Information Note on the Court’s case-law 191

December 2015

Bono v. France - 29024/11

Judgment 15.12.2015 [Section V]

Article 10

Article 10-1

Freedom of expression

Penalty imposed on defence counsel for accusing investigating judges of complicity in torture: violation

Facts – The applicant, who was a lawyer, acted for a terrorism suspect arrested in Syria. Through a letter of request, executed by an invest igating judge who travelled to that country in person, certain documents were obtained for the file including records of interviews allegedly conducted under torture. The applicant’s client was subsequently extradited to France.

The applicant asked that th e records which, according to him, had been obtained through the use of torture by the Syrian secret services should be excluded from the file, and argued in that connection that the French investigating judges had been complicit in the torture in Syria. T he court excluded the documents obtained as a result of the international letter of request, but found the applicant’s client guilty. On appeal the applicant again sought the exclusion of certain documents and reiterated his comments about the judges. The Court of Appeal granted the exclusion request but rejected his submissions about the judges’ conduct and reproached him for using excessive language. The Chairman of the Bar informed the Principal Public Prosecutor, who had sent him a copy of the appeal su bmissions, that he did not intend to take the matter further. The prosecutor, however, formally called upon the Bar Association body to bring disciplinary proceedings against the applicant. The Bar Council’s disciplinary board cleared the applicant of all charges, but the prosecutor appealed. The Court of Appeal then overturned the Bar Council’s decision and issued the applicant with a reprimand, together with his disqualification from professional bodies for five years. The applicant and the Chairman of th e Bar appealed on points of law but were unsuccessful.

Law – Article 10: The sanction complained of had constituted an interference with the applicant’s right to freedom of expression. It was provided for by law and pursued the legitimate aims of protectin g the reputation or rights of others and maintaining the authority of the judiciary, to which the investigating judges in the present case belonged.

The remarks in question, being particularly harsh, clearly showed some contempt for the investigating judge s. The proper functioning of the courts would not be possible without relations based on consideration and mutual respect between the different stakeholders in the justice system, and first and foremost between judges and lawyers. The applicant’s submissio ns accusing the investigating judges of being complicit in torture were not necessary to fulfil the aim pursued, namely to have statements obtained by torture excluded, especially as the first-instance judges had already accepted that request. Nevertheless , it had to be ascertained whether the disciplinary sanction had struck a fair balance in the context of the proper administration of justice.

The offending remarks had been made in a judicial context, because they had been included in written submissions filed by the defence in the Court of Appeal. Their aim was to obtain, before the defence on the merits, the exclusion by that court of statements made by the applicant’s client under torture in Syria. The remarks relied on by the prosecutor did not refer t o the judges personally but concerned the manner in which they had carried out the investigation. The applicant had complained in particular about their decision to issue an international letter of request when they should have known that the interrogation methods of the Syrian secret services did not respect human rights and in particular breached Article 3 of the Convention. His accusation thus focused on the judges’ procedural choice. Moreover, the national courts had accepted the request for the withdra wal from the case file of the procedural documents drawn up in breach of Article 3, even though that ground of nullity had not been raised during the investigation, neither by the investigating judges themselves nor by the public prosecutor. In that proced ural context, the pleadings had contributed directly to the applicant’s defence of his client. The remarks amounted more to value judgments, since they referred essentially to a general assessment of the investigating judges’ conduct during the investigati on. But they had a factual basis. In that connection, while the investigating judge had not been able to take part in the interrogation, he had followed it simultaneously, in Damascus. It had been based on the questionnaire in the international letter of r equest and the additional questions to which he required answers, in addition to those already recorded. The methods of the Syrian police were notorious, as shown by the testimony submitted in the domestic proceedings and more generally by all the internat ional reports on the subject. Moreover, the applicant’s criticisms did not leave the courtroom because they were contained in his written submissions. They were not therefore capable of damaging or threatening the proper functioning of the courts or the re putation of the judiciary in the minds of the general public. However, neither the Court of Appeal nor the Court of Cassation had taken that contextual aspect into account, nor had they considered the limited audience to which the remarks had been addresse d.

Having regard to the foregoing, the disciplinary sanction inflicted on the applicant had not been proportionate. In addition to the negative repercussions of such a sanction on the professional career of a lawyer, any ex post facto scrutiny of words spoken or written by a lawyer called for particular prudence and moderation. In the present case, the President of the Court of Appeal bench before which the applicant’s client had appeared had already asked the applicant during the hear ing to use more moderate language, and then, considering his remarks excessive, the court had mentioned in the operative part of the judgment that his submissions on this point were rejected on the ground that they were dishonourable. Considering the repro ach at the hearing to be sufficient, those judges had not seen fit to ask the Principal Public Prosecutor to initiate a disciplinary procedure. The prosecutor had not referred the matter to the disciplinary body until several months after the filing of the pleadings and the Court of Appeal’s judgment. In the light of the circumstances as a whole, going beyond the firm and measured position of the Court of Appeal by inflicting a disciplinary sanction on the applicant, the authorities had excessively interfer ed with the lawyer’s mission of defence.

Conclusion : violation (unanimously).

Article 41: EUR 5,000 in respect of non-pecuniary damage.

(See also Morice v. France [GC], 9369/10, 11 July 2013, Information Note 184 ; and Nikula v. Finland , 31611/96, 21 March 2002, Information Note 40 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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