DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I have not voted with the majority for the following reasons.

I consider that the majority has confined itself, as the Commission did, to the issue of Article 11 (art. 11). There was a second aspect, however.

1. As regards freedom to demonstrate, and interpreting Article 11 § 2 (art. 11-2), it is not clear that the minimal sanction imposed after the event, a purely moral sanction, had an effect such as to place an obstacle in the way of freedom to demonstrate.

For the rest, the majority has not, in my opinion, given sufficient consideration to the margin-of-appreciation/proportionality ratio in the case (see, inter alia, the Handyside , Müller and Others and Markt Intern cases).

2. The second aspect was the one raised by the Agent of the French Government in the memorial and at the hearing: can the State organise the relations between the judiciary and the Bar as regards professional ethics so as to be able to judge the behaviour of officers of the court from the point of view of the discretion required of members of the Bar and of the judiciary, whether on the occasion of a demonstration or in relation to any other isolated incident?

If so, are the measures taken as a result of the disciplinary proceedings and of the provisions of domestic law compatible with the Convention from the point of view of the margin-of-appreciation/ proportionality ratio?

I have not been able to find any precise answer to these two questions in the Court ’ s reasoning.

On the first point, the majority has not, in my view, explained its conclusion that a subsequent sanction could be sufficient to deter the person concerned from participating in another demonstration at a later stage. That being the case, it would in any event have been necessary to express a view on the question of proportionality: at what point did such a subsequent sanction become disproportionate? The Court could have adopted an approach based on its reasoning in the Albert and Le Compte v. Belgium case in determining the threshold of applicability of Article 6 (art. 6) in relation to civil rights and obligations. Moreover, was the contested sanction intended to be deterrent or merely symbolic?

The requirement that the interference found to be lawful be proportionate in relation to the aim of public interest presupposes a direct ratio between the elements considered. Where the Court assesses this ratio, it does so generally in the light of the margin of appreciation left to the States; however, I do not find in the Court ’ s reasoning in the present judgment these usual criteria, either with regard to the pressing social need or in relation to necessity in a democratic society. It is the major consideration of the freedom to demonstrate on which the Commission and the Court concentrated in particular. No criticism under the Convention was directed at the conduct of the authorities concerning the demonstration itself; the Court interpreted Article 11 (art. 11) from the point of view of the a posteriori sanction.

In so far as the Court states that Article 10 (art. 10) is to be regarded as a lex generalis in relation to Article 11 (art. 11), lex specialis , with the result that it is not necessary to take into consideration Article 10 (art. 10) separately, it should be noted that paragraph 2 of Article 10 (art. 10-2) provides as follows:

"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."

A similar notion is to be found in an analysis of proportionality.

In paragraph 52 of the judgment the Court referred to the need to strike a just balance so as to avoid discouraging individuals from demonstrating their beliefs; in paragraph 53 it is said that the freedom to take part in an assembly or demonstration cannot be restricted unless the person concerned has acted reprehensibly. By implication this reasoning also presupposes the assessment of proportionality or the examination of what is reprehensible as the point of reference; this was not expressly stated.

It is indeed true that the scope of the judgment is limited to the case before the Court and by the fact that the review carried out by the Court of the right to participate freely in a demonstration absorbed the examination of the other problems. The Court in its summary of the facts observed that no obstacles had been placed in the way of the demonstration despite its controversial nature and that no criminal proceedings came to trial, the criminal investigation having been terminated by a general discharge order, which was not appealed against.

On another point the reasoning of the judgment may appear questionable where the majority rejects the Government ’ s arguments concerning the refusal to give evidence (Article 109 of the Code of Criminal Procedure), taking the view that the summons to appear as a witness was the consequence of the demonstration. The requirements of Article 109 apply irrespective of the classification of the facts preceding the summons by the judge. It would have been preferable in this connection to draw attention to the specific position of lawyers and the relevant practice in France on this matter.

It also seems to me to be regrettable that the majority did not refer to the margin of appreciation of the State in such a field, based on the second paragraphs of Articles 10 and 11 (art. 10-2, art. 11-2). If it had done so, the Court would no doubt have cited its usual case-law, under which a margin is accorded to States to a greater or lesser extent depending on the Articles and cases in question.

It could have been concluded that as far as judge/avocat relations and disciplinary proceedings were concerned (equation = conduct of the person concerned: the severity of the sanction), the margin of appreciation could be at least as broad as that accorded in the Handyside and Markt Intern cases. In any event the question of proportionality necessarily arose and had to be analysed and defined, which it was not.

Since the Court, agreeing on this point with the Commission, did not deal directly (see paragraph 33) with the problem raised concerning the judge/avocat relationship with reference to Articles 106 and 107 of the Decree of 9 June 1972 and Article 8 of the Act of 15 June 1982 with regard to the oath, the judgment leaves open the question of the compatibility of these provisions with the Convention. The Bar Council had also taken account of the above-mentioned provisions because in point two of the operative part of its decision it reminded the whole of the Bar "of the traditional rules of good behaviour and sound judgment in all activities in which their status as avocats [might] be involved".

There is therefore a paradox which may make the Court ’ s reasoning appear contradictory. In so far as disciplinary sanctions are made conditional on the finding of punishable or reprehensible conduct, the authorities are indirectly encouraged to take decisions of a criminal nature, whereas it is the French tradition precisely for the prosecuting authority in minor cases to leave the matter to be dealt with in disciplinary proceedings under Article 106.

The Court, in its majority, like the Commission, showed the importance which it attached to the right to demonstrate, but did the case under examination provide an appropriate occasion for expressing this principle?