Information Note on the Court’s case-law 217
April 2018
Ottan v. France - 41841/12
Judgment 19.4.2018 [Section V]
Article 10
Article 10-1
Freedom of expression
Defence counsel reprimanded for statement made to the press on leaving court after the verdict: violation
Facts – The applicant, a lawyer, was acting for the father of a minor who had been killed by a gendarme using his service firearm in March 2003. The death had given rise to riots in the working-class neighbourhood where the victim – a member of a community of foreign origin – had lived. The gendarme, who had been committed for trial before an assize court on charges of manslaughter, was acquitted in October 2009 after tense court proceedings. In the minutes following delivery of the verdict the applicant was questioned by the journalists who were present in view of the trial’s sensitive and high-profile nature. Invited to state whether he had expected such a verdict, the applicant replied “I always knew that it was possible. A white, exclusively white, jury, in which not all communities are represented ... the door was wide open to acquittal, it’s not a surprise.”
In December 2010 the court of appeal issued a warning to the applicant. His appeal on points of law was dismissed in June 2012.
Law – Article 10: The disciplinary penalty imposed on the applicant amounted to an interference with the exercise of the right to freedom of expression, had been prescribed by law and pursued the aims of protecting the reputation or rights of others and maintaining the authority and impartiality of the judiciary.
The applicant’s statement had been made in response to a question from a journalist, when the acquittal verdict had already been delivered and the hearing before the assize court had ended. In consequence, it was not part of “conduct in the courtroom”, in respect of which a lawyer enjoyed judicial immunity.
The Court examined the applicant’s complaint on the basis of the criteria adopted by it in Morice v. France [GC] (29369/10, 23 April 2015, Information Note 184), namely: (i) the applicant’s status and the role played by his statement in the task of defending his client; (ii) contribution to a debate on a matter of public interest; (iii) the nature of the impugned remarks; (iv) the specific circumstances of the case; and (v) the nature of the sanction imposed.
(i) The impugned statement had been part of an analytical approach that could possibly have contributed to persuading the principal public prosecutor to lodge an appeal against the acquittal and thus giving the applicant an opportunity to continue his client’s defence before an enlarged assize court of appeal.
(ii) The applicant’s remarks, which concerned proceedings before an assize court sitting with a lay jury and the conduct of a criminal trial relating to the use of firearms by the police, were part of a debate on a matter of public interest in the context of a case which had received wide media coverage. In consequence, the national authorities had a duty to ensure a high level of protection of freedom of expression, with a particularly narrow margin of appreciation being afforded to them.
(iii) The applicant’s comments did not accuse the jurors of racial prejudice. They were a general assertion with regard to the potential link between the composition of the jury and the gendarme’s acquittal. They were akin to a general criticism of the functioning of the criminal-justice system, social relations, the question of diversity in jury selection and the link between jurors’ origins, their decision-making and their impartiality. In addition, the applicant had referred only to the possibility and not to its certainty, which was closer to a critical discussion than to an accusation of systematic partiality, something that would have been incompatible with the respect due to the justice system. Although the impugned statement was capable of shocking, it was nonetheless a value judgement which had had a sufficient factual basis, was in line with discussions at national and international level and had a sufficiently close connection with the facts of the case, having regard to its social and political context.
(iv) The applicant’s statements had to be placed in the tense context in which the verdict had been delivered. They had applied to the assize court as a whole, the professional judges and the jury. However, the facts of the case did not support the conclusion that the applicant had attacked the authority and impartiality of the judiciary in such a manner as to justify his conviction.
(v) The penalty imposed on the applicant was the lightest possible in disciplinary proceedings, namely a warning. Nevertheless, this was not a trivial matter for a lawyer. Lastly, even when the sanction was the lightest possible, that fact could not in itself suffice to justify the interference with the applicant’s freedom of expression.
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In the light of the foregoing, the applicant’s conviction had thus to be regarded as disproportionate interference with his right to freedom of expression. It had not therefore been necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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