Information Note on the Court’s case-law No. 145
October 2011
Vellutini and Michel v. France - 32820/09
Judgment 6.10.2011 [Section V]
Article 10
Article 10-1
Freedom of expression
Conviction of trade-union leaders for strident criticism of their mayor employer: violation
Facts – The applicants were the president and the general secretary of the municipal police officers’ union. An officer who was a member of that union had a dispute with the mayor of the municipality where she worked. In January and February 2006 she was disciplined by the mayor for offensive and threatening behaviour towards colleagues. Assisted by one of the applicants, she challenged the two disciplinary decisions before the administrative court. In November 2006 she filed a complaint against a number of municipal employees for wilful assault, insults and threats, and false accusations. The mayor subsequently criticised her directly in two issues of the municipal newsletter. In February 2007 she filed a complaint against the mayor himself for public insults and procuring of false evidence. The applicants then published a leaflet, distributed to the residents of the town, containing remarks which, in the mayor’s view, were clearly defamatory and were directed against him as an elected official in order to discredit him in the eyes of those residents. In March 2007 the mayor brought proceedings against the two applicants before the criminal court, which in July 2007 found them guilty of “public defamation against a citizen holding public office” and imposed fines, also awarding damages to the civil party, after ruling their evidence inadmissible. The applicants’ appeals were unsuccessful.
Law – Article 10: The applicants had made their statements, calling into question the role of an elected official in his capacity as employer, in their capacity as union officials and in connection with the professional situation of one of the union’s members. Their conviction had thus constituted an interference with the exercise of their right to freedom of expression; an interference that was prescribed by law and pursued the legitimate aim of protecting the reputation or rights of others.
The offending remarks had been of legitimate interest to the public in connection with the management of local authorities and the functioning of the services attached thereto. Accordingly, they had been made in the context of a debate of general interest, a situation in which the Convention did not generally allow for restrictions on freedom of expression. However, despite acting in their capacity as representatives of a trade union, the applicants had nevertheless been obliged to ensure that their remarks fell within the limits of that right. The mayor, who had been perfectly identifiable from the leaflet, had not however been mentioned by name. He had simply been criticised in connection with his duties, and no allegations of a private nature had been made against him. The limits of acceptable criticism were wider as regards a politician, criticised in that capacity, than as regards a private individual. Moreover, the applicants’ remarks, whilst rather harsh, had been made in the context of a very lively local debate of general interest. In that context, as for any individual who took part in a public debate, a degree of exaggeration, or even provocation, with the use of somewhat immoderate language, was permitted. In addition, political invective often spilt over into the personal sphere; such were the hazards of politics and the free debate of ideas, which were the guarantees of a democratic society. Moreover, the impugned remarks had not been offensive or hurtful to a degree that went beyond the framework of trade-union discourse.
Such an attack might nevertheless prove excessive in the absence of any factual basis. In that connection, the applicants had offered to bring evidence before the domestic courts but the offer had been refused for procedural reasons. The domestic courts had not placed the applicants’ remarks in the context of the strident debate between them and the mayor, even though the leaflet had been intended as a response to the mayor’s public accusations in a municipal newsletter, without any right of reply being afforded to the person accused or her representatives. Consequently, the applicants could not have been required to refer with any greater precision to the procedures that they mentioned, bearing in mind that they were alluding to what the mayor himself had said. The applicants did not, in their capacity as trade-union officials, have the same duty of care as that required of journalists. In any event, whilst the applicants had not complied with the procedural rules governing offers to bring evidence, they had constantly pleaded good faith and had claimed with sufficient detail that they had serious enough grounds on which to allege that their comments were true. Those comments were not therefore devoid of any factual basis. Moreover, the expressions used had not reflected any manifest personal animosity; on the contrary, they fell within the limits of admissible criticism afforded to trade-union representatives in a debate of general interest. Lastly, the applicants had been fined EUR 1,000 each and ordered to pay EUR 5,000 jointly in damages. In view of the charges, those orders had to be regarded as disproportionate. The interference with the applicants’ right to freedom of expression, in their capacity as trade-union representatives, had not therefore been necessary in a democratic society.
Conclusion: violation (six votes to one).
Article 41: EUR 4,000 to each of the applicants in respect of pecuniary damage; 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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