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THE FACTS

The applicant, Mrs Isabelle Coutant, is a French national who was born in 1953 and lives in Paris. She is a member of the Paris Bar. She was represented before the Court by Mr J.-L. Chalanset, a lawyer practising in Paris. The French Government (“the Government”) were represented by their agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The “Chalabi” trial, so named after one of the main defendants, Mohamed Chalabi, who was represented by the applicant, took place from 1 to 27 September 1998. In that case approximately 600 people, mainly of Algerian origin, had been arrested in so-called “Islamist” circles. Eventually, 138 people, including Mr Chalabi, were committed for trial in the Paris Criminal Court on charges of conspiring to commit acts of terrorism. The trial was held in a gymnasium at Fleury-Mérogis Prison, which was transformed into a courtroom for the occasion.

The organisation of the trial triggered strong protests, from the Paris Bar, inter alia, against “the organisation of a mass trial apparently incompatible with respect for the rights of the defence”. Many lawyers decided to withdraw from the trial altogether.

On 8 September 1998, on her client’s behalf, the applicant issued a press release, part of which was reproduced by the Agence France-Presse news agency in a report.

The press release read as follows:

“For Mohamed Chalabi

Through what is happening in the new law court at Fleury-Mérogis Prison, the public are finally beginning to realise the infamy of the procedures used by the special sections of the French justice system under the pretext of fighting terrorism.

Purely for the media and for political and demagogic reasons, many people have been branded terrorists whose political opinions differ from those of the powers that be.

But above and beyond what some people are learning in the final, public phase of the court hearings, the public must be told what goes on in secret behind the scenes of the political police and the special judges of the 14^th section, whose motto – “Terrorise the terrorists” – was coined by Charles Pasqua. At the same time, he declared “I will cover up any blunders”.

The hunt was on and the so-called war on terror had a free hand to use terrorist measures against targets designated by those in power, for their own political interests or those of their foreign allies.

Police raids, for example, using methods worthy of the Gestapo and the Militia, at all hours of the day and night, against whole families, including children, even planting incriminating evidence on them (like the documents the DST slipped into Kraouche’s briefcase).

Not to mention brutality and torture during four days of police custody, under the supervision of judges from the special section.

Or holding people in complete solitary confinement, for months or years at a time, without any concrete charges against them other than being “capable of ...”, practically without any court hearing, much less any confrontation with their accusers, who in France remain anonymous, and the courts consider that normal!

And the trials themselves, a pure formality: the outcome is a foregone conclusion as the so-called terrorists are obviously a threat to public order; the volume of the case files shows how serious the accusations are, even if they contain nothing but charges fabricated by the investigating judges of the special section, in the form of questions designed to prompt replies that suit their theories.

In the face of such Islamophobic feeling, people with Arab blood naturally take pride of place among the obvious targets, with the aggravating circumstance that they belong to the Muslim faith and are therefore presumed guilty of the offence of holding terrorist religious opinions.

Mohamed Chalabi, a mujahid, believes only in the Tawhid, but he is entitled to demand justice, like the other victims of police and judicial terrorism.

Mr Alain Marsaud, a founding member and former chief of the 14th special section, considers the groundswell of revolt against the terrorist methods used by his teams as “an insult to justice in our country”.

More than an insult, the practices and the manipulation of the media by the special anti-terrorist sections of the police are a crime against public and individual freedoms.

It is high time France put a stop to this infamy.

Paris, 8 September 1998
Isabelle Coutant Peyre

Barrister

for Mohamed Chalabi”

On 8 October 1998 the Minister of the Interior, considering some of these remarks defamatory vis-à-vis the national police, lodged a complaint with the Paris public prosecutor for public defamation of a public authority, relying on section 48 (1) of the Freedom of the Press Act of 29 July 1881 (“the 1881 Act”).

The applicant alleged that as she, the accused, was a lawyer, and having regard to the exceptional circumstances of the trial in question, the courts should be broad in their interpretation of the immunity provided for in section 41 of the 1881 Act and allow her the benefit of it. She also argued that because of her profession it was her duty to denounce practices incompatible with the Convention and, that being so, that her press release had been issued in the context of the type of political debate and discussion of ideas accepted in the Court’s case-law.

In a judgment of 2 May 2000, the Paris Criminal Court decided that the offending statements were not covered by the immunity provided for in section 41 of the 1881 Act and, stressing the defamatory nature of the applicant’s remarks vis-à-vis the national police, found her guilty of public defamation of a public authority, an offence provided for in and punishable under sections 29 (1), 30, 42, 43, 47 and 48 of that Act. The applicant was fined 30,000 French francs (FRF) (approximately 4,575 euros (EUR)) and ordered to pay the token sum of one franc to the Ministry of the Interior. The court also ordered the publication, in three newspapers of the civil party’s choice, of a statement announcing the applicant’s conviction. The court’s findings read as follows:

“It is precisely because it is the lawyer’s duty, in exercising the rights of the defence, to denounce facts or a system in conflict with human rights publicly and forcefully, and because his function makes him particularly credible in the eyes of his fellow citizens, that a lawyer cannot afford, without proof or reservations, to voice extremely serious specific accusations against an administrative body – the National Police – essential to the democratic edifice, one of whose tasks is to protect people against terrorist activities;

In the instant case, however, [the applicant] did not confine herself to a general criticism of the judicial and police institutions or even the functioning of the fight against terrorism, but in a specific set of proceedings, made extreme accusations against the police of allegedly odious and inhuman practices, without being able to produce a shred of evidence; that being so, her plea of good faith cannot be accepted and the offence with which she stands charged is established ...”

The applicant appealed. In support of her appeal she relied, inter alia, on the legitimacy of the debate on the means used in the “fight against terrorism”, her duty as a lawyer “to speak out” and the principle of freedom of expression enshrined in Article 10 of the Convention.

In a judgment of 21 June 2001, the Paris Court of Appeal upheld the judgment concerning the applicant’s guilt but reduced the fine to FRF 10,000 (about EUR 1,525). The court declared, inter alia:

“Considering that denouncing the conditions of organisation of the trial of her client, Mohamed Chalabi, and others, and criticising the proceedings as a whole constituted a manifestly legitimate aim for [the applicant], a lawyer; she could perfectly well have fully attained that aim by developing arguments, even laced with harsh criticisms, without having to draw inconsiderate, insulting parallels;

Considering that in making extremely serious and ignominious accusations, in a particularly offensive manner, against the police responsible for fighting terrorism, in making the worst kind of comparisons to stir up indignation, in deliberately casting aspersions on a whole body of public servants, [the applicant] deliberately expressed herself in partial and vindictive terms, without the slightest caution or moderation; she cannot be accorded the benefit of good faith.”

The applicant lodged an appeal on points of law. In her pleadings she relied on Article 10 of the Convention, alleging, inter alia, that the impugned conviction had violated her freedom of expression.

In a judgment delivered on 3 December 2002 the Court of Cassation dismissed the appeal. With regard to the applicant’s first submission, invoking the immunity provided for in section 41 (3) of the 1881 Act, it held that “as the impugned press release cannot be considered as a written document adduced before a court, the Court of Appeal applied the Law correctly”. Concerning her second submission, it declared:

“Given that, in rejecting the defence submission based on the provisions of the Convention and denying the lawyer the benefit of good faith, the judges stated that while denouncing the conditions of organisation of the trial concerning her client and criticising the proceedings as a whole constituted a legitimate aim for [the applicant], she could also have developed arguments, even laced with harsh criticisms, without having to draw inconsiderate, insulting parallels; that the same judges considered that in making extremely serious and ignominious accusations against the police responsible for fighting terrorism, and making comparisons with the Gestapo and the Militia of the Vichy regime the lawyer deliberately expressed herself “in partial and vindictive terms”, without the slightest caution or moderation, casting aspersions on the whole police force;

Given that in the light of those considerations the Court of Appeal justified its decision;

First of all, when a lawyer does not have the benefit of the immunity provided for in section 41 of the Act of 29 July 1881, he is not absolved, when expressing himself on his client’s behalf, of the caution and circumspection necessary to the acceptance of the defence of good faith;

And secondly, while freedom of expression is protected by Article 10.1 of the European Convention for the Protection of Human Rights, it may, by virtue of the second paragraph of Article 10, be subject to restrictions and penalties in the cases determined by the Act of 29 July 1881; that is the purpose of section 30 of that Act, which provides for a penalty necessary in a democratic society for the prevention of disorder and the protection of the reputation of the public authorities, in this case the national police;”.

B.  Relevant domestic law

The relevant provisions of the Freedom of the Press Act of 29 July 1881, as amended, in force at the material time, read as follows:

Section 29 paragraph 1

“It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be a punishable offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the impugned speeches, shouts, threats, written or printed matter, placards or posters.”

Section 30

“Defamation of the courts, the army, navy or air force, State institutions and public authorities by any of the means listed in section 23 shall be punishable by a term of imprisonment of one year and a fine of FRF 300,000 or one of those penalties only.”

Section 41 sub-sections 3 et seq.

“Neither the accurate reporting in good faith of court proceedings nor statements made or documents produced before the courts shall give rise to proceedings for defamation, insult or contempt.

However, the courts examining the merits of the case may order the withdrawal of the insulting, offensive or defamatory statements and order those responsible to pay damages.

Acts of defamation alien to the case may, however, give rise to prosecution or to civil action by the parties when the court has left that course open and, in any event, to civil action by third parties.”

COMPLAINT

The applicant alleged that her criminal conviction under the Press Freedom Act of 29 July 1881 constituted an unjustified interference with the exercise of her right to freedom of expression.

THE LAW

The applicant alleged that her criminal conviction under the Press Freedom Act of 29 July 1881 constituted an unjustified interference with the exercise of her right to freedom of expression, guaranteed by Article 10 of the Convention. That provision 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.”

The Government acknowledged the interference with the applicant’s right to freedom of expression. However, they submitted that it had been necessary and proportionate to the legitimate aim pursued.

They considered that the applicant’s allegations had been particularly serious and excessive and had had no factual basis. According to the Government, the applicant could not, in good faith, maintain that the impugned press release had constituted a defence strategy when she had had the possibility to air her views on the conditions of the trial inside the courtroom or to denounce them outside the courtroom in severe terms, but without defaming the State authorities responsible for fighting terrorism.

The Government also pointed out that while the Court gave lawyers the benefit of the guarantee enshrined in Article 10, it had also acknowledged the need for them to show a certain restraint in the fulfilment of their duty, which the applicant had failed to do in the present case.

Moreover, the Government emphasised the modest size of the fine imposed on the applicant and observed that her conviction had not prevented her from freely practising her profession.

The applicant maintained that the interference with her exercise of her right to freedom of expression was not justified under paragraph 2 of Article 10.

She submitted, first of all, that the impugned statement had been published in the context of her client Mr Mohamed Chalabi’s defence, on the occasion of legal proceedings that had been unanimously criticised both by human rights organisations and by the Paris Bar Council. In her opinion the conditions in which the trial had taken place fully justified the method of defence used and the content of the impugned comments.

Furthermore, the applicant considered that it was legitimate for her to alert public opinion to the conditions in which the accused in the Chalabi trial had been arrested and remanded in custody. She submitted that protecting the reputation of the national police should not effectively prevent debate on possible malfunctions in that institution from taking place. In any event, the applicant pointed out that it had not just been a matter of criticising the police as a body of public servants, but more generally one of taking a critical look at the French Government’s policy on fighting terrorism and the methods used by the services concerned.

Referring to the case-law of the Court, and in particular the judgment pronounced in the Nikula v. Finland case (judgment of 21 March 2002, Reports of Judgments and Decisions 2002-II), the applicant pointed out that restriction of a defence counsel’s freedom of expression might be accepted as necessary in a democratic society only in exceptional cases. It was true that, unlike in the Nikula case, the impugned comments had not been made in the courtroom, but they had fallen within the applicant’s defence of her client and therefore under the protection of Article 10.

For the above reasons the applicant considered that her conviction amounted to a restriction of her freedom of expression that was neither necessary in a democratic society nor proportionate to the aim of protecting the reputation of the national police. In her submission the only aim of the impugned conviction, following which the prosecution had referred the matter to the Bar Council, had been to prevent her from practising her profession.

The Court notes that the applicant was sentenced by the criminal courts to a fine of FRF 10,000 (about EUR 1,525) for public defamation of a public authority. The applicant therefore clearly suffered “interference by public authority” with the right enshrined in Article 10 of the Convention; indeed, that is not contested.

Such interference violates the Convention if it does not meet the requirements of paragraph 2 of Article 10. It must therefore be determined whether it was “prescribed by law”, pursued one or more legitimate aims under that provision and was “necessary in a democratic society” to achieve them.

Like the domestic courts, the Court considers that the interference was “prescribed by law”, namely by sections 29 (1) and 30 of the 1881 Freedom of the Press Act as worded at the material time, and that it pursued at least one of the legitimate aims mentioned by the Government, namely the protection of the reputation of others, in this case the police in charge of the fight against terrorism (see, mutatis mutandis, Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, § 59). It remains to be determined whether the impugned interference was “necessary in a democratic society”, a matter on which the parties disagree.

The Court points out that according to its case-law it is empowered to give the final ruling on whether a “restriction” is compatible with freedom of expression as protected by Article 10. The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national courts but rather to review under Article 10 the decisions they delivered in the exercise of their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” and whether it was “proportionate to the legitimate aim pursued”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts (see, most recently, Lindon, Otchakovsky-Laurens and July v. France [GC], judgment of 22 October 2007, § 45, with other references). In the case of alleged violations of freedom of expression, the Court pays particular attention to the content of the comments held against the applicants and the context in which they made them, notably when the fight against terrorism is involved (see, among other authorities, Doganer v. Turkey, judgment of 21 October 2004, § 22).

In the instant case the Court agrees that the “Chalabi” trial was unusual in terms of its magnitude and the material conditions in which it was held. It notes that fifty-odd defence lawyers refused to attend the hearings, and takes note of the criticisms voiced by, inter alia, human rights organisations and members of the judiciary, such as the President of the Paris Bar Association, who denounced the “mass trial”.

However, the Court further notes that the applicant chose, one week after the start of the trial, to express herself through a press release, part of which was then taken up in an AFP news report. She did this, she says, to denounce the questionable conditions of her client’s arrest and the fact that it was impossible for her to defend him properly in such a trial. Now, there is nothing in the file before the Court to indicate that, in the circumstances, this was the only means of expression open to the applicant to avail herself of the arguments she intended to put forward in her client’s defence. On the contrary, the Court notes first of all that the applicant presented no grounds of nullity during the investigation, and secondly that in the impugned press release she went beyond the bounds of her client’s criminal defence to launch a general diatribe against the methods of the police and judicial services involved in the fight against terrorism.

The Court therefore sees no contradiction with its case-law in the findings of the domestic courts that the impugned statements, made public outside the court buildings, did not constitute a “defence” before a court in the procedural sense, and that the applicant could not expect to enjoy the immunity provided for in section 41 of the 1881 Act. Not only is it largely a matter of interpreting domestic law, and therefore one over which the national courts have sole jurisdiction, but this reasoning is in keeping with the Court’s own case-law, including, from the reverse angle, its judgment in the Nikula v. Finland case (cited above), where it found a violation of the applicant’s right to freedom of expression because the critical remarks she (a defence lawyer) had made against a public prosecutor “were confined to the courtroom” and were “strictly limited to [his] performance as prosecutor in the case against the applicant’s client”.

The Court also notes that the domestic courts, in particular the Court of Appeal, found that certain passages in the press release insulted the honour and reputation of the police, notably those denouncing the use of “terrorist methods”, “police raids using methods worthy of the Gestapo and the Militia”, or “brutality and torture during four days of police custody, under the supervision of judges from the special section”. The Court notes that the Court of Appeal, after carefully analysing each of the impugned passages, found that the applicant had failed to substantiate her case, that she could not be accorded the benefit of good faith, and that she had expressed herself in partial and vindictive terms, without the slightest caution or moderation.

Overall, the Court considers that the examination of the press release by the courts of first and second instance produced a clear appraisal of the content of the remarks published in it, particularly in regard to the public criticisms of the same trial issued by the Bar Association or by other public figures. Like the domestic courts it considers that certain expressions used by the applicant overstepped the limits required for the proper discussion of ideas.

In the Court’s view, the excessive nature of the impugned statements and the lack of factual substantiation are aggravated by the fact that they were made by a lawyer. Indeed, while the legal profession enjoys the benefit of the guarantees embodied in Article 10, the Court has pointed out on a number of occasions that the special status of lawyers gives them a central position in the administration of justice, as intermediaries between the public and the courts. That position explains the usual restrictions on the conduct of members of the Bar. Regard being had to the key role of lawyers in this field, it is legitimate to expect them to contribute to the proper administration of justice and thus to maintain public confidence therein (see Amihalachioaie v. Moldova, no. 60115/00, § 27, ECHR 2004-III; Nikula, cited above, § 45; and Schöpfer, cited above, §§ 29-30, with other references). In the instant case the Court considers that the applicant failed to show the moderation and dignity expected of representatives of her profession (see Casado Coca v. Spain, judgment of 24 February 1994, § 46).

The applicant’s remarks were aimed specifically at the State services responsible for the fight against terrorism. The Court reiterates that the authorities in a democratic system must tolerate criticism, even when it may be considered provocative or insulting (see, amongst other authorities, Castells v. Spain, judgment of 23 April 1992, p. 23, § 46), and that the limits of acceptable criticism may in some circumstances be wider with regard to civil servants exercising their powers than in relation to private individuals (see Nikula, cited above, § 48). Nevertheless, it remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith (see, amongst other authorities, Castells, cited above, loc. cit., and Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1568, § 54).

In the instant case, considering the insulting character of the applicant’s statements for the national police and the fact that they were published in the press, the Court considers that it was legitimate to impose criminal sanctions on the applicant, especially as the fine, although not negligible, cannot be considered excessive. In the opinion of the Court, this moderate penalty, which moreover had no impact on her professional activity, did not constitute a disproportionate response to the applicant’s statements.

In sum, having regard to the content of the impugned press release, the fact that the applicant is a lawyer and the modest size of the fine, the Court considers that the impugned interference was proportionate to the aim pursued, and that the domestic courts gave “relevant” and “sufficient” reasons to justify the interference.

It follows that the applicant’s complaint is manifestly ill-founded and must be dismissed in conformity with Article 35 §§ 3 and 4 of the Convention. That being so, the application of Article 29 § 3 of the Convention should be terminated and the application dismissed.

For the above reasons the Court, by a majority,

Declares the application inadmissible.