PARTLY DISSENTING OPINION OF JUDGE RYSSDAL

I agree that it is not necessary to examine the case separately under Article 10 (art. 10) and that there was an interference with Mr Ezelin ’ s right to peaceful assembly under Article 11 (art. 11). I also consider that it was prescribed by law and pursued a legitimate aim under paragraph 2 of Article 11 (art. 11-2), namely the prevention of disorder. The central question, however, is whether this interference was necessary in a democratic society. It is in this respect that my views differ from those of the majority of the Court.

The French disciplinary code for lawyers may be different from that of other countries, especially as regards an avocat ’ s liability to disciplinary sanctions for "breach of integrity, honour or discretion" as provided for in Article 106 of the Decree of 9 June 1972 . However, States must be considered to enjoy a margin of appreciation in determining the necessity in a democratic society of the rules that govern professional behaviour and whether they have been infringed in particular cases.

Although opinions may differ as to whether the Court of Appeal ’ s reaction - confirmed by the Court of Cassation - was appropriate, I cannot say that the disciplinary sanction of a reprimand for the two professional shortcomings found in Mr Ezelin ’ s conduct went beyond the margin of appreciation left to the national authorities. It cannot be overlooked that in the applicable scale of penalties a reprimand is one of the lightest disciplinary sanctions which, in the present case, involved no restrictions on the applicant ’ s continued freedom to practise law.

I therefore conclude that there has been no violation of Article 11 (art. 11) in the present case.

DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

The European Convention does not include any rules directly applicable to professional ethics; it leaves these to the Contracting States. Obviously, the relevant national rules must be compatible with the Convention, but the Contracting States have a substantial discretion in this sphere.

Attitudes towards the conduct of members of the Bar differ from country to country. Under French rules, members of the Bar are required to observe "discretion" ( délicatesse ). Although worded differently, the same idea can be found in the legislation or professional rules of several European countries.

In my opinion, there is not the slightest doubt - in view of the facts of the case as they appear from the file (open participation in a demonstration, in which hotheads shouted or daubed on the walls of buildings insults or threats against judges and against the police, whereby he associated himself with the demonstrators; behaviour offensive to the judge who had summoned him) - that the applicant was in serious breach of the duty of "discretion" which the professional ethical rules laid on him as an avocat.

It remains to be determined whether, in the permissive society of today, a member of the Bar can still be required to behave with "discretion", as I understand it, or, to use the terms of the Convention (or of the Court ’ s case-law), whether the sanction (which was in any case a minimal one and therefore proportionate in the circumstances) imposed for behaviour contrary to the requirements of "discretion" was "necessary in a democratic society".

The majority of the Court appeared to think not; for the reasons just given, I cannot share their view.