Hate Speech, Indecency / Obscenity
Pussy Riot v. Russia
Closed Expands Expression
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The Fifth Section Chamber of the European Court of Human Rights (ECtHR) found a violation of Article 10 (freedom of expression) in a case involving the conviction of a lawyer due to his statements on the verdict he was representing. The Court recognized that the statements for which the Applicant was convicted were a form of critique directed towards the jury and the magistrates of the Assize Court who issued an acquittal verdict. The Court noted that the statements were made within the context of a public debate regarding the functioning of the criminal justice system in a highly publicized case. The Court observed that while the applicant’s statements may have been capable of causing offense, they were ultimately a subjective judgment based on factual grounds and fell within the scope of the applicant’s defense of his client. Considering these factors, the Court concluded that the applicant’s conviction constituted an excessive infringement on his right to freedom of expression, rendering it unnecessary in a democratic society.
The Applicant in question is a lawyer registered with the Montpellier Bar since 1978. He defended Mr. B, a civil party in a judicial investigation following the death of his minor son, who was killed by a gendarme using his firearm in 2003. [para. 5-6] The investigating judge referred the gendarme to the Assize Court for intentional violence causing death without intention, while two other gendarmes were dismissed for giving false testimony.
On November 26, 2007, the Nîmes Court of Appeal upheld the referral for the gendarmes accused of false testimony but not for the gendarme accused of causing the death. The Assize Court acquitted the gendarme in a judgment in October 2009. After the verdict, the Applicant made statements to the press expressing concern about the verdict’s impact on social peace and criticizing the absence of representation of certain communities in the jury. One of the statements the Applicant made regarding his expectation of the verdict was
“Yes, of course. I always knew it was possible. A white jury, exclusively white, where the communities are not all represented with, it may well be said, an extremely soft accusation, debates conducted in an extremely biased manner, the road to acquittal was a royally open road, this is no surprise.”
These remarks were considered controversial, and the Attorney General initiated disciplinary action against the Applicant. The President of the Bar considered the comments not outrageous, and the disciplinary investigation proceeded. During the disciplinary hearing, the Applicant argued that his remarks were part of the defense of his client’s interests and protected under Article 10 of the Convention. The Disciplinary Board acquitted the Applicant, stating that the remarks were part of a broader commentary on the court’s decision and fell within the protection of freedom of expression. However, the public prosecutor appealed against the decision of the Disciplinary Board and requested a ban on practicing for three to six months against the Applicant.
Before the Court of Appeal, the Applicant contended that his remarks were aimed at the jury and not at their reputation, probity, or intellectual honesty. He claimed that his remarks highlighted the lack of diversity in the jury and criticized the public prosecutor for taking legal action against him instead of appealing the acquittal decision. [para. 24] The Court of Appeal held that the Applicant’s remarks breached the duties of delicacy and moderation. It emphasized that lawyers are not protected by immunity outside the courtroom and that freedom of speech should be assessed in relation to freedom of expression. The Court found that the Applicant’s remarks, made in public at the courthouse after the hearing, cast racial suspicion on the jurors and discredited the entire judicial institution. The Court of Appeal considered the remarks as not part of the rights of the defense and imposed the lightest disciplinary penalty of a warning against the Applicant. [para. 25]
The Applicant appealed before the Court of Cassation contending that the Court of Appeal wrongly interpreted his remarks as targeting the judicial institution and the entire Assize Court. In a judgment, the Court of Cassation dismissed the Applicant’s appeal, considering that the Court of Appeal was justified in finding a breach of the duties of moderation and delicacy in the remarks, which cast racial suspicion on the jurors and their probity. The Court of Cassation upheld the warning against the lawyer. [para. 28]
The ECtHR delivered a unanimous judgment finding a violation of Article 10 of ECHR. The primary issue for the ECtHR’s determination was whether the Applicant’s conviction amounted to a disproportionate interference with his right to freedom of expression under Article 10 of the ECHR.
The Applicant contended that the interference with his freedom of expression was unjustified as his remarks did not attack the integrity or honor of the jury members. The Applicant asserted that lawyers’ freedom of expression, even during critical moments of court proceedings, can contribute to improving the judicial system. [para. 36] Subsequently, the Applicant contended that his remarks were part of a public debate on the functioning of the judiciary, deserving high protection for freedom of expression. The opinion of the Advocate General supports this view. [para. 37]
Furthermore, the Applicant contended that his remarks about the jury’s composition reflect an objective reality and should not be analyzed in isolation. As he made them as a description of a prevalent situation, addressing societal divisions and the need to avoid fragmentation. [para. 39] The Applicant asserted that his remarks were sociological and political, not racial or racist. The assumption that the jury’s skin color determines the verdict, highlighting that the reference to a “white jury” was just one element among others suggesting the acquittal was expected. [para. 40] The applicant contended that his remarks must be understood in the context of the trial’s exceptional tension. As the lawyer for the civil party, he had no right to challenge jury members. The Applicant sought to influence the public prosecutor’s representative’s intentions, considering the trial’s course and the absence of appeal options for the plaintiff. [para. 41]
The Government contended that the interference with the applicant’s freedom of expression was justified by law, aiming to protect the reputation and rights of the jury members and ensure the authority and impartiality of the judiciary. [para. 42] The Government acknowledged the broader public interest in the functioning of the judiciary and the trial and contended that the applicant’s remarks constituted value judgments that questioned the jury’s impartiality based on their “community” membership, lacking solid factual basis and potentially undermining public confidence in the justice system. [para. 44] The Government observed the applicant should have shown more restraint in responding to the journalist’s questions, considering the tense context. [para. 45] The Government asserted that if the applicant wanted to influence the public prosecutor’s decision, there were better ways to do so without engaging in vindictiveness. [para. 46] The Government highlighted the mild disciplinary penalty imposed on the applicant and argue that there was no violation of Article 10 of the Convention, considering the content of the remarks, their dissemination, and the context. [paras. 47-48]
The ECtHR acknowledged that the conviction constituted an interference with the freedom of expression of the individuals involved. Such interference would be a violation of Article 10 unless it was in accordance with the law, pursued a legitimate aim as stated in paragraph 2, and was deemed necessary in a democratic society to achieve those aims. [para. 49] Applying the three-fold proportionality test, the ECtHR found that the interference with freedom of expression met the first two prongs of the test. Firstly, the Court determined that the interference was prescribed by law, specifically Article 183 of French Law on Legal Profession, as acknowledged by the national courts. [para. 50] Secondly, the Court acknowledged that the legitimate aim of the interference was to protect the reputation or rights of others, as argued by both the applicant and the government. The Court agreed with the applicant that the necessity of the interference should be assessed in relation to this aim, noting that the reference to the skin color of the jurors could directly target their reputation or rights. [paras. 51-52]
On the determination of whether the interference was “necessary” in a democratic society to achieve the legitimate aims pursued, the Court made reference to Handyside v The United Kingdom, (1976) and Morice v France, (2015) to reaffirm general principles relevant to Article 10. [para. 53] In the instant case, the Court distinguished between statements made inside the courtroom during the hearing and those made outside by a lawyer. It determined that the disputed remarks did not fall under “facts of the hearing” but were the statements of a lawyer expressing his opinion outside the courtroom. [para. 55] The Court referred to Morice and established that a lawyer’s defense of a client may extend to the media under certain conditions. These include not seriously prejudicing the courts, participating in a debate of general interest about the functioning of justice, staying within the boundaries of permissible comment supported by factual basis, and utilizing available legal remedies in the interest of the client. [para. 56]
Considering the factors from the Morice case, the Court examined the applicant’s status as a lawyer and his contribution to a debate of general interest. The Court noted that the case involved a highly publicized matter concerning police officers and had a significant impact locally and nationally. [para. 58] The Court recognized the legitimate interest of the public in being informed about criminal proceedings and the functioning of the judiciary. It concluded that the applicant’s remarks were part of a debate of general interest, and it was the responsibility of national authorities to protect freedom of expression while maintaining a restricted margin of appreciation. [Bédat v. Switzerland, (2016)] [para. 61]
The Court, on the evaluation of the nature of the contentious remarks, found that the Applicant’s statements were a value judgment rather than an accusation of systematic partiality. [para. 62-63] The Court acknowledged that the applicant’s use of the phrase “white, exclusively white” when referring to the jury implies an ethnic characteristic that is controversial and can be associated with historical injustices and discrimination. However, the Court did not believe that the applicant intended to accuse the jurors of racial prejudice. The Court contextualizes the applicant’s remarks, which also included a mention of a jury where not all communities are represented and a commentary on the social impact of the verdict. The Court concludes that this interpretation is based on the overall context of the applicant’s remarks, which called for a reevaluation of the entire social system. [Remli v. France, (1961); Gregory v. United Kingdom, (1997); and Sander v. United Kingdom, (2000)] [para. 64]. The Court considered that the value judgment was based on a sufficient factual basis, aligning with national debates and the social and political context of the case. [para. 67-68] [Paturel v. France, (2005) and Boykanov v. Bulgaria, (2016)]
Examining the particular circumstances of the case, the Court took into account the overall context, including the high social tension surrounding the trial and media coverage. The Court observed that the contested remarks had been made as part of a debate on the functioning of the criminal justice system, in the context of media coverage of the case. It acknowledged that the applicant’s remarks were made immediately after the verdict in a rapid oral exchange, without an opportunity for reformulation or withdrawal. [para. 69] The Court agreed with the Court of Appeal that the remarks applied to the entire Assize Court, potentially discrediting the judicial institution. However, it concluded that the facts of the case did not establish a violation of the authority and impartiality of the judiciary justifying the applicant’s conviction. [para. 70-72].
In conclusion, the Court held that the conviction imposed on the applicant unjustly infringed upon his right to freedom of expression. Therefore, the Court held a violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment reinforces and expands the principles of freedom of expression by emphasizing the importance of allowing public debate and criticism in matters of public interest, even if such remarks may be controversial or potentially shocking. It recognizes that value judgments and criticisms based on factual grounds within the framework of criminal defense are protected expressions and should not be subjected to disproportionate interference.
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