of French law need to be set out: A. General provisions 1. The Criminal Code 23. Article 226, first paragraph "Anyone who by his acts or by means of the written or spoken word has publicly attempted to bring discredit on any action or decision taken by a court, in a manner likely to impair the authority or independence of the judiciary, shall be liable to imprisonment for not less than one month and not more than six months and a fine of not less than 500 francs and not more than 90,000 francs or to only one of these two penalties." 2. The Code of Criminal Procedure 24. Article 105 "An investigating judge in charge of an investigation and judges and senior police officers ( officiers de police judiciaire ) acting on judicial warrants shall not, with the intention of preventing the exercise of the rights of the defence, examine as witnesses persons against whom there is substantial, consistent evidence of guilt." Article 109 "Anyone summoned to be examined as a witness shall be required to appear, to take the oath and to give evidence, subject to the provisions of Article 378 of the Criminal Code [duty of professional confidentiality]. If a witness fails to appear, the investigating judge may, on an application by the public prosecutor, have the witness brought before him by the police and impose on him a fine of not less than 2,500 francs and not more than 5,000 francs. If the witness subsequently appears, however, he may, if he apologises and provides an explanation, be excused this penalty by the investigating judge, after the public prosecutor has made submissions. The same penalty may, on an application by the prosecutor, be imposed on a witness who, although he has appeared, refuses to take the oath and to give evidence. ... ." B. Provisions relating specifically to avocats 1. The Decree of 9 June 1972 "regulating the profession of avocat, implementing the Act of 31 December 1971 reforming certain court and legal professions" 25. Article 89 "An avocat must not, in any matter, make any disclosure in breach of professional confidentiality. He must, in particular,respect the confidentiality of judicial investigations in criminal matters by refraining from communicating any information from the file and from publishing letters or other documents concerning a current investigation." Article 104 "The Bar Council sitting as a disciplinary board shall proceed against and punish offences and misconduct by an avocat or a former avocat where at the material time he was entered on a Bar roll, list of trainees or list of honorary avocats." Article 106 "Any contravention of statutes or regulations, infringement of professional rules or breach of integrity, honour or discretion, even relating to non-professional matters, shall render the avocat responsible liable to the disciplinary sanctions listed in Article 107." Article 107 "The disciplinary penalties shall be: A warning; A reprimand; Suspension for a period not exceeding three years; Striking off the roll of avocats or list of trainees or withdrawal of honorary status. A warning, a reprimand and suspension may, if so provided in the decision in which the disciplinary penalty is imposed, entail loss of membership of the Bar Council for a period not exceeding ten years. The Bar Council may further order, as an ancillary penalty, that any disciplinary penalty shall be publicly displayed on the Bar ’ s premises." Article 113 "The Chairman of the Bar, either on his own initiative or on an application from the Principal Public Prosecutor or on a complaint by any party affected, shall inquire into the conduct of the avocat concerned. He shall then either discontinue the proceedings or refer the matter to the Bar Council. If he has received a complaint, he shall inform the complainant. If the facts were reported to him by the Principal Public Prosecutor, he shall notify the latter. ... ." 2. The Act of 15 June 1982 "on the procedure applicable in the event of professional misconduct by an avocat at a court hearing" 26. Avocats are bound by the oath they take when entering upon their duties. The wording of the oath is given in section 1 of the Act of 15 June 1982 : "I swear, as an avocat, to defend and counsel in a dignified, conscientious, independent and humane manner." Before that Act came into force, the oath was worded as follows: "I swear, as an avocat, to defend and counsel in a dignified, conscientious, independent and humane manner, with respect for the courts, the public authorities and the rules of the Bar, and neither to say nor to publish anything contrary to statute, regulations, morals, the security of the State, or public order." (Article 23 of the Decree of 9 June 1972) An avocat who took the oath before the Act of 15 June 1982 came into force is deemed to have taken it in its current form. 27. In a judgment of 9 June 1964 the Court of Cassation (First Civil Division) held that the avocat ’ s oath "also [bound] him in all circumstances not to deviate from the respect due to the courts and to the public authorities; ...". ( Juris-Classeur périodique 1964, II, no. 13797, note by J.A.) Moreover, in a judgment of 30 June 1965 (Criminal Division, Bouvier ) the Court of Cassation held that an avocat, while being entitled to protest at any infringement of the rights of the defence, must refrain from any expression which would reflect on the honour or discretion of a judge. PROCEEDINGS BEFORE THE COMMISSION 28. In his application of 16 October 1985 to the Commission (no. 11800/85), Mr Ezelin relied on Articles 10 and 11 (art. 10, art. 11) of the Convention. He submitted that the disciplinary sanction imposed on him seriously interfered with his freedom of expression and of peaceful assembly. 29. The Commission declared the application admissible on 13 March 1989. In its report of 14 December 1989 (made under Article 31) (art. 31) it expressed the opinion that there had been a breach of Article 11 (art. 11) (by fifteen votes to six) and that no separate issue arose under Article 10 (art. 10) (unanimously). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS TO THE COURT 30. At the hearing on 20 November 1990 the Agent of the Government maintained the submissions made in his memorial. In those the Court was asked to hold that there had been no violation of Article 11 (art. 11) and to endorse the Commission ’ s view that no separate issue arose under Article 10 (art. 10). Counsel for the applicant asked the Court to find that there had been a breach of freedom of expression and of freedom of peaceful assembly guaranteed in Articles 10 and 11 (art. 10, art. 11) and to award his client the compensation sought. AS TO THE LAW 31. The applicant considered that the disciplinary sanction imposed on him by the Basse-Terre Court of Appeal was incompatible with his freedom of expression and his freedom of peaceful assembly, which were protected by Articles 10 and 11 (art. 10, art. 11) of the Convention. 32. The Government pointed out that this sanction was also designed to punish Mr Ezelin for his refusal to give evidence to the investigating judge. They criticised the Commission for suggesting that the only matter in issue was the applicant ’ s participation in the demonstration. 33. The applicant was in fact punished for having neither shown his disapproval of the "demonstrators ’ offensive and insulting acts" nor left the procession in order to dissociate himself from them and also for having refused to give evidence although he had not invoked Article 105 of the Code of Criminal Procedure or professional confidentiality (see paragraphs 20 and 21 above). Nevertheless, he was summoned before the investigating judge as a result of having taken part in the demonstration. That being so, the question of the refusal to give evidence - an issue which in itself does not come within the ambit of Articles 10 and 11 (art. 10, art. 11) - is a secondary one. It may be noted, moreover, that Mr Ezelin did not remain totally silent in the presence of the investigating judge: he stated that he had nothing to say on the matter, and the judge did not see fit to use his power under Article 109, third paragraph, of the Code of Criminal Procedure (see paragraphs 15, 20 and 21 above). I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) 34. The applicant based one of his submissions on Article 10 (art. 10), which 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 and regardless of frontiers. ... 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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." 35. In the circumstances of the case, this provision is to be regarded as a lex generalis in relation to Article 11 (art. 11), a lex specialis, so that it is unnecessary to take it into consideration separately. On this point the Court agrees with the Commission. II. ALLEGED VIOLATION OF ARTICLE 11 (art. 11) 36. The main question in issue concerns Article 11 (art. 11), which provides: "1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ..." 37. Notwithstanding its autonomous role and particular sphere of application, Article 11 (art. 11) must, in the present case, also be considered in the light of Article 10 (art. 10) (see the Young, James and Webster judgment of 13 August 1981, Series A no. 44, p. 23, § 57). The protection of personal opinions, secured by Article 10 (art. 10), is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (art. 11). A. Whether there was an interference with the exercise of the freedom of peaceful assembly 38. In the Government ’ s submission, Mr Ezelin had not suffered any interference with the exercise of his freedom of peaceful assembly and freedom of expression: he had been able to take part in the procession of 12 February 1983 unhindered and to express his convictions publicly, in his professional capacity and as he wished; he was reprimanded only after the event and on account of personal conduct deemed to be inconsistent with the obligations of his profession. 39. The Court does not accept this submission. The term "restrictions" in paragraph 2 of Article 11 (art. 11-2) - and of Article 10 (art. 10-2) - cannot be interpreted as not including measures - such as punitive measures - taken not before or during but after a meeting (cf. in particular, as regards Article 10 (art. 10), the Handyside judgment of 7 December 1976, Series A no. 24, p. 21, § 43, and the Müller and Others judgment of 24 May 1988, Series A no. 133, p. 19, § 28). 40. In the second place, the Government maintained that despite the peaceful nature of Mr Ezelin ’ s own intentions and behaviour, the sanction of which he complained had in no way infringed his freedom of peaceful assembly seeing that the demonstration had got out of hand. In the Commission ’ s opinion, no intentions that were not peaceful could be imputed to the applicant. 41. The Court points out that prior notice had been given of the demonstration in question and that it was not prohibited. In joining it, the applicant availed himself of his freedom of peaceful assembly. Moreover, neither the report made by the Chief Superintendent of the Basse-Terre police nor any other evidence shows that Mr Ezelin himself made threats or daubed graffiti. The Court of Appeal found the charge of not having "dissociate[d] himself from the demonstrators ’ offensive and insulting acts or [left] the procession" (see paragraph 20 above) proven. The Court of Cassation noted that at no time did he "express his disapproval of these excesses or leave the procession in order to dissociate himself from these criminal acts" (see paragraph 21 above). The Court accordingly finds that there was in this instance an interference with the exercise of the applicant ’ s freedom of peaceful assembly. B. Whether the interference was justified 42. It must therefore be determined whether the sanction complained of was "prescribed by law", prompted by one or more of the legitimate aims set out in paragraph 2 and "necessary in a democratic society" for achieving them. 1. "Prescribed by law" 43. The applicant submitted that Article 106 of the Decree of 9 June 1972 was in no way intended to restrict the right of assembly of avocats; moreover, the general nature of the words "breach of ... discretion" made it impossible to define a breach in advance and allowed of any sanction after the event. 44. The Government considered, on the contrary, that this provision required avocats, who were "officers of the court" (auxiliaires de la justice), to respect a number of professional principles of a legal and ethical nature. The provision was sufficiently precise where, as in the instant case, the conduct being punished was contrary to the rules of the profession. 45. According to the Court ’ s case-law, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, the Müller and Others judgment previously cited, Series A no. 133, p. 20, § 29). Experience shows, however, that it is impossible to attain absolute precision in the framing of laws, particularly in fields in which the situation changes according to the prevailing views of society (ibid.). In the instant case the legal basis of the sanction complained of lay solely in the special rules governing the profession of avocat. Article 106 of the relevant Decree of 9 June 1972 provides unequivocally that any avocat, even in his non-professional activities, has special obligations (see paragraph 25 above); and the Court of Cassation has held that these include the respect due to the judicial authorities (see paragraph 27 above). That being so, the interference was "prescribed by law". 2. Legitimate aim 46. The applicant claimed that the sanction was not in pursuit of a legitimate aim; it resulted in his being prevented from expressing his ideas and his trade-union demands. The Government, on the other hand, submitted that its purpose was the "prevention of disorder". 47. It is apparent from the evidence that Mr Ezelin incurred the punishment because he had not dissociated himself from the unruly incidents which occurred during the demonstration. As the Commission noted, the authorities took the view that such an attitude was a reflection of the fact that the applicant, as an avocat, endorsed and actively supported such excesses. The interference was therefore in pursuit of a legitimate aim, the "prevention of disorder". 3. Necessity in a democratic society 48. In the applicant ’ s submission, the interference of which he was complaining was not "necessary in a democratic society". To claim that he should have left the procession in order to express his disapproval of acts committed by other demonstrators was, he said, to deny his right to freedom of peaceful assembly. 49. The Government, on the other hand, submitted that the disputed measure did indeed answer a "pressing social need", having regard in particular to Mr Ezelin ’ s position as an avocat and to the local background. By not disavowing the unruly incidents that had occurred during the demonstration, the applicant had ipso facto approved them. Furthermore, they claimed, it was essential for judicial institutions to react to behaviour which, on the part of an "officer of the court" ( auxiliaire de la justice), seriously impaired the authority of the judiciary and respect for court decisions. Lastly, the gravity of the two breaches of professional duty of which the applicant was accused justified the sanction imposed on him, which was a light, token sentence that did not offend against the proportionality principle laid down in the Court ’ s case-law. 50. The Commission contended that a disciplinary penalty based on an impression to which Mr Ezelin ’ s behaviour might give rise was not compatible with the strict requirement of a "pressing social need" and therefore could not be regarded as "necessary in a democratic society". 51. The Court has examined the disciplinary sanction in question in the light of the case as a whole in order to determine in particular whether it was proportionate to the legitimate aim pursued, having regard to the special importance of freedom of peaceful assembly and freedom of expression, which are closely linked in this instance. 52. The proportionality principle demands that a balance be struck between the requirements of the purposes listed in Article 11 § 2 (art. 11-2) and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places. The pursuit of a just balance must not result in avocats being discouraged, for fear of disciplinary sanctions, from making clear their beliefs on such occasions. 53. Admittedly, the penalty imposed on Mr Ezelin was at the lower end of the scale of disciplinary penalties given in Article 107 of the Decree of 9 June 1972 (see paragraph 25 above); it had mainly moral force, since it did not entail any ban, even a temporary one, on practising the profession or on sitting as a member of the Bar Council. The Court considers, however, that the freedom to take part in a peaceful assembly - in this instance a demonstration that had not been prohibited - is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion. In short, the sanction complained of, however minimal, does not appear to have been "necessary in a democratic society". It accordingly contravened Article 11 (art. 11). III. APPLICATION OF ARTICLE 50 (art. 50) 54. Article 50 (art. 50) provides: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." The applicant sought compensation for damage and reimbursement of expenses under this provision. A. Damage 55. Mr Ezelin claimed compensation in the amount of 25,000 French francs (FRF) for non-pecuniary damage, on the ground that publication of the sanction complained of in legal journals and the local publicity which ensued had harmed his reputation and interests. 56. The Government left the matter to the Court ’ s discretion in the event of the Court ’ s finding that damage had indeed been sustained. The Delegate of the Commission submitted that compensation should be awarded, but did not suggest any figure. 57. In the circumstances of the case the finding that there has been a breach of Article 11 (art. 11) affords Mr Ezelin sufficient just satisfaction for the damage alleged. B. Costs and expenses 58. The applicant also claimed reimbursement of FRF 40,000 in respect of fees, costs and expenses incurred in the Court of Cassation (FRF 15,000) and in the proceedings before the Convention institutions (Commission: FRF 10,000; Court: FRF 15,000). No observations were made by the Government or the Delegate of the Commission. 59. On the basis of the information in its possession and its case-law on the subject, the Court, making an assessment on an equitable basis, allows the applicant ’ s claim in full.
Violation of Article 11 of the Convention: Although the penalty had mainly moral force, the Court considered that “the freedom to take part in a peaceful assembly – in this instance a demonstration that had not been prohibited - is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion.”