Lawyers
THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 31. The applicant complained that the disciplinary penalty imposed on him was incompatible with Article 10 of the Convention, which reads as follows: “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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 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.” ... B. Merits 1. The parties ’ submissions 33. The applicant justified the forcefulness of his defence by the unreasonableness of the French authorities ’ request to the Syrian authorities to question S.A., thus clearly exposing the latter to torture. He emphasised that the Government had made no mention of any effort by the prosecuting or investigating authorities to prevent such acts of torture or to ensure that those acts would not have any effect on the French proceedings. They could have ( 1) requested the suspect ’ s extradition, or ( 2) referred the matter to the Investigation Division with a view to having the relevant statements excluded from the file under Article 173 of the Code of Criminal Procedure ... In that context he indicated that he had been in a difficult situation, since the committal decision was supposed to have removed all such defects from the previous proceedings. In that connection he observed that the public prosecutor had failed to react to his remarks before the trial court. 34. The applicant argued that the offending remarks, and in particular the use of the word “complicity”, had to be placed in their context and were dominated by the denunciation of an unacceptable lack of intervention. In addition, a number of points warranted particular attention : ( 1) the origin of the disciplinary offence lay in written pleadings submitted before the criminal courts and not in public remarks made outside the courtroom; ( 2) the forceful criticisms, of a systemic nature, did not refer to the judges ’ names and were strictly part of a debate in the general interest geared towards the defence of S.A.; and (3) the judiciary itself had not been impugned, as the criticism of the public prosecutor ’ s office or the judicial investigation had not been directed at the trial courts themselves. 35. The applicant took the view that the option of disciplinary proceedings did not meet any compelling need. The authorities could have used other, less harmful means to limit his freedom of expression, such as a request by the public prosecutor for the redacting of any remarks in his pleadings considered irrelevant to the defence of S.A. or proceedings brought by the investigating judges for defamation or insult under the press legislation. He observed that the trial courts had, moreover, noted the excessive nature of the defence and that this assessment could have been regarded as sufficient without extending the matter to the disciplinary plane. He concluded by pointing out that to be found to have impugned the honour of judges had severe repercussions on a lawyer ’ s career and was a disproportionate sanction. 36. The Government did not dispute the fact that there had been an interference. They argued that it was prescribed by law, namely by the decree of 27 November 1991 organising the legal profession, and that it pursued the legitimate aim of protecting the reputation or the rights of others; in addition, the proceedings against the applicant had been such as to “maintain the authority and impartiality of the judiciary”. Further, the interference had met a pressing social need and had been proportionate to the aims pursued. 37. The Government took the view that it had not been necessary for the defence of S.A. to make derogatory comments about the judges concerned. They considered that the attacks had been pointless and gratuitous and that the applicant could have simply submitted that the prohibition of torture was absolute. 38. In the Government ’ s submission, the content of the statements could not merely be regarded as a lack of regard for the authorities concerned; they were in reality capable of undermining public confidence in the justice system ( contrast Foglia v. Switzerland, no. 35865/04, § 95, 13 December 2007, and the judgments cited ). The allegations of complicity in torture had thus been directed personally against the judges, who could be recognised and identified even though not named, and had impugned their respectability, their moral integrity and their professional and ethical qualities. The remarks were dishonourable as they related to particularly serious criminal offences carrying severe penalties. The applicant was precluded, in the Government ’ s opinion, from minimising the meaning of his remarks and defining the alleged complicity in torture as a mere lack of curiosity on the part of the judges concerned: the comment that they had “promoted torture ” referred to the idea of active complicity, as found by the Paris Court of Appeal. 39. The Government emphasised that the impugned remarks, contained as they were in the applicant ’ s pleadings, had been the result of careful consideration and not of a fit of anger or the sort of sudden immoderate language that could be heard in the occasional vociferous exchanges during court proceedings. 40. The Government added that such exchanges certainly did not allow disrespectful remarks to be directed against investigating judges, who were not parties to the criminal proceedings ( unlike prosecutors – they referred to Nikula, cited above, § 52). They argued that the immunity of lawyers in respect of their pleadings was not absolute : it did not entail disciplinary immunity and did not obviate the need to use prudent language. 41. The Government further noted the lack of basis of the impugned statements, which amounted to value judgments. They did not dispute the veracity of the factual information about the acts of torture, but took the view that the subjective conclusions as to the judges ’ implication in the commission of those acts were inadmissible; the Criminal Court had pointed out that M.B. had not been authorised to participate in S.A. ’ s interviews in Syria. 42. The Government concluded that the impugned remarks had constituted attacks on judges which could endanger the dispassionate conduct of judicial proceedings, without regard for the essential principles of tactfulness and moderation that lawyers, on taking the oath, undertook to uphold. They were of the opinion that, in view of the gravity of those accusations, a disciplinary sanction, which was less of a deterrent than a criminal sanction, appeared proportionate. 2. The Court ’ s assessment ( a) General principles 43. The Court refers to the general principles concerning freedom of expression as set out in Morice v. France ( [GC], no. 29369/10, §§ 124 - 27, 2 3 April 2015 ). 44. In terms, more specifically, of maintaining the authority of the judiciary, the Court has emphasised that regard must be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a law-governed State, the judiciary must enjoy public confidence if they are to be successful in carrying out their duties. It may therefore prove necessary to protect such confidence against gravely damaging attacks that are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying. Nevertheless – save in the case of such attacks – judges may, when acting in their official capacity, be subject to wider limits of acceptable criticism than ordinary citizens ( see Morice, cited above, §§ 128 and 131, and Peruzzi v. Italy, no. 39294/09, § 52, 30 June 2015). 45. Freedom of expression is applicable also to lawyers. It encompasses not only the substance of the ideas and information expressed but also the form in which they are conveyed. Lawyers are thus entitled, in particular, to comment in public on the administration of justice, provided that their criticism does not overstep certain bounds. The usual rules of conduct imposed on members of the Bar, particularly as regards “dignity, honour or integrity” or “ respect for the fair administration of justice”, contribute to the protection of the judiciary from gratuitous and unfounded attacks, which may be driven solely by a wish or strategy to ensure that the judicial debate is pursued in the media or to settle a score with the judges handling a particular case. The question of freedom of expression is related to the independence of the legal profession, which is crucial for the effective functioning of the fair administration of justice. It is only in exceptional cases that restriction – even by way of a lenient criminal sanction – of defence counsel ’ s freedom of expression can be accepted as necessary in a democratic society ( see Morice, cited above, §§ 134 - 35). 46. It is nevertheless appropriate to distinguish between the expression of lawyers inside and outside the courtroom. As regards “conduct in the courtroom”, which is the relevant aspect in the present case, only those remarks which exceed what is permitted by the exercise of defence rights would legitimise restrictions on the freedom of expression of lawyers. The Court would refer to paragraph 137 of the Morice judgment, which reiterates the terms of the Nikula judgment ( cited above ) : “§ 137 ... since the lawyer ’ s freedom of expression may raise a question as to his client ’ s right to a fair trial, the principle of fairness thus also militates in favour of a free and even forceful exchange of argument between the parties ... Lawyers have the duty to ‘ defend their clients ’ interests zealously ’ ..., which means that they sometimes have to decide whether or not they should object to or complain about the conduct of the court ... In addition, the Court takes into consideration the fact that the impugned remarks are not repeated outside the courtroom and it makes a distinction depending on the person concerned; thus, a prosecutor, who is a ‘ party ’ to the proceedings, has to ‘ tolerate very considerable criticism by ... defence counsel ’, even if some of the terms are inappropriate, provided they do not concern his general professional or other qualities ...” In the Nikula judgment ( cited above, §§ 51 and 52), the Court took the view that remarks made by a lawyer during the hearing did not constitute personal insults, but criticisms directed at the prosecution strategy which were “of a procedural character”. More recently, in the case of Kincses v. Hungary ( no. 66232/10, §§ 33 and 37, 27 January 2015, and see all the cases cited therein ), the Court reiterated that a clear distinction must be made between criticism and insult ( see also Wingerter v. Germany (dec.), no. 43718/98, 21 March 2002, and Fuchs v. Germany (dec.), nos. 2922 2 /11 and 64345/11, 27 January 2015, concerning a judgment against a lawyer for defamatory remarks made against an expert for the prosecution ). 47. Lastly, the Court would point out that it has previously found that ex post facto review of remarks made by a lawyer in the courtroom is difficult to reconcile with defence counsel ’ s duty to defend their clients ’ interests zealously and could have a “chilling” effect on the practise of the legal profession ( see Nikula, cited above, § 54; Steur v. the Netherlands, no. 39657/98, § 44, ECHR 2003 ‑ XI; and, mutatis mutandis, Roland Dumas v. France, no. 34875/07, § 48, 15 July 2010). ( b) Application of those principles to the present case 48. The impugned judgment against the applicant can be regarded as an “interference” with his right to freedom of expression, as the Government acknowledge. Such an interference will breach Article 10 of the Convention, unless it is “prescribed by law”, pursues one or more of the legitimate aims listed in paragraph 2 of Article 10, and is “necessary in a democratic society” in order to fulfil the said aim or aims. 49. It is not in dispute between the parties that the interference was prescribed by law, namely by the legislation organising the legal profession ... They also agree that the aim of the interference was the protection “of the reputation or rights of others”. The Government were of the view that it also had the aim of maintaining the authority and impartiality of the judiciary. The Court, like the Government, finds that the proceedings brought against the applicant also pursued the legitimate aim of protecting the “authority of the judiciary”, to which the investigating judges belonged. 50. The Court must further examine whether that interference was necessary in a democratic society, thus requiring it to ascertain whether it was proportionate to the legitimate aim and whether the reasons given by the domestic courts were relevant. 51. The Court notes that the impugned remarks, on account of their virulence, were clearly insulting for the investigating judges. It reiterates that the proper functioning of the courts would not be possible without relations based on consideration and mutual respect between the various protagonists in the justice system, at the forefront of which are judges and lawyers ( see Morice, cited above, § 170). The Court finds in this connection, as did the Paris Court of Appeal ( see paragraph 21 above ), that the applicant ’ s conclusions accusing the investigating judges of being complicit in torture were not necessary for the pursuit of his stated aim, namely to have the statements taken from S.A. under torture excluded from the evidence, especially as the first-instance court had already accepted that request ( see paragraph 14 above ). Nevertheless, it must be ascertained whether the disciplinary sanction imposed on the applicant by the Paris Court of Appeal, as upheld by the Court of Cassation, struck a fair balance between courts and lawyers in the context of a fair administration of justice. 52. The Court observes that the impugned remarks had been made in a judicial context, because they had been transmitted in writing when the applicant submitted his pleadings before the Paris Court of Appeal. They were part of his efforts to obtain, before addressing the merits of the case, the exclusion by that court of the statements that had been taken from his client under torture in Syria. The Court notes that the passages identified as offensive by the public prosecutor were not directed at the investigating judges by name but concerned the manner in which they had conducted the investigation. In particular, the applicant had complained about the choice of issuing an international letter of request when the judges should have known that interrogations by the Syrian secret service were conducted without regard for human rights and more specifically in breach of Article 3 of the Convention. The Court took the view that this “accusation” concerned the procedural choice of the judges. The Court finds, moreover, that the national courts did uphold the request to exclude evidence obtained in violation of Article 3 of the Convention ( see, for example, Gäfgen v. Germany [GC], no. 22978/05, §§ 107-108, ECHR 2010) whereas that cause of exclusion had not been raised during the judicial investigation, neither by the judges themselves nor by the public prosecutor ( see paragraphs 12 ... above ). In that procedural context, the Court found that the impugned pleadings directly contributed to the applicant ’ s task of defending his client, to ensure that the case file going forward would be “cleansed” of any inadmissible evidence. 53. The Court agrees with the Government ’ s characterisation of the remarks, which were more like value judgments, as they mainly consisted in an overall assessment of the conduct of the investigating judges during the judicial investigation. It takes the view, however, that the remarks did have some factual basis. It notes that while the judge M.B. was not able to take part in the interviews, he followed them in real time, in Damascus, on the basis of the list of questions contained in the international letter of request and the supplementary questions to which he wished to have answers, in addition to those already recorded ( see paragraph 14 above ). Moreover, the Court observes that the methods of the Syrian police were notorious, as shown by the witness statements adduced in the Criminal Court in the present case and also by all the international reports on this subject ( see, for example, Al Husin v. Bosnia and Herzegovina, no. 3727/08, §§ 40 - 43, 7 February 2012). 54. The Court further finds that the applicant ’ s criticisms remained inside the “courtroom”, because they were contained in written pleadings. They were not therefore capable of undermining or threatening the functioning of the justice system or the reputation of the judiciary among the general public. It observes in this connection that the Paris Court of Appeal and the Court of Cassation failed to take this contextual element into account ( contrast Fuchs, cited above, § 42) and did not give consideration to the limited audience to which the remarks had been addressed. 55. Having regard to the foregoing, the Court is of the view that the disciplinary sanction imposed on the applicant was not proportionate. In addition to the negative repercussions of such a sanction on the professional career of a lawyer, the Court finds that any ex post facto review of offending oral or written submissions on the part of a lawyer must be implemented with particular prudence and moderation. While it is certainly the task of the judicial and disciplinary authorities, in the interest of the smooth operation of the justice system, to take note of, and even occasionally to penalise, certain conduct of lawyers, they must ensure that such review does not constitute for the latter a threat with a “chilling” effect that would harm the defence of their clients ’ interests. Thus, in the present case, the President of the Division of the Court of Appeal which examined the case of the applicant ’ s client had already, at the hearing, invited the applicant to moderate his remarks, and then, deeming them excessive, the Division had indicated in the operative part of its judgment that it dismissed the relevant submissions on the ground that the remarks were dishonourable ( see paragraph 16 above ). Finding this warning to be sufficient, the judges had not considered it appropriate to ask the Principal Public Prosecutor to refer the matter to the disciplinary bodies. It was only several months after the filing of the impugned pleadings in the Court of Appeal, and after that court ’ s judgment, that the said prosecutor initiated disciplinary proceedings. In the light of all the circumstances of the present case, the Court finds that by going beyond the firm and dispassionate position of the Court of Appeal and imposing a disciplinary sanction on the applicant, the authorities excessively undermined the lawyer ’ s task of defending his client. 56. In conclusion, the Court finds that there has been a violation of Article 10 of the Convention on account of the disproportionate nature of the sanction imposed on the applicant. ...
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It found in particular that the remarks in question, as they were so harsh, clearly showed some contempt for the investigating judges. However, they did not refer to the judges personally but concerned the manner in which they had carried out the investigation. The written submissions, which had a factual basis, contributed directly to the defence of the applicant’s client and did not leave the courtroom. As the applicant had already been summoned to show moderation, during the hearing in the Paris Court of Appeal, the Court found that the disciplinary sanction was not proportionate. In this case the Court also recalled that, while it was for judicial and disciplinary authorities, in the interest of the proper functioning of the justice system, to penalise certain conduct by lawyers, those authorities had to ensure that such scrutiny did not have a chilling effect that would hinder them in defending their clients’ interests.