COUTANT v. FRANCE
Inadmissible
The applicant, Mrs Isabelle Coutant, is a French national who was born in 1953 and lives in Paris. She is a member of the Paris Bar. She was represented before the Court by Mr J.-L. Chalanset, a lawyer practising in Paris. The French Government (“the Government”) were represented by their agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The “Chalabi” trial, so named after one of the main defendants, Mohamed Chalabi, who was represented by the applicant, took place from 1 to 27 September 1998. In that case approximately 600 people, mainly of Algerian origin, had been arrested in so-called “Islamist” circles. Eventually, 138 people, including Mr Chalabi, were committed for trial in the Paris Criminal Court on charges of conspiring to commit acts of terrorism. The trial was held in a gymnasium at Fleury-Mérogis Prison, which was transformed into a courtroom for the occasion. The organisation of the trial triggered strong protests, from the Paris Bar, inter alia, against “the organisation of a mass trial apparently incompatible with respect for the rights of the defence”. Many lawyers decided to withdraw from the trial altogether. On 8 September 1998, on her client’s behalf, the applicant issued a press release, part of which was reproduced by the Agence France-Presse news agency in a report. The press release read as follows: “For Mohamed Chalabi Through what is happening in the new law court at Fleury-Mérogis Prison, the public are finally beginning to realise the infamy of the procedures used by the special sections of the French justice system under the pretext of fighting terrorism. Purely for the media and for political and demagogic reasons, many people have been branded terrorists whose political opinions differ from those of the powers that be. But above and beyond what some people are learning in the final, public phase of the court hearings, the public must be told what goes on in secret behind the scenes of the political police and the special judges of the 14th section, whose motto – “Terrorise the terrorists” – was coined by Charles Pasqua. At the same time, he declared “I will cover up any blunders”. The hunt was on and the so-called war on terror had a free hand to use terrorist measures against targets designated by those in power, for their own political interests or those of their foreign allies. Police raids, for example, using methods worthy of the Gestapo and the Militia, at all hours of the day and night, against whole families, including children, even planting incriminating evidence on them (like the documents the DST slipped into Kraouche’s briefcase). Not to mention brutality and torture during four days of police custody, under the supervision of judges from the special section. Or holding people in complete solitary confinement, for months or years at a time, without any concrete charges against them other than being “capable of ...”, practically without any court hearing, much less any confrontation with their accusers, who in France remain anonymous, and the courts consider that normal! And the trials themselves, a pure formality: the outcome is a foregone conclusion as the so-called terrorists are obviously a threat to public order; the volume of the case files shows how serious the accusations are, even if they contain nothing but charges fabricated by the investigating judges of the special section, in the form of questions designed to prompt replies that suit their theories. In the face of such Islamophobic feeling, people with Arab blood naturally take pride of place among the obvious targets, with the aggravating circumstance that they belong to the Muslim faith and are therefore presumed guilty of the offence of holding terrorist religious opinions. Mohamed Chalabi, a mujahid, believes only in the Tawhid, but he is entitled to demand justice, like the other victims of police and judicial terrorism. Mr Alain Marsaud, a founding member and former chief of the 14th special section, considers the groundswell of revolt against the terrorist methods used by his teams as “an insult to justice in our country”. More than an insult, the practices and the manipulation of the media by the special anti-terrorist sections of the police are a crime against public and individual freedoms. It is high time France put a stop to this infamy. Paris, 8 September 1998 Isabelle Coutant Peyre Barrister for Mohamed Chalabi” On 8 October 1998 the Minister of the Interior, considering some of these remarks defamatory vis-à-vis the national police, lodged a complaint with the Paris public prosecutor for public defamation of a public authority, relying on section 48 (1) of the Freedom of the Press Act of 29 July 1881 (“the 1881 Act”). The applicant alleged that as she, the accused, was a lawyer, and having regard to the exceptional circumstances of the trial in question, the courts should be broad in their interpretation of the immunity provided for in section 41 of the 1881 Act and allow her the benefit of it. She also argued that because of her profession it was her duty to denounce practices incompatible with the Convention and, that being so, that her press release had been issued in the context of the type of political debate and discussion of ideas accepted in the Court’s case-law. In a judgment of 2 May 2000, the Paris Criminal Court decided that the offending statements were not covered by the immunity provided for in section 41 of the 1881 Act and, stressing the defamatory nature of the applicant’s remarks vis-à-vis the national police, found her guilty of public defamation of a public authority, an offence provided for in and punishable under sections 29 (1), 30, 42, 43, 47 and 48 of that Act. The applicant was fined 30,000 French francs (FRF) (approximately 4,575 euros (EUR)) and ordered to pay the token sum of one franc to the Ministry of the Interior. The court also ordered the publication, in three newspapers of the civil party’s choice, of a statement announcing the applicant’s conviction. The court’s findings read as follows: “It is precisely because it is the lawyer’s duty, in exercising the rights of the defence, to denounce facts or a system in conflict with human rights publicly and forcefully, and because his function makes him particularly credible in the eyes of his fellow citizens, that a lawyer cannot afford, without proof or reservations, to voice extremely serious specific accusations against an administrative body – the National Police – essential to the democratic edifice, one of whose tasks is to protect people against terrorist activities; In the instant case, however, [the applicant] did not confine herself to a general criticism of the judicial and police institutions or even the functioning of the fight against terrorism, but in a specific set of proceedings, made extreme accusations against the police of allegedly odious and inhuman practices, without being able to produce a shred of evidence; that being so, her plea of good faith cannot be accepted and the offence with which she stands charged is established ...” The applicant appealed. In support of her appeal she relied, inter alia, on the legitimacy of the debate on the means used in the “fight against terrorism”, her duty as a lawyer “to speak out” and the principle of freedom of expression enshrined in Article 10 of the Convention. In a judgment of 21 June 2001, the Paris Court of Appeal upheld the judgment concerning the applicant’s guilt but reduced the fine to FRF 10,000 (about EUR 1,525). The court declared, inter alia: “Considering that denouncing the conditions of organisation of the trial of her client, Mohamed Chalabi, and others, and criticising the proceedings as a whole constituted a manifestly legitimate aim for [the applicant], a lawyer; she could perfectly well have fully attained that aim by developing arguments, even laced with harsh criticisms, without having to draw inconsiderate, insulting parallels; Considering that in making extremely serious and ignominious accusations, in a particularly offensive manner, against the police responsible for fighting terrorism, in making the worst kind of comparisons to stir up indignation, in deliberately casting aspersions on a whole body of public servants, [the applicant] deliberately expressed herself in partial and vindictive terms, without the slightest caution or moderation; she cannot be accorded the benefit of good faith.” The applicant lodged an appeal on points of law. In her pleadings she relied on Article 10 of the Convention, alleging, inter alia, that the impugned conviction had violated her freedom of expression. In a judgment delivered on 3 December 2002 the Court of Cassation dismissed the appeal. With regard to the applicant’s first submission, invoking the immunity provided for in section 41 (3) of the 1881 Act, it held that “as the impugned press release cannot be considered as a written document adduced before a court, the Court of Appeal applied the Law correctly”. Concerning her second submission, it declared: “Given that, in rejecting the defence submission based on the provisions of the Convention and denying the lawyer the benefit of good faith, the judges stated that while denouncing the conditions of organisation of the trial concerning her client and criticising the proceedings as a whole constituted a legitimate aim for [the applicant], she could also have developed arguments, even laced with harsh criticisms, without having to draw inconsiderate, insulting parallels; that the same judges considered that in making extremely serious and ignominious accusations against the police responsible for fighting terrorism, and making comparisons with the Gestapo and the Militia of the Vichy regime the lawyer deliberately expressed herself “in partial and vindictive terms”, without the slightest caution or moderation, casting aspersions on the whole police force; Given that in the light of those considerations the Court of Appeal justified its decision; First of all, when a lawyer does not have the benefit of the immunity provided for in section 41 of the Act of 29 July 1881, he is not absolved, when expressing himself on his client’s behalf, of the caution and circumspection necessary to the acceptance of the defence of good faith; And secondly, while freedom of expression is protected by Article 10.1 of the European Convention for the Protection of Human Rights, it may, by virtue of the second paragraph of Article 10, be subject to restrictions and penalties in the cases determined by the Act of 29 July 1881; that is the purpose of section 30 of that Act, which provides for a penalty necessary in a democratic society for the prevention of disorder and the protection of the reputation of the public authorities, in this case the national police;”. The relevant provisions of the Freedom of the Press Act of 29 July 1881, as amended, in force at the material time, read as follows: “It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be a punishable offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the impugned speeches, shouts, threats, written or printed matter, placards or posters.” “Defamation of the courts, the army, navy or air force, State institutions and public authorities by any of the means listed in section 23 shall be punishable by a term of imprisonment of one year and a fine of FRF 300,000 or one of those penalties only.” “Neither the accurate reporting in good faith of court proceedings nor statements made or documents produced before the courts shall give rise to proceedings for defamation, insult or contempt. However, the courts examining the merits of the case may order the withdrawal of the insulting, offensive or defamatory statements and order those responsible to pay damages. Acts of defamation alien to the case may, however, give rise to prosecution or to civil action by the parties when the court has left that course open and, in any event, to civil action by third parties.”