Information Note on the Court’s case-law No. 104
January 2008
Coutant v. France - 17155/03
Decision 24.1.2008 [Section III]
Article 10
Article 10-1
Freedom of expression
Imposition of a fine on a lawyer for issuing a press statement criticising “the abusive methods used by special police units on the pretext of fighting terrorism”: inadmissible
The trial known as the “Chalabi” trial, after one of the accused, whom the applicant, a lawyer, represented, triggered strong protests, inter alia from the Bar Council, that the organisation of a mass trial was incompatible with respect for the rights of the defence. On behalf of her client, the applicant published a press release, part of which was included in an Agence France‑presse (AFP) dispatch, in which she objected to “the abusive methods used by special police units on the pretext of fighting terrorism”. The Minister of the Interior lodged a complaint with the public prosecutor for public defamation of a public authority, based on the Freedom of the Press Act (“the 1881 Act”). The applicant alleged that as she, the accused, was a lawyer, and in view of the exceptional circumstances of the trial in question, the courts should be broad in their interpretation of the immunity provided for in the 1881 Act and give her the benefit of it. She further argued that, as a lawyer, it was her duty to decry practices at variance with the Convention, and that her press release had therefore contributed to the type of political debate and discussion of ideas accepted in the case-law of the Court. The Criminal Court decided that the statements were not covered by such immunity, emphasising their defamatory nature towards the national police. It found her guilty as charged and fined her 30,000 French francs (FRF) (about 4,575 euros (EUR)), and ordered her to pay one symbolic 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 her conviction. The applicant appealed, relying, 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. The Court of Appeal upheld the judgment concerning the statement of guilt but reduced the fine to FRF 10,000 (about EUR 1,525). The applicant appealed to the Court of Cassation, relying on Article 10 of the Convention and alleging in particular that the impugned conviction had interfered with her freedom of expression. The Court of Cassation dismissed the appeal. Concerning immunity, it considered that as the impugned press release could not be regarded as a document produced before a court, the Court of Appeal had correctly applied the law. It also found that the lawyer had deliberately expressed herself in a partial and vindictive manner, without caution or moderation, casting aspersions on the whole police force.
Inadmissible: The applicant’s sentencing by the criminal courts to a fine for public defamation of a public authority had constituted an interference by the public authorities with the right protected by Article 10 of the Convention. That interference had been prescribed by law and pursued a legitimate aim, namely the protection of the reputation of others – in this case the police authorities responsible for combating terrorism. As to whether it had been necessary in a democratic society, the Court agreed that the “Chalabi” trial had been unusual in terms of its magnitude and the material conditions in which it had been held. Fifty-odd defence lawyers had refused to attend the hearings, and criticisms had been voiced by, inter alia, human rights organisations and members of the judiciary. However, the applicant had chosen, one week after the start of the trial, to express herself through a press release, part of which had been included in an AFP dispatch, deploring the objectionable conditions of her client’s arrest and the fact that it was impossible to defend him in the course of a fair trial. There was no evidence, however, that under the circumstances this mode of expression had been the only means open to the applicant of making her case for the defence. On the contrary, the applicant had first of all presented no ground of nullity during the investigation and, secondly, in the impugned press release she had overstepped the bounds of her client’s defence in the criminal proceedings in order to make general accusations against the methods used by the police and the judiciary in the fight against terrorism. The Court accordingly saw no contradiction with its case-law in the findings of the domestic courts that the impugned comments, voiced outside court premises, did not constitute a defence in the procedural sense, presented before a court, and the applicant could therefore not claim the benefit of the immunity provided for in the 1881 Act. Furthermore, the domestic courts, and in particular the Court of Appeal, had found that certain passages in the press release had sullied the honour and the reputation of the national police, particularly those accusing them of using “terrorist methods”, of carrying out “raids using methods worthy of the Gestapo and the militia”, or of “brutality and torture during four days of police custody, under the supervision of judges from the special section”. The examination of the press release by the courts of first and second instance had made it possible to evaluate clearly the tenor of the published statements, in the light, for example, of the criticisms of the same trial voiced publicly by the Bar Council and other public figures. Certain expressions the applicant had used had overstepped the limits required for the simple discussion of ideas. The excessive nature of the offensive wording and the lack of factual evidence to support the accusations were aggravated by the fact that they were the work of a lawyer. The applicant had not displayed the moderation and the dignity expected of representatives of her profession. Her words had been aimed specifically at State authorities responsible for combating terrorism. The authorities of a democratic State were required to tolerate criticism, even if it might be regarded as provocative or insulting, and the limits of acceptable criticism could, in certain cases, be wider for civil servants acting in an official capacity than for private individuals. However, it remained 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 such remarks or to defamatory accusations devoid of foundation or formulated in bad faith. Considering the insulting nature of the applicant’s statements vis-à-vis the national police and the fact that they had been disseminated to the public via the press, the imposition of a criminal penalty on her had been legitimate, especially as the fine imposed, although not negligible, could not be considered excessive. The modest penalty, which moreover had had no repercussion on the applicant’s professional activity, had not been a disproportionate response to the applicant’s remarks. Accordingly, having regard to the tenor of the offending press release, the applicant’s profession as a lawyer and the moderate fine imposed, the Court found the impugned interference proportionate to the aim pursued and considered that the domestic courts had given relevant and sufficient reasons to justify it: manifestly ill-founded.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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