PARTLY DISS ENTING OPINION OF JU D GE YUDKIVSKA

The present case concerns the balance between a lawyer ’ s freedom of speech and the need to uphold the authority of the judiciary ; the importance of such balance cannot be over-estimated . Assessing the competing interests in this case , I am unable to share the opinion of my colleagues who have found the interference with the applicant ’ s freedom of expression to be proportionate .

In my opinion , the majority in the Chamber did not take full account of a certain number of important facts.

The first issue is that of the specific role of lawyers . In addition to the need to uphold the authority of the judicia ry , lawyers have an obligation to “defend their clients ’ interests zealously” [1] .

The applicant was furious to learn that the judge had not deemed it necessary “to register ... and transmit ... to her successor” an item of evidence that he regarded as important . He referred the matter to the Minister of Justice and gave an interview to a newspaper . The majority in the Chamber shared the opinion of the domestic judicial authorities , namely that the expressions used by the applicant reflected his “ animosit y” and that there had been no reason to criticise the judge so harshly, especially as the case had already been withdrawn from her .

Responsibility for drawing attention to the shortcomings of judicial investigations and proceedings, in the interest of the courts themselves, lies precisely with the lawyers . There is no doubt that the expressions used by a lawyer must be acceptable , without seeking to humiliate or offend those involved in judicial proceedings, including the judge . As the aim of such comments by a lawyer is not to offend but to shed light on any shortcomings – an aim that , in my opinion , was pursued in the present case – it is then very difficult for me to find sufficient grounds on which to limit such expression .

The comments made by the lawyer were not directed at the judge in person but were critical of her conduct during the proceedings in question . Thus, the applicant ’ s remarks to the effect that she had displayed “conduct which [was] completely at odds with the principles of impartiality and fairness” and that there had been some “ conniv a nce ” between her and the public prosecutor of Djibouti, as recognised by the majorit y , were value judgments based on an undeniable fact : the failure to transmit the cassette and the presence of a letter from the Djibouti prosecutor in side its cover ( see paragraph 102 of the judgment ).

Accordingly, the comments in question, even though they contain a certain degree of exaggeration, should not be regarded as an unwarranted personal attack but rather as an interpr e tation of a matter of great public importance [2] .

The interview with the applicant was part of the public debate concerning this high-profile case . The matter of public interest – the proper administration of justice – concerned him above all in his capacity as lawyer for the victims, who , as indicated in the Mor v . France case, “had a clear interest, both for their defence and for the dispassionate and independent judicial investigation in respect of their complaint [ ; and ] giving an interview to the press was a legitimate part of [the ir ] defence, given that the case had aroused interest in the media and among the general public” [3] .

For that reason I am unable to accept the majority ’ s arguments to the effect that the applicant ’ s criticism was exaggerated because judge M. was “ no longer handling the case when the applicant made his statements about her working methods in the case” (paragraph 105) .

The applicant ’ s criticism precisely concerned judge M. ’ s conduct a fter the transmission of the case to another judge, and in particular the fact that part of the evidence had not been passed on . According to the applicant, that omission could have undermined the ongoing judicial investigation and he considered it necessary to alert the Minister of Justice and public opinion.

The majority also found fault with the applicant for having given the impugned interview “just one day after contacting the Minister of Justice, without waiting for a response to his request” ( see paragraph 106) . However, the referral of the matter to the Minister of Justice and the interview in the newspaper clearly had different aims . The aim of the first was to trigger disciplinary proceedings against the judge, that being a procedural remedy available to a lawyer in respect of shortcomings on the part of the judiciary . The aim of the second action was to draw the attention of the general public to failings in the judicial investigation concerning this well-known case . I do not believe that one can find fault with a lawyer who has procedural remedies by which to make good any shortcomings in judicial proceedings, whether he uses them ( as in the present case ) o r no t , for having prompted a public debate , as those two paths lead in different directions . In addition, any disciplinary sanctions imposed on a judge will not necessarily be known to the public, even though clear failings could be seen in the judge ’ s work in the present case . In any event, a lawyer ’ s mission is, in the very interest of the judicial system , to use his best endeavours to ensure that the judicial investigation is conducted objective ly and impartial ly . As the Court pointed out in Kyprianou [4] : “For the public to have confidence in the administration of justice they must have confidence in the ability of the legal profession to provide effective representation”.

The principle of fair justice encompasses the right to be assisted by an independent lawyer who discharges his professional duties without excessive restriction or interference . The possibility of freely expressing his opinion is an indispensable condition for a lawyer to be able to fulfil his principal professional duty , the defence of his client ’ s interests . Indeed, the lawyer ’ s speech – arguments and persuasions, whether oral or written – is his main resource . As my honourable colleague , Judge Casadevall, has written on this subject : “ Speech ! The sole weapon ( together with the pen or the keyboard ) – and a very simple but nevertheless formidable one – at the lawyer ’ s disposal when ... he is defend ing a party to proceedings” [5] .

The possibility of filing a complaint with a disciplinary body is not really an appropriate means of expression when it comes to a lawyer ’ s freedom of speech . Moreover , public debate as to a problem arising in judicial proceedings is necessary in a democratic society .

I t is clear that any criticism by a lawyer must be assessed in a very stringent manner, for the public has more confidence in the comments of a lawyer who has inside knowledge of the case than, for example, those of journalists reporting on a trial in the media . But it would not be rational to leave the possibility of criticism only to “outside” observers , for a wall of silence imposed on professionals in relation to a trial that is important for public opinion would discr edit the court in the public eye more than the criticisms emanating from those professionals . It is precisely the lawyers who appear in the case before the court, and who have the requisite qualification to see the faults and defects in the proceedings, that the public count up on to receive information . To turn court proceedings in to a closed forum where one should not “ air one ’ s dirty washing ” would, in my opinion, affect the image of the judicial system more than explicit criticism , provided, of course, that it does not become offensive or purely speculati ve . With that in mind, I do not think that the expressions used by the applicant can be regarded as “unfounded attacks” [6] .

Lastly , the lawyer ’ s conviction for making value judgments appears disproportionate . The very existence of criminal proceedings has a chilling effect ; lawyers defending their clients ’ rights should not have to fear prosecution on that account .

Having regard to the foregoing, I have reached the conclusion that, in the present case, the applicant ’ s rights under A rticle 10 of the Convention were not duly upheld .