5.  The applicant was born in 1955 and lives in Lunel.
6.  The applicant, a lawyer at the Montpellier Bar since 1978, acted for M.B., who was a civil party in the context of a judicial investigation opened in Nîmes following the death of his minor son. The latter was killed on the night of 2 March 2003 by F.C., a gendarme who used his firearm.
7.  In an indictment and partial discharge order of 26 June 2007 the investigating judge committed F.C. for trial before the Gard Assize Court on a charge of manslaughter. The investigating judge did not accept as justification either self-defence within the meaning of Articles 121 or 122 of the Criminal Code, or the use of firearms in accordance with the legislation or regulations under Article 174 of the Decree of 20 March 1903 (see, as regards those provisions, Guerdner and Others v. France, no. 68780/10, §§ 37 and 41 et seq., 17 April 2014). The judge also committed two of F.C.’s colleagues for trial before the Assize Court for having lied in their statements to him, given under oath.
8.  On 26 November 2007 the Investigation Division of the Nîmes Court of Appeal upheld the order but ordered that the two gendarmes charged with giving false testimony stand trial before the Nîmes Criminal Court rather than the Assize Court.
9.  The trial at the Assize Court began on 28 September 2009 and lasted for five days. The advocate-general requested a five-year prison term for the accused. It is not clear from the information available to the Court whether or not the sentence was to be suspended.
10.  In a judgment of 1 October 2009 the Assize Court acquitted F.C.
11.  Immediately after the verdict, at the exit from the courtroom, the journalists reporting on the case for, among others, France Bleu, RTL and the Midi Libre put questions to the parties’ lawyers, and in particular to the applicant. Some of the coverage was streamed live on the Internet. The applicant first stated as follows:
“... the verdict is received by the victims and by the community to which they belong, it is patently obvious that this is disastrous in terms of social peace.”
12.  Asked by one journalist whether it was a “licence to kill”, he replied as follows:
“Well, I’m not sure you can say that. It’s not necessarily a licence to kill. It’s a refusal to face up to the reality in this country and to the existence of a two-speed society; not just a two-speed justice system, but actually a two-speed society at all levels. People are living in tower blocks cut off from city centres. For some, prosecution ends in conviction while others are acquitted. The entire social system needs to be revamped: we’ve turned into a real American-style society which is on the brink of civil war.”
13.  When asked by an RTL journalist “But weren’t you expecting this verdict? Without really commenting on the verdict, weren’t you afraid this would happen?”, the applicant made the following statement:
“Yes, of course. I always knew it was a possibility. With a white – all-white – jury on which not all communities are represented, combined with, let’s face it, a very weak prosecution and a trial that was conducted in an extremely biased fashion, the door was wide open for an acquittal, it’s no surprise.”
14.  These last remarks were the subject of a letter from the Principal Public Prosecutor at the Montpellier Court of Appeal, dated 6 October 2009, to the chairman of the Montpellier Bar, seeking the latter’s opinion “in view of the outcry caused by this statement in judicial circles in Nîmes”.
15.  On 1 December 2009, after the chairman of the Bar had found that the applicant’s remarks were not offensive and did not go beyond the bounds of free criticism of a court decision, the Principal Public Prosecutor informed him of his decision to initiate disciplinary proceedings against the applicant under Article 188 of the Decree of 27 November 1991 on the organisation of the legal profession (see paragraph 29 above).
16.  On 11 January 2010 the applicant gave evidence to the rapporteur of the Montpellier Bar Council. In particular, he stressed the need to put his remarks in context, as this was a sensitive case that had led to rioting in the working-class district where the victim had lived. He highlighted the length of the investigation, the fact that the gendarme had not been held in pre-trial detention and the disjoinder of the proceedings for false testimony concerning members of the gendarmerie patrol present on the day of the events, as well as the tensions during the five days of the hearing before the Assize Court. He denied making an accusation of racial and xenophobic bias, arguing that he had merely noted the absence of certain communities making up the French nation, in whose name criminal justice was administered. He added that he had not targeted the Assize Court, the prosecution or the defence.
17.  The President of the Assize Court and the advocate-general who had participated in the proceedings refused a request from the rapporteur to hear evidence. However, the rapporteur was able to hear evidence from one of the lawyers for the acquitted gendarme, Mr N.-P. The latter confirmed the atmosphere of heightened pressure and tension throughout the trial, which had also been experienced by the lawyers of the civil parties. He observed that when the verdict had been delivered there had been a tremendous outcry, with the cameramen rushing to capture the scene. All the lawyers had been very emotional and the applicant had no doubt used an unfortunate turn of phrase, intending only to point to the lack of representation of certain communities in the criminal-justice system.
18.  In parallel, in a judgment of 1 March 2010, the Nîmes Criminal Court sentenced the other two gendarmes to a one-month suspended term of imprisonment and a fine of 1,000 euros (EUR) for giving false testimony under oath. The court noted in particular that the false statements had been repeated over time, including before the investigating judge, and had been liable to influence the judge’s decision in that they concerned essential circumstances pertaining to the charges or at least circumstances of relevance to the case.
19.  On 19 March 2010 the rapporteur sent her disciplinary investigation report to the chairman of the disciplinary board, the chairman of the Bar and the Principal Public Prosecutor.
20.  On 2 April 2010 the applicant was summoned to appear before the disciplinary board on the basis of Article 183 of the above-mentioned Decree of 27 November 1991 (see paragraph 29 below), “for having, in the public lobby outside the courtroom of the Nîmes Court of Appeal, seriously breached the essential ethical principles of the legal profession, and specifically those of discretion and moderation, by publicly making the following comments accusing the court and jury of racist and xenophobic bias”.
“I always knew it was a possibility. With a white – all-white – jury on which not all communities are represented ..., the door was wide open for an acquittal, it’s no surprise.”
21.  The disciplinary board of the Bar associations attached to the Montpellier Court of Appeal, sitting in plenary session, held its hearing on 21 May 2010. Reiterating his statements, the applicant relied in particular on Article 10 of the Convention, arguing that his remarks had been made in the context of the defence of his client’s interests as a civil party and within the ten-day period during which the Principal Public Prosecutor could appeal against the acquittal.
22.  On 11 June 2010 the disciplinary board delivered its decision. It found that the applicant’s conduct had not been culpable and acquitted him. The disciplinary board considered that the remarks had to be placed in the dual context of the full statement and the circumstances in which they had been made. The words “a white – all-white – jury” had been supplemented by “on which not all communities are represented”, and had not accused the jury of racial or xenophobic bias but, together with other factors, had stated the obvious truth that “the social background of jurors contribute[d], even unconsciously and without their integrity and intellectual honesty being in question, to their decision, which necessarily ha[d] an element of subjectivity”. The disciplinary board stressed that the statements had been devoid of personal animosity and had reflected “ideas, opinions and information apt to contribute to a discussion or debate of public interest ... as part of a broader commentary on the decision of the Assize Court ...”; this came “within the scope of protection of the right to freedom of expression under Article 10 of the Convention”. The disciplinary board further considered that the impugned statements had formed part of the defence of the interests of the applicant’s client, since only the Principal Public Prosecutor could appeal against the acquittal verdict. They had therefore been intended “to stimulate a public debate apt to influence the Principal Public Prosecutor’s thinking ... and his decision whether or not to appeal against that verdict”. Lastly, the disciplinary board noted that the statements had been “made orally ... during an on-screen interview. In the interests of efficiency and given the brevity of the broadcasts and the speaking time, it [had been] necessary to use concise or even ‘shocking’ and caricaturised language”.
23.  The Principal Public Prosecutor appealed against the disciplinary board’s decision. He requested that the applicant be barred from practising for three to six months.
24.  In his pleadings before the Court of Appeal the applicant argued that his remarks had been directed at the jury rather than at the reputation, integrity and intellectual honesty of its members (who, moreover, had not brought any proceedings against him), based on the sociologically indisputable fact that the jury did not represent the diversity of the entire national community although its decision necessarily involved an element of subjectivity. His role as a lawyer had not ended with the delivery of the verdict, since it was up to the Principal Public Prosecutor to decide whether to lodge an appeal. Lastly, the applicant regretted that the prosecutor had chosen to prosecute him for comments that formed part of a debate of public interest and were not contrary to public policy, rather than appealing against the acquittal decision as his client and the public had hoped.
25.  The Court of Appeal held, in a judgment of 17 December 2010, that the facts constituted a breach of the duties of discretion and moderation. It found as follows:
“Outside the courtroom, lawyers are not protected by immunity [of judicial speech] and the appropriate degree of their freedom of speech is no longer assessed in relation to the requirements of the exercise of the rights of the defence, but only in relation to freedom of expression.”
The Court of Appeal noted that the statements had been made in public, inside the court building, but before the press and not in the course of judicial proceedings; at that juncture, the verdict had been known and the hearing was over. In the court’s view, the cries from the public at the end of the hearing had been directed at the justice system, and the applicant had had a duty to exercise caution.
The Court of Appeal went on to find that, since all the members of the jury were French citizens, references to the colour of their skin did not relate to their social background or nationality but rather to their racial background. The term “white”, used in a repetitive and affirmative manner and without the intention to open a discussion or reflection on the matter, had racial connotations which cast aspersions and suspicion on the integrity of the jurors. The court further found as follows:
“As the members of the jury form part of the Assize Court, composed of three professional judges and nine lay jurors, this amounts to discrediting the entire court and consequently the judiciary itself, by disregarding the other three members of the Assize Court and especially the collegial spirit whose very purpose is to avoid bias and afford enhanced procedural guarantees.”
In the Court of Appeal’s view, the remarks did not form part of the exercise of the rights of the defence, in the absence of any mention of the possibilities of appeal against the decision of the Assize Court. “In view of the nature and degree of the offence”, the Court of Appeal imposed “the lightest possible disciplinary penalty – a warning” on the applicant.
26.  The applicant lodged an appeal on points of law. In addition to the defence arguments already presented before the disciplinary body and the Court of Appeal, he argued that the latter had wrongly held that the statement had targeted the judiciary and the entire Assize Court, as the words “... combined with – let’s face it – a very weak prosecution and a trial that was conducted in an extremely biased fashion ...” had not been mentioned in the indictment (see paragraphs 13 and 20 above).
27.  The advocate-general at the Court of Cassation concluded in his opinion that the judgment should be quashed on the basis of Article 10 of the Convention. In particular, he stated that the remarks had not disclosed any attack or personal animosity but rather had constituted, in the immediate aftermath of a highly contested acquittal, an irrepressible outburst based on the factual observation of the jury’s composition and echoing more general debates within society. Among those debates he mentioned the courts’ treatment of police officers implicated in criminal proceedings, stating as follows:
“We need only recall the judicial ramifications of two cases that caused a sensation and attracted widespread media coverage at the time of the proceedings resulting in the acquittal of gendarme C: [after] the pursuit and death of Zyed B and Bouna T in 2005 [triggered riots for weeks, the decision of the Paris Court of Appeal on 27 April 2011 to dismiss the case revived the debate], and the death of Ali Z in 2009. Following those events, in a report published on 2 April 2009, Amnesty International expressed concern about an increase in police violence and a lack of judicial action against the perpetrators. In addition to the ‘low rate of prosecution of alleged perpetrators’, according to the non-governmental organisation, there was a certain ‘laxity’ in the sentences imposed, leading to real impunity for the offences.”
28.  In a judgment of 5 April 2012 the Court of Cassation dismissed the applicant’s appeal in the following terms:
“Firstly, the complaint alleging that the disciplinary body exceeded the scope of its jurisdiction is inadmissible for failure to produce the indictment.
Secondly, having stated explicitly that, outside the courtroom, lawyers were not protected by the immunity conferred by section 41 of the Law of 29 July 1881, the Court of Appeal found that the impugned remarks had racial connotations casting aspersions and suspicion on the integrity of the jurors and thus amounted to a breach of the duties of moderation and discretion. It provided a legal basis for its decision merely to issue a warning to the lawyer, without laying itself open to any of the other complaints raised in the ground of appeal.”