Case: Bono v. France
Judgement date: 15 December 2015
Topic: Protection of reputation
Aspect: Lawyers

Summary of the facts:
This case concerned a disciplinary sanction imposed on the applicant, as lawyer acting for a suspected terrorist, for remarks made in his pleadings before the Court of Appeal. He claimed that the French investigating judges had been complicit in the torture of his client by the Syrian secret services and thus sought the exclusion of statements obtained through the use of torture. The applicant complained about the disciplinary sanction imposed on him.

Summary of the Court's findings:
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.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1974 and lives in Paris.
6. The applicant is a lawyer at the Paris Bar. He acted for S.A. in criminal proceedings on a charge of criminal conspiracy for the preparation of an act of terrorism constituting one of the offences provided for in Article 421-1 of the Criminal Code.
7. In 2000 the domestic security and intelligence agency ( Direction de la surveillance du territoire – the “ DST ” ) sent an intelligence report to the Paris public prosecutor ’ s office stating that in Frankfurt the German police had dismantled a network of Islamist terrorists who were likely to be preparing attacks on French territory. In this context, one S.A., who was a suspect in criminal proceedings in France, was arrested in Damascus on 12 July 2003. The French authorities were apprised of this arrest on 18 July 2003.
8. On 1 April 2004 the investigating judges in charge of the case, in the “anti-terrorism” judicial investigation division of the Paris tribunal de grande instance, issued an international letter of request to the Syrian military authorities for the purpose of questioning S. A.
9. From 2 to 7 May 2004, one of the investigating judges, M. B., accompanied by members of the DST, went to Damascus for the execution of the letter of request.
10. During the questioning S.A. was allegedly tortured.
11. On 11 May 2004, after the file had been received in reply to the letter of request, the investigating judges issued an international arrest warrant. S.A. was extradited and remanded in custody on 17 June 2004.
12. By a decision of 15 December 2005 the investigating judge committed S.A. and two other persons to stand trial before the Paris Criminal Court on charges of participating in a criminal conspiracy for the preparation of an act of terrorism. Prior to that decision there had been no applications to the investigation division for the annulment of any investigative acts, neither by the lawyer previously assigned to S.A., nor by the prosecutor or the investigating judges ... Therefore, under Article 174 of the Code of Criminal Procedure, the parties were no longer entitled to raise grounds of nullity in respect of procedural acts or evidence, “ except where they could not have been aware of [those grounds] ”.
13. Before the Criminal Court the applicant requested in his written pleadings that documents that had been obtained, according to him, through torture by the Syrian secret services, be excluded from the file: the written “ confession ” of S. A. , the report by the Syrian secret services dated 3 May 2004 and the interview records of 30 April and 2, 3, 4 and 5 May 2004. He alleged that there had been “ complicity on the part of the French investigating judges in the use of torture against S. A. in Syria by military personnel of the secret service ” (see, for details of these pleadings, their reproduction by the Paris Court of Appeal, paragraph 15 below).
14. In a judgment of 14 June 2006 the court excluded the documents obtained through the international letter of request and sentenced S.A. to nine years ’ imprisonment. It took the view, in the light of statements by the Director of the World Organisation against Torture, a member of the French section of Amnesty International and the Secretary of the International Federation of Human Rights, called by S.A. as witnesses, and who were unanimous as to the almost systematic use of torture by the Syrian security bodies (since a military decree of 1963), that it was “likely that the statements made by S.A. in Syria, to the Palestine Section, had been given under torture, and that his confession had thus been obtained by this method”. The court continued as follows:
“Moreover, in his report on his mission to Damascus for the execution of his international letter of request of 1 April 2004 ..., M. B ., investigating judge (First Vice- President ) in charge of the investigation, specified that at the first working meeting with Syrian intelligence officials, he was told that S. A. ‘ had already been questioned on 30 April and 2 May 2004 ’ and that ‘ his interviews were continuing on the basis of the list of questions contained in the international letter of request and additional questions which he [M.B.] wanted to be put, particularly in the light of the answers already recorded ’.
However, the judge stressed that he had ‘ not been allowed to participate in the questioning of S.A. but only to follow it in real time ’. On 4 and 5 May the questioning thus continued under the same conditions as the day before.
For his part, S.A. emphasised that his entire interrogation had taken place without the French investigating judge being present.
When presented to that judge on 17 June 2004 he indicated that he was ‘ tired ’, that he ‘ wished to see a doctor immediately ’, and that he was ‘ worried about his wife and daughter ’. He subsequently described his conditions of detention in Syria and the torture to which he had been subjected during the interrogation.
As a result, the French investigating judge was not able to exercise any real control over the conditions in which S. A. was interrogated in Syria, even though he was being held in the ‘ Palestine Section ’, which was known to be a very harsh section, according to witnesses, in which many cases of torture had been reported.
It is therefore almost certain that the admissions or ‘ confession ’ of S.A. were obtained under torture and must be excluded as evidence against him and his co-defendants.
Accordingly, S.A. ’ s handwritten statement, his interview records from Syria and the report prepared by the Syrian secret services must be removed from the case file .”
15. S.A. appealed against the judgment. The applicant lodged with the Paris Court of Appeal his pleadings in defence of S.A., extending to more than eighty pages, at paragraph 5 of which he again sought the exclusion of the documents obtained under torture. To that end, he relied on Articles 3 and 6 of the Convention, as well as Articles 3 and 15 of the Convention against Torture of 10 December 1984, and referred to the reports of non-governmental organisations concerning the practice of torture in Syria and to the evidence taken at first instance. In particular, he wrote as follows :
“Page 25: ‘ it was thus blindly that the investigating judges did not want to try and avoid the torture to which Mr. [S.A.] was subjected in the hands of the Syrian secret services in Damascus. ’
Page 47: ‘ the French investigating judges allowed the Syrian secret services to torture [S.A.] without intervening, and it can even be shown that they promoted torture – this amounts to a judicial outsourcing of torture. ’
Page 68, paragraph entitled : ‘ Complicity of the French investigating judges in the use of the torture against Mr. [S.A.] in Syria by military personnel of the secret services ’.
Page 69: ‘ The investigating judges, who had felt from the beginning of the proceedings that they should be brought against Mr. [S.A.], allowed torture to be used against him by military personnel of the Syrian secret services ... They chose to accept the outsourcing of torture. ’
Page 70: ‘ the international letter of request issued by the French investigating judges provides the Syrian secret service officers with the answers to be obtained from the questions to be asked : it encourages torture. ’ ”
16. In a judgment of 22 May 2007 the Court of Appeal upheld S.A. ’ s conviction and sentenced him to ten years ’ imprisonment, after excluding the documents in question: “the defendant ’ s statements, as they had been obtained in Syria, were included in documents whose lawfulness in terms of French procedural rules and the Convention could not be guaranteed”. It rejected the applicant ’ s submissions “relating to complicity in acts of torture committed by the investigating judges and the criticisms about the conduct of the judicial investigation” as being “prejudicial to the dignity of the investigating judges and without any basis or moderation”. The judgment of the Court of Appeal indicated that its president had asked the applicant “to moderate his remarks concerning the allegations of complicity on the part of the investigating judges in the use of the torture against S. A. ( see p. 68 et seq. of the pleadings ) ”.
17. In a letter of 17 January 2008 the Chairman of the Paris Bar Association informed the public prosecutor at the Paris Court of Appeal, who had sent him a copy of the pleadings, that he did not intend to act upon this matter.
18. In a formal referral to the disciplinary body dated 4 February 2008, pursuant to Article 188 § 1 of the decree of 27 November 1991 concerning the organisation of the legal profession ... the public prosecutor asked that body to bring disciplinary proceedings against the applicant for disregarding the essential principles of honour, tactfulness and moderation governing the legal profession. He indicated the passages in the applicant ’ s pleadings which, in his view, had seriously impugned the honour of the investigating judges, namely the statements on pages 25, 47 and 68 to 70 (see paragraph 15 above). He pointed out that the criminal immunity for words spoken in court as provided for in section 41 of the Law of 29 July 1881 on the freedom of the press (“the 1881 Act”, ...) was not applicable in disciplinary matters.
19. In a decision of 30 September 2008 the Disciplinary Board of the Paris Bar Association dismissed all the charges against the applicant. It considered that his objective had been to ensure the removal from the case file of the documents which emanated from the Syrian authorities. It observed in this regard that although the practice of torture by the Syrian secret services was notorious, the investigating judges had failed to issue an international arrest warrant immediately but had, on the contrary, waited until 1 April 2004 to issue a letter of request to the Syrian military authorities, and “that letter was, according to S. A. ’ s lawyers, executed with astonishing speed”. It thus found that “ it was on this basis and in support of the request for the exclusion from the case file of the documents from the Syrian authorities that [the applicant] called into question, in the terms for which he is reproached, the conduct of the investigating judges”. The Disciplinary Board further found that the applicant should benefit from judicial immunity in so far as the impugned remarks were not unrelated to the case. Relying on the case-law of the Court of Cassation on this point ..., and on the protection under Article 10 of the Convention of the lawyer ’ s freedom of speech in court (referring to the judgment in Nikula v. Finland, no. 31611/96, ECHR 2002- II), it pointed out that the applicant ’ s impugned remarks did not constitute personal attacks on the judges, but sought to call into question the manner in which they had conducted the proceedings, and that the remarks were “obviously not unrelated to the facts of the case”. The disciplinary body finally pointed out that the applicant was justified in believing that the argument as to the procedural conduct of the investigating judges had not been without influence on the first-instance decision to exclude the Syrian statements from the case file and that he had been justified in using these arguments before the Court of Appeal, irrespective of their vitriol, whereas the raising of this issue in the court below had not even led to any reaction on the part of the prosecution.
20. On 3 October 2008 the Principal Public Prosecutor appealed against that decision.
21. In a judgment of 25 June 2009 the Paris Court of Appeal quashed the decision of the Bar Association and issued the applicant with a reprimand accompanied by disqualification from professional bodies for a period of five years. The Court of Appeal observed that the immunity of the courtroom could not be invoked in disciplinary matters. Stressing that lawyers ’ freedom of expression was not absolute, it took the view that the remarks at issue were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of S.A. ’ s statements during his interrogation, they also called into question the moral integrity of the investigating judges at a personal level. It found that the applicant “ had visibly sought to ‘ do as he pleased ’ even to the extent of harming his client (whose sentence was extended by a year by the Court of Appeal) ”. The court took the view that the accusation of complicity had been pointless in relation to the interests of his client, and gratuitous, since the judges had mentioned in a mission report the difficulties they had encountered with the Syrian authorities, who had prevented them from attending the interviews (see paragraph 14 above). The Court of Appeal pointed out that the documents in question had been excluded by the court below and that “ there was no need for [the applicant], in the interest of S. A. , to claim without any proof that the French investigating judges had been complicit in the torture of S. A .”. It concluded that the attacks were not proportionate to the aim pursued and that the impugned remarks constituted a breach of the essential principles of the legal profession, namely dignity, honour, tactfulness and moderation.
22. The applicant lodged an appeal on points of law. The Chairman of the Paris Bar Association did likewise. In his grounds of appeal, the applicant relied in particular on Articles 6 and 10 of the Convention to argue that the immunity provided for by the 1881 Act was applicable in disciplinary proceedings. He also pointed out that the fact of denouncing the shortcomings of the justice system on the basis of a letter of request issued to the Syrian secret services had been necessary for his client ’ s defence, and such denunciation could not be considered as a disciplinary offence given the absolute nature of the prohibition of torture.
23. In a judgment of 14 October 2010 the Court of Cassation declared inadmissible the appeal by the Chairman of the Bar Association on the ground that he was not a party to the proceedings. As to the applicant ’ s appeal on points of law, it was rejected in the following terms :
“However, firstly, the judgment states precisely that the provisions of sections 41 and 65 of the Law of 29 July 1881 are not applicable in disciplinary matters. Having rightly observed that, while the lawyer has the right to criticise the functioning of the justice system or the conduct of a particular judge, his freedom of expression is not absolute because it is subject to restrictions which derive, in particular, from the need to protect the reputation or rights of others and to maintain the authority and impartiality of the judiciary, the Court of Appeal found that the offending remarks were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of statements made by the suspect during interviews conducted for the execution of the international letter of request issued by the French investigating judges, but personally impugned the moral integrity of those judges, accusing them of deliberately promoting the use of torture and of being actively complicit in the ill-treatment inflicted by the Syrian investigators. Having noted that these serious accusations were both pointless in relation to the client ’ s interests and gratuitous, since the judges, in the report of their mission to Damascus, had described the difficulties they had encountered with the Syrian authorities, who had refused to allow them to attend the interviews, the court rightly inferred that the offending remarks did not fall under the protection of freedom of expression, but breached the principles of honour and tactfulness. On those grounds, without there being any lack of impartiality or any breach of the principle of the presumption of innocence, it legally justified its decision to impose on the lawyer a mere reprimand together with a temporary disqualification from membership of professional bodies and councils; ...”
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Relevant law and the Court's assessment:
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.”
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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.
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