CASE OF BONO v. FRANCE
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary
5. The applicant was born in 1974 and lives in Paris. 6. The applicant is a lawyer at the Paris Bar. He acted for S.A. in criminal proceedings on a charge of criminal conspiracy for the preparation of an act of terrorism constituting one of the offences provided for in Article 421-1 of the Criminal Code. 7. In 2000 the domestic security and intelligence agency (Direction de la surveillance du territoire – the “DST”) sent an intelligence report to the Paris public prosecutor’s office stating that in Frankfurt the German police had dismantled a network of Islamist terrorists who were likely to be preparing attacks on French territory. In this context, one S.A., who was a suspect in criminal proceedings in France, was arrested in Damascus on 12 July 2003. The French authorities were apprised of this arrest on 18 July 2003. 8. On 1 April 2004 the investigating judges in charge of the case, in the “anti-terrorism” judicial investigation division of the Paris tribunal de grande instance, issued an international letter of request to the Syrian military authorities for the purpose of questioning S.A. 9. From 2 to 7 May 2004, one of the investigating judges, M.B., accompanied by members of the DST, went to Damascus for the execution of the letter of request. 10. During the questioning S.A. was allegedly tortured. 11. On 11 May 2004, after the file had been received in reply to the letter of request, the investigating judges issued an international arrest warrant. S.A. was extradited and remanded in custody on 17 June 2004. 12. By a decision of 15 December 2005 the investigating judge committed S.A. and two other persons to stand trial before the Paris Criminal Court on charges of participating in a criminal conspiracy for the preparation of an act of terrorism. Prior to that decision there had been no applications to the investigation division for the annulment of any investigative acts, neither by the lawyer previously assigned to S.A., nor by the prosecutor or the investigating judges ... Therefore, under Article 174 of the Code of Criminal Procedure, the parties were no longer entitled to raise grounds of nullity in respect of procedural acts or evidence, “except where they could not have been aware of [those grounds]”. 13. Before the Criminal Court the applicant requested in his written pleadings that documents that had been obtained, according to him, through torture by the Syrian secret services, be excluded from the file: the written “confession” of S.A., the report by the Syrian secret services dated 3 May 2004 and the interview records of 30 April and 2, 3, 4 and 5 May 2004. He alleged that there had been “complicity on the part of the French investigating judges in the use of torture against S.A. in Syria by military personnel of the secret service” (see, for details of these pleadings, their reproduction by the Paris Court of Appeal, paragraph 15 below). 14. In a judgment of 14 June 2006 the court excluded the documents obtained through the international letter of request and sentenced S.A. to nine years’ imprisonment. It took the view, in the light of statements by the Director of the World Organisation against Torture, a member of the French section of Amnesty International and the Secretary of the International Federation of Human Rights, called by S.A. as witnesses, and who were unanimous as to the almost systematic use of torture by the Syrian security bodies (since a military decree of 1963), that it was “likely that the statements made by S.A. in Syria, to the Palestine Section, had been given under torture, and that his confession had thus been obtained by this method”. The court continued as follows: “Moreover, in his report on his mission to Damascus for the execution of his international letter of request of 1 April 2004 ..., M.B., investigating judge (First Vice-President) in charge of the investigation, specified that at the first working meeting with Syrian intelligence officials, he was told that S.A. ‘had already been questioned on 30 April and 2 May 2004’ and that ‘his interviews were continuing on the basis of the list of questions contained in the international letter of request and additional questions which he [M.B.] wanted to be put, particularly in the light of the answers already recorded’. However, the judge stressed that he had ‘not been allowed to participate in the questioning of S.A. but only to follow it in real time’. On 4 and 5 May the questioning thus continued under the same conditions as the day before. For his part, S.A. emphasised that his entire interrogation had taken place without the French investigating judge being present. When presented to that judge on 17 June 2004 he indicated that he was ‘tired’, that he ‘wished to see a doctor immediately’, and that he was ‘worried about his wife and daughter’. He subsequently described his conditions of detention in Syria and the torture to which he had been subjected during the interrogation. As a result, the French investigating judge was not able to exercise any real control over the conditions in which S.A. was interrogated in Syria, even though he was being held in the ‘Palestine Section’, which was known to be a very harsh section, according to witnesses, in which many cases of torture had been reported. It is therefore almost certain that the admissions or ‘confession’ of S.A. were obtained under torture and must be excluded as evidence against him and his co-defendants. Accordingly, S.A.’s handwritten statement, his interview records from Syria and the report prepared by the Syrian secret services must be removed from the case file.” 15. S.A. appealed against the judgment. The applicant lodged with the Paris Court of Appeal his pleadings in defence of S.A., extending to more than eighty pages, at paragraph 5 of which he again sought the exclusion of the documents obtained under torture. To that end, he relied on Articles 3 and 6 of the Convention, as well as Articles 3 and 15 of the Convention against Torture of 10 December 1984, and referred to the reports of non-governmental organisations concerning the practice of torture in Syria and to the evidence taken at first instance. In particular, he wrote as follows: “Page 25: ‘it was thus blindly that the investigating judges did not want to try and avoid the torture to which Mr. [S.A.] was subjected in the hands of the Syrian secret services in Damascus.’ Page 47: ‘the French investigating judges allowed the Syrian secret services to torture [S.A.] without intervening, and it can even be shown that they promoted torture – this amounts to a judicial outsourcing of torture.’ Page 68, paragraph entitled: ‘Complicity of the French investigating judges in the use of the torture against Mr. [S.A.] in Syria by military personnel of the secret services’. Page 69: ‘The investigating judges, who had felt from the beginning of the proceedings that they should be brought against Mr. [S.A.], allowed torture to be used against him by military personnel of the Syrian secret services ... They chose to accept the outsourcing of torture.’ Page 70: ‘the international letter of request issued by the French investigating judges provides the Syrian secret service officers with the answers to be obtained from the questions to be asked: it encourages torture.’” 16. In a judgment of 22 May 2007 the Court of Appeal upheld S.A.’s conviction and sentenced him to ten years’ imprisonment, after excluding the documents in question: “the defendant’s statements, as they had been obtained in Syria, were included in documents whose lawfulness in terms of French procedural rules and the Convention could not be guaranteed”. It rejected the applicant’s submissions “relating to complicity in acts of torture committed by the investigating judges and the criticisms about the conduct of the judicial investigation” as being “prejudicial to the dignity of the investigating judges and without any basis or moderation”. The judgment of the Court of Appeal indicated that its president had asked the applicant “to moderate his remarks concerning the allegations of complicity on the part of the investigating judges in the use of the torture against S.A. (see p. 68 et seq. of the pleadings)”. 17. In a letter of 17 January 2008 the Chairman of the Paris Bar Association informed the public prosecutor at the Paris Court of Appeal, who had sent him a copy of the pleadings, that he did not intend to act upon this matter. 18. In a formal referral to the disciplinary body dated 4 February 2008, pursuant to Article 188 § 1 of the decree of 27 November 1991 concerning the organisation of the legal profession ... the public prosecutor asked that body to bring disciplinary proceedings against the applicant for disregarding the essential principles of honour, tactfulness and moderation governing the legal profession. He indicated the passages in the applicant’s pleadings which, in his view, had seriously impugned the honour of the investigating judges, namely the statements on pages 25, 47 and 68 to 70 (see paragraph 15 above). He pointed out that the criminal immunity for words spoken in court as provided for in section 41 of the Law of 29 July 1881 on the freedom of the press (“the 1881 Act”, ...) was not applicable in disciplinary matters. 19. In a decision of 30 September 2008 the Disciplinary Board of the Paris Bar Association dismissed all the charges against the applicant. It considered that his objective had been to ensure the removal from the case file of the documents which emanated from the Syrian authorities. It observed in this regard that although the practice of torture by the Syrian secret services was notorious, the investigating judges had failed to issue an international arrest warrant immediately but had, on the contrary, waited until 1 April 2004 to issue a letter of request to the Syrian military authorities, and “that letter was, according to S.A.’s lawyers, executed with astonishing speed”. It thus found that “it was on this basis and in support of the request for the exclusion from the case file of the documents from the Syrian authorities that [the applicant] called into question, in the terms for which he is reproached, the conduct of the investigating judges”. The Disciplinary Board further found that the applicant should benefit from judicial immunity in so far as the impugned remarks were not unrelated to the case. Relying on the case-law of the Court of Cassation on this point..., and on the protection under Article 10 of the Convention of the lawyer’s freedom of speech in court (referring to the judgment in Nikula v. Finland, no. 31611/96, ECHR 2002-II), it pointed out that the applicant’s impugned remarks did not constitute personal attacks on the judges, but sought to call into question the manner in which they had conducted the proceedings, and that the remarks were “obviously not unrelated to the facts of the case”. The disciplinary body finally pointed out that the applicant was justified in believing that the argument as to the procedural conduct of the investigating judges had not been without influence on the first-instance decision to exclude the Syrian statements from the case file and that he had been justified in using these arguments before the Court of Appeal, irrespective of their vitriol, whereas the raising of this issue in the court below had not even led to any reaction on the part of the prosecution. 20. On 3 October 2008 the Principal Public Prosecutor appealed against that decision. 21. In a judgment of 25 June 2009 the Paris Court of Appeal quashed the decision of the Bar Association and issued the applicant with a reprimand accompanied by disqualification from professional bodies for a period of five years. The Court of Appeal observed that the immunity of the courtroom could not be invoked in disciplinary matters. Stressing that lawyers’ freedom of expression was not absolute, it took the view that the remarks at issue were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of S.A.’s statements during his interrogation, they also called into question the moral integrity of the investigating judges at a personal level. It found that the applicant “had visibly sought to ‘do as he pleased’ even to the extent of harming his client (whose sentence was extended by a year by the Court of Appeal)”. The court took the view that the accusation of complicity had been pointless in relation to the interests of his client, and gratuitous, since the judges had mentioned in a mission report the difficulties they had encountered with the Syrian authorities, who had prevented them from attending the interviews (see paragraph 14 above). The Court of Appeal pointed out that the documents in question had been excluded by the court below and that “there was no need for [the applicant], in the interest of S.A., to claim without any proof that the French investigating judges had been complicit in the torture of S.A.”. It concluded that the attacks were not proportionate to the aim pursued and that the impugned remarks constituted a breach of the essential principles of the legal profession, namely dignity, honour, tactfulness and moderation. 22. The applicant lodged an appeal on points of law. The Chairman of the Paris Bar Association did likewise. In his grounds of appeal, the applicant relied in particular on Articles 6 and 10 of the Convention to argue that the immunity provided for by the 1881 Act was applicable in disciplinary proceedings. He also pointed out that the fact of denouncing the shortcomings of the justice system on the basis of a letter of request issued to the Syrian secret services had been necessary for his client’s defence, and such denunciation could not be considered as a disciplinary offence given the absolute nature of the prohibition of torture. 23. In a judgment of 14 October 2010 the Court of Cassation declared inadmissible the appeal by the Chairman of the Bar Association on the ground that he was not a party to the proceedings. As to the applicant’s appeal on points of law, it was rejected in the following terms: “However, firstly, the judgment states precisely that the provisions of sections 41 and 65 of the Law of 29 July 1881 are not applicable in disciplinary matters. Having rightly observed that, while the lawyer has the right to criticise the functioning of the justice system or the conduct of a particular judge, his freedom of expression is not absolute because it is subject to restrictions which derive, in particular, from the need to protect the reputation or rights of others and to maintain the authority and impartiality of the judiciary, the Court of Appeal found that the offending remarks were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of statements made by the suspect during interviews conducted for the execution of the international letter of request issued by the French investigating judges, but personally impugned the moral integrity of those judges, accusing them of deliberately promoting the use of torture and of being actively complicit in the ill-treatment inflicted by the Syrian investigators. Having noted that these serious accusations were both pointless in relation to the client’s interests and gratuitous, since the judges, in the report of their mission to Damascus, had described the difficulties they had encountered with the Syrian authorities, who had refused to allow them to attend the interviews, the court rightly inferred that the offending remarks did not fall under the protection of freedom of expression, but breached the principles of honour and tactfulness. On those grounds, without there being any lack of impartiality or any breach of the principle of the presumption of innocence, it legally justified its decision to impose on the lawyer a mere reprimand together with a temporary disqualification from membership of professional bodies and councils; ...” ...