DISSENTING OPINION OF JUDGES CAFLISCH AND PASTOR RIDRUEJO

1. The applicant in the present case is a defence lawyer who, at a public hearing before a Finnish court, accused prosecutor T. of “blatant abuse in respect of the presentation of evidence”, of procedural tactics designed “to make a witness out of a co-accused so as to support the indictment”, of “trumped-up charges”, of “deliberate abuse of discretion”, of “role manipulation” and, to sum up, of “breaching his official duties and jeopardising legal security” (see paragraph 10 of the judgment). These are accusations of professional misconduct and, indeed, dishonesty levelled at prosecutor T. Yet, at the end of a long journey through the domestic courts, the main sanction – a fine – was waived, and all the applicant was required to do was to pay court costs and damages to the prosecutor.

2. The Court's majority finds that Finland has violated Article 10 of the Convention, pointing out, in particular, that the State's margin of appreciation in matters covered by this provision is a narrow one, also in cases where the conduct of counsel in court is involved (see paragraph 46 of the judgment), and that it should primarily be up to counsel themselves to decide what it is appropriate to say, so as not to inhibit their attitude by the “chilling effect” of possible penalties (see paragraphs 54-55 of the judgment).

3. Article 10 of the Convention protects the freedom of expression. In its second paragraph it specifies that the exercise of that freedom carries duties and responsibilities and may be subjected to limitations if they are prescribed by law and are “necessary in a democratic society” to meet certain objectives, such as “the protection of the reputation or rights of others” and “maintaining the authority and impartiality of the judiciary”, to which defence counsel are expected to contribute (see Schöpfer v. Switzerland , judgment of 20 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1052-53, § 29). In other words, restrictions may be imposed on the exercise by counsel of their freedom of expression in court and outside, but they must be proportionate and appropriate to meet the aim pursued by them, that is, protection of the rights of others and the judiciary – the latter encompassing the dignity of the judicial process – without crippling the freedom guaranteed by Article 10.

4. Turning to the case at hand, it is therefore necessary to weigh the interests protected by the measures complained of against those of the applicant.

5. Clearly the accusations made by the applicant in open court were of some gravity. They amounted to stating, not only that prosecutor T. had acted wrongly – which, in and of itself, was legitimate – but also that he had abused his functions and acted dishonestly. This is one of the worst things

to say about a public official, magistrate or not. Not only does it mean that the magistrate is unfit to discharge his/her duties and, possibly, to fill other posts; it also taints the reputation of the judiciary. In other words, the interests protected by the measure are of considerable importance.

6. It is also evident, however, that counsel must enjoy considerable latitude in criticising prosecution strategies and in developing his/her own. But this latitude cannot be viewed as a blanket permission to engage in personal attacks impugning the probity of a prosecutor or other public officials. The applicant's attacks seem far more extreme than they were in Schöpfer , cited above, where the Court found no violation – a finding that cannot be explained simply by the fact that the attacks were made in public and not, as in the present case, in court at a public hearing (see paragraph 52 of the judgment). They certainly were damaging to the individual concerned, and equally damaging to the dignity of the judicial process.

7. The two sets of interests described must now be weighed against the impugned measures which, in the course of the national judicial proceedings, were whittled down to the mere payment of damages and costs (see paragraph 18 of the judgment). No mention was made in the criminal records. Thus it could hardly be argued that the decision complained of was such as to jeopardise the applicant's future career.

8. While one may agree or disagree with the outcome of the proceedings on the national level, it seems to us that the measure taken, as it finally emerged from the decision of the Finnish Supreme Court, was justified when weighing the interests of prosecutor T. and of the judiciary against those of the applicant, considering, in particular, that the latter could have made exactly the same points on behalf of her client without using excessive language.

9. We therefore conclude that, in the case at hand, a reasonable relation of proportionality existed between the interests involved and the measures taken. Accordingly, Article 10 of the Convention has not been violated.