EZELIN v. FRANCE - 11800/85 - Chamber Judgment [1991] ECHR 29 (26 April 1991)

In the Ezelin case*,

The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention")** and the relevant provisions of the Rules of Court***, as a Chamber composed of the following judges:

Mr R. Ryssdal, President,

Mr J. Cremona,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr B. Walsh,

Mr A. Spielmann,

Mr J. De Meyer,

Mr R. Pekkanen,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,

Having deliberated in private on 21 November 1990 and 18 March 1991,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 6 April 1990, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 11800/85) against the French Republic lodged with the Commission under Article 25 (art. 25) by a national of that State, Mr Roland Ezelin, on 16 October 1985.

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby France recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 10 and 11 (art. 10, art. 11) of the Convention.

In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).

The Chamber to be constituted included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 3 May 1990, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr J. Cremona, Mr F. Matscher, Mr B. Walsh, Mr A. Spielmann, Mr J. De Meyer, Mrs E. Palm and Mr R. Pekkanen (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). Subsequently Mr F. Gölcüklü, substitute judge, replaced Mrs Palm, who was unable to take part in the further consideration of the case (Rules 22 § 1 and 24 § 1).

Mr Ryssdal assumed the office of President of the Chamber (Rule 21 § 5) and, through the Registrar, consulted the Agent of the French Government ("the Government"), the Delegate of the Commission and the lawyer for the applicant on the need for a written procedure (Rule 37 § 1). In accordance with the Order made in consequence on 21 May 1990, the Registrar received the applicant’s claims under Article 50 (art. 50) of the Convention on 27 July and the Government’s memorial on 16 August. In a letter of 21 September the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing.

Having consulted, through the Registrar, those who would be appearing before the Court, the President had directed on 6 July 1990 that the oral proceedings should open on 20 November (Rule 38).

The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

- for the Government

Mr J.-P. Puissochet, Director of Legal Affairs,

Ministry of Foreign Affairs, Agent,

Miss M. Picard, magistrat,

seconded to the Department of Legal Affairs, Ministry of

Foreign Affairs,

Mr G. Soury, magistrat,

seconded to the Department of Civil Affairs, Ministry of

Justice,

Mr F. Vervel, Head of the Atlantic desk,

Ministry of Overseas Departments and Territories,

Counsel;

- for the Commission

Mr A. Weitzel, Delegate;

- for the applicant

Ms C. Waquet, avocat

at the Conseil d’État and the Court of Cassation, Counsel.

The Court heard statements by Mr Puissochet for the Government, Mr Weitzel for the Commission and Ms Waquet for the applicant.

On 15 February 1991 the applicant produced vouchers in support of his claim for reimbursement of costs and expenses. No observations were submitted by either the Government or the Delegate of the Commission.

AS TO THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

Mr Roland Ezelin is a French national who lives at Basse-Terre (Guadeloupe). He practises as a lawyer (avocat).

A. Background to the case

On 12 February 1983 a number of Guadeloupe independence movements and trade unions held a public demonstration at Basse-Terre to protest against two court decisions whereby prison sentences and fines were imposed on three militants for criminal damage to public buildings. The applicant, who was Vice-Chairman of the Trade Union of the Guadeloupe Bar at the time, took part and carried a placard.

The Chief Superintendent of the Basse-Terre police drew up a report on the very same day and sent it to the local public prosecutor. The report, which had eleven appendices, gave the following account:

"While at the station,

I was informed in a radio message that the demonstration being held today by various independence movements in the Champ d’Arbaud, Basse-Terre, from 9 a.m. onwards, whose progress we were monitoring, had taken the form of a procession in town. Demonstrators had set off at 10.30 a.m. and were marching through the streets of the town chanting slogans hostile to the police and the judiciary. During the procession graffiti were daubed in paint on various buildings, in particular the Institut d’émission d’Outre-mer, known as the ‘Central Treasury’.

The group of 450-500 people which had left the Champ d’Arbaud had joined another group of 500 people, at the rue Schoelcher, forming a compact group of about a thousand people headed by the leaders, who announced over loudspeakers the slogans to be chanted. The following were recognised among these leaders:

Roland Thesauros (University of West Indies-Guiana); Luc Reinette, leader of the MPGI (Popular Movement for an Independent Guadeloupe), a former member of the GLA, who came out of prison after 10 May 1981; Max Safrano, presumed head of the ALN (National Liberation Army), against whom criminal charges had been brought and who had been released from Basse-Terre Prison the previous day; Fernand Curier of the UTS/UGTG Trade Union, recently (1 February 1983) sentenced by the Basse-Terre Court of Appeal to 15 days’ imprisonment and a fine of 10,000 francs; the sister of Joseph Samson, another person given the same sentence on 7 February 1983 by the Basse-Terre Criminal Court; Rosan Mounien, another member of the UTA/UGTG Trade Union;Marc-Antoine, convicted by the Basse-Terre Court of Appealon 7 September 1983 along with Alexander, ... and others,known to be particularly fanatical and determinedextremists, including one Rupaire, etc ... This processionwas now in the Cours Nolivos and was entering the rue de laRépublique and would soon be arriving in front of the policestation.

At this point I reported what was happening to the Chief Constable (call-sign ‘Polaire’), who was at the Law Courts with two squads of riot police which we had agreed to deploy at the bottom of the boulevard Félix-Eboué in order to bar access to the Law Courts and prevent any damage to the building and to the département council building.

At ten past eleven the demonstrators reached the police station and assembled in front of it.

While I made the necessary arrangements for countering any attack on the building, the demonstrators took up their position in front of the police station and were addressed by two leaders from outside the district who were unknown to the police officers present. The speakers, who spoke in Creole, urged the police officers to move up and join them. There followed a violent tirade against Police Officer Beaugendre, who was accused of betrayal, after which the crowd of demonstrators rhythmically chanted ‘BEAUGENDRE-MAKO! UN JOU OU KE PAYE’ (One day you will pay).

The following were identified among the demonstrators: Roland Thesauros, Luc Reinette, Max Safrano, Fernand Curier, Rosan Mounien, Rupaire, Marc-Antoine, Samson’s family (see report no. 1) and Dr Corentin (see report no. 7) and Mr Ezelin, a barrister; the two last-mentioned displayed a banner with the words ‘LAWYERS - DOCTORS’ (see report no. 7). The majority of demonstrators, however, including the most worked up and the most aggressive ones, were people from outside Basse-Terre, most of them from Grande-Terre island, it seemed, and consequently unknown to the police.

The demonstrators left the police station at about 11.30 a.m. and headed in the direction of the Law Courts and the council building. My Chief Constable, who was continuously kept informed of events, then told me that he had abandoned the idea of blocking the lower end of the boulevard Eboué with a police line - as we had agreed, with the aim of preventing the demonstrators from approaching the two danger spots, the Law Courts and the council building - because the demonstrators’ numerical superiority was too great.

The procession then went along the boulevard Félix-Eboué and eventually reached the Champ d’Arbaud, where it dispersed after having made two lengthy halts during which further speeches were made and slogans chanted by the crowd, firstly in front of the Law Courts in order to insult the judges and then outside the prison in order to demonstrate their solidarity with the imprisoned militants. After the demonstrators had gone past, it was found that they had taken advantage of these stops to paint offensive and insulting graffiti in green, red and black on the walls of the administrative buildings.

The investigation that was immediately undertaken failed to identify those responsible for defacing the buildings. According to information received, most of the graffiti were the work of girls who were not from Basse-Terre, no doubt to avoid recognition as far as possible. One of them was claimed to be a teacher from Pointe-à-Pitre, but this could not be positively established. The intelligence service (Renseignements généraux) confirmed that the persons responsible for the graffiti were among the demonstrators who arrived by coach from Pointe-à-Pitre. They did not know their identities.

I am accordingly sending you this report as it stands at present.

The case is receiving my officers’ full attention, however.

Any new development or information making it possible to identify the perpetrators would immediately be followed up and I would not fail to keep you informed."

B. The judicial investigation

A judicial investigation was commenced on 21 February 1983 into the commission by a person or persons unknown of offences of criminal damage to public buildings and insulting the judiciary.

On 24 February, the Principal Public Prosecutor at the Basse-Terre Court of Appeal wrote to the Chairman of the Guadeloupe Bar as follows:

"Please find enclosed a photocopy of a police report of 21 February 1983 from which it appears that Mr Ezelin, of the Guadeloupe Bar, took part in a public demonstration against the judiciary in circumstances likely to entail criminal liability under Article 226 of the Criminal Code." [See paragraph 23 below.]

"Would you kindly let me have your opinion of this case after hearing your colleague’s explanations."

In a letter of 14 March 1983 the Chairman of the Bar informed the Principal Public Prosecutor of the outcome of his investigations, as follows:

"... Mr R. Ezelin [had] not [been] carrying a banner with another person but [had been] carrying a placard on his own which bore the words ‘Trade Union of the Guadeloupe Bar against the Security and Freedom Act’.

No act, gesture or words insulting to the judiciary [could] be attributed to him.

His participation in a demonstration [had] therefore [been] confined to protesting at the use of the ‘Security and Freedom’ Act.

... ."

And he concluded:

"This being so, having regard to:

(a) the facts: even assuming the worst as regards Mr Ezelin, the report by [the] Chief Superintendent ... does not accuse him of any insulting gesture, act or words; and

(b) the provisions of Article 226 of the Criminal Code, it does not seem to me that my colleague Mr Ezelin can have incurred any liability in exercising his right to join a demonstration which had not been prohibited, carrying a placard with the words ‘Trade Union of the Guadeloupe Bar against the Security and Freedom Act’.

... ."

After a postponement, the applicant was summoned to appear before the investigating judge on 25 April 1983 in order to give evidence as a witness, and at the interview he stated that he had nothing to say on the matter.

On 19 May 1983 the judicial investigation ended with a discharge order on the ground that no evidence had been obtained which would make it possible to identify those responsible for the graffiti or for the insulting or threatening words uttered during the demonstration.

C. The disciplinary proceedings against the applicant

1. The decision of the Bar Council

On 1 June 1983 the Principal Public Prosecutor sent the Chairman of the Bar a complaint against the applicant, which read as follows:

"Further to my letter of 24 February 1983 and our conversation of 31 May last, I wish to bring to your attention, under Article 113 of the Decree of 9 June 1972," - see paragraph 25 below - "the conduct of Mr Ezelin, whose name appears on the roll of the members of the Guadeloupe Bar.

In my earlier letter I sent you a photocopy of a police report of 21 February 1983 which gave an account of Mr Ezelin’s participation in a demonstration at Basse-Terre on 12 February 1983.

The aim of the demonstration was to protest against two court decisions, the first of which was given on 1 February 1983 by the Basse-Terre Court of Appeal against Fernand Curier and the other of which was given on 7 February 1983 by the Basse-Terre tribunal de grande instance against Gérard Quidal and Joseph Samson, who were charged with offences of criminal damage to public buildings.

During the demonstration, a number of particularly offensive graffiti were daubed in paint on the walls of the Law Courts calling one of the judges who had taken part in one of the decisions a fascist and calling all the judges ‘MAKO’ [pimps].

The demonstrators even chanted death threats on numerous occasions against police officers who witnessed the events.

The Basse-Terre investigating judge opened an investigation into the commission by a person or persons unknown of offences of criminal damage to public buildings, insulting the judiciary and aiding and abetting.

All the persons reported as having taken part in the demonstration were interviewed and they stated either that they had not seen anyone paint the graffiti or, at the very least, that they did not know who the people responsible were.

Only Roland Ezelin refused to answer the questions.

As the proceedings ended with a discharge order, I am sending you attached a photocopy of the record of his examination as a witness, the date of which had been delayed for more than a month in order to suit his convenience.

This attitude therefore strengthens, in my opinion, the view that Mr Ezelin, who was acquainted with the purpose of the demonstration (cf. photocopies of the leaflets distributed during it), wanted, by taking part in it, to associate himself in exemplary fashion with a political organisation’s criticisms of the judiciary in Guadeloupe and that, at all events, neither the death threats nor the insulting graffiti directed against judges before whom he argued cases surprised him on this occasion or even shocked him as a barrister.

His refusal to reply to the investigating judge as a witness displays, moreover, an attitude of contempt for justice.

In these circumstances I consider that there has been in this case a breach under Article 106 of the Decree of 9 June 1972" - see paragraph 25 below - "and I accordingly would ask you to kindly bring disciplinary proceedings against Mr Ezelin before the Bar Council.

... ."

At a disciplinary hearing held under Article 104 of Decree no. 72-468 of 9 June 1972 (see paragraph 25 below), the Bar Council adopted the following decision on 25 July 1983:

"...

At the request of the Principal Public Prosecutor, the Chairman of the Bar has already given an opinion dated 14 March 1983 as to the first series of charges against Mr Ezelin. It appears both from that opinion and from further explanations obtained from Mr Ezelin that he took part in the relevant demonstration in response to a call by the Trade Union of the Guadeloupe Bar, of which he is one of the leaders, in order to protest against the use of the direct-committal procedure" - obviating the need for a preliminary judicial investigation - "and the continuation in force of the so-called Security and Freedom Act, which has since been repealed. It does not appear from the judicial investigation that Mr Ezelin committed a breach of Article 106 of the Decree of 9 June 1972 in connection with taking part in the aforesaid demonstration or that any disciplinary sanction can consequently be imposed on him.

The inquiries made into these events have, moreover, been brought to an end with a discharge order that has now become final.

As regards the second series of charges against Mr Ezelin, it appears both from the judicial investigation and from Mr Ezelin’s explanations that his refusal to make a statement to the investigating judge was prompted by anxieties based on Article 105 of the Code of Criminal Procedure" - see paragraph 24 below - "and a concern to comply with Article 89 of the Decree of 9 June 1972," - see paragraph 25 below - "as some of the persons summoned by the investigating judge in connection with the events on which his evidence was being sought had previously consulted him as a lawyer.

It is true, as Mr Ezelin maintained, that in a letter of 24 February 1983 the Principal Public Prosecutor informed the Chairman of the Bar that Mr Ezelin ‘[had taken] part in a public demonstration against the judiciary in circumstances likely to entail criminal liability under Article 226 of the Criminal Code’.

Mr Ezelin, having been informed of this charge, was thus justified in relying on the provisions of Article 105 of the Code of Criminal Procedure.

While it may seem regrettable that Mr Ezelin did not make clearer to the judge his reasons for refusing to make a statement, it does not appear to the board that this refusal may be regarded as contempt for justice and the judiciary. Moreover, if it had been deemed sufficiently serious to amount to obstructing the normal course of the proceedings in question, the investigating judge would not have failed to avail himself of the provisions of Article 109 of the Code of Criminal Procedure" - see paragraph 24 below - "nor the prosecution to make the appropriate applications before the discharge order was made closing the investigation proceedings in connection with which Mr Ezelin had been summoned as a witness.

Consequently, having regard to the evidence, to Mr Ezelin’s explanations and to his usual excellent professional conduct, the board considers that there is no occasion to impose any disciplinary sanction on Mr Ezelin,

For these reasons,

The Bar Council, acting in its disciplinary capacity and at first instance,

Decides

1. There is no occasion to impose any disciplinary sanction on Mr Roland Ezelin on account of the matters of which it was seised by the Principal Public Prosecutor on 1 June 1983.

2. The board recommends the Chairman of the Bar to remind both Mr Ezelin and the whole of the Bar of the traditional rules of good behaviour and sound judgment in all activities in which their status as avocats may be involved.

... ."

2. The Basse-Terre Court of Appeal’s judgment of 12 December 1983

The Principal Public Prosecutor appealed to the Basse-Terre Court of Appeal against this decision. At the hearing he asked the Court to impose on the applicant the disciplinary penalty of a warning.

On 12 December 1983 the Court of Appeal reversed the Bar Council’s decision and imposed the disciplinary penalty of a reprimand on Mr Ezelin, a heavier penalty than a warning:

"...

It is established that on 12 February 1983 Mr Ezelin took part in a demonstration in the streets of Basse-Terre.

The police report and appended documents make it clear beyond contradiction that the acknowledged purpose of the demonstration, which was organised by the independence movements in the département, was to protest noisily against the recent sentences of three militants to 15 days’ imprisonment and a FRF 10,000 fine for damage to administrative buildings."

[There followed a summary of the report reproduced in paragraph 11 above.]

"It is not alleged that Mr Ezelin took part in this demonstration any more actively than by his constant presence and by carrying a placard.

Following those events a judicial investigation was opened into the commission by a person or persons unknown of offences of damage to public buildings, insulting the judiciary and aiding and abetting. Mr Ezelin was summoned as a witness by the investigating judge, together with a number of other persons recognised by the police officers. After he had taken the oath, his examination is recorded as follows:

‘You explain to me the circumstances of the events which have given rise to this case. I have nothing to say on the matter.

After an intervention: I repeat that I have nothing to say on the matter.

Question: Were you present at the demonstration which took place on 12 February last in the streets of Basse-Terre? If so, did you see anybody painting anything on the walls of various buildings in the town?

Answer: I have nothing to say on the matter.

Read, confirmed and signed together with me and the registrar.’

It appears from the foregoing that Mr Ezelin, avocat at the Court of Appeal and member of the Bar Council, participated in the whole of the demonstration which took place in the aforementioned, undisputed circumstances.

During this demonstration serious threats were continually made against a police constable and insults uttered against various other persons, including a judge of the Court of Appeal, a well-known regional figure and the judiciary as a whole, and the walls of the Law Courts and of the département council building opposite were covered with particularly offensive and insulting graffiti directed against the same persons.

It is beyond doubt that Mr Ezelin, who formed part of the procession, notably when it halted in front of the police station, the Law Courts and the prison, could not have failed to see these insulting and offensive graffiti being painted in very large letters on all the walls of the Law Courts - the place of work of judges and barristers alike - and of the council building, and that he could not have failed to hear the threats and insults that were unceasingly directed against the same people.

He was there in his capacity as an avocat, since he carried a placard announcing his profession, and at no time did he dissociate himself from the demonstrators’ offensive and insulting acts or leave the procession.

Such misconduct on the part of a member of the Bar publicly proclaiming his profession cannot be justified - as has been submitted on his behalf - by personal beliefs or trade-union instructions, and it amounts to a breach of discretion under Article 106 of the Decree of 9 June 1972.

Furthermore, Mr Ezelin, when examined as a witness by the investigating judge, refused to give evidence about matters of which he had knowledge, without giving any reason.

He thus contravened the provisions of Article 109, third paragraph, of the Code of Criminal Procedure, which are binding on all citizens and of whose requirements he could not, as a lawyer, be unaware.

Seeing that Mr Ezelin contravened a statutory provision and showed a lack of discretion, he rendered himself liable to the disciplinary sanctions listed in Article 107 of the Decree of 9 June 1972." [See paragraph 25 below.]

"Having regard to the unanimously favourable opinion of his professional conduct, the Court considers that the penalty should be a reprimand.

For these reasons,

Having regard to sections 22 et seq. of Act no. 71-1130 of 31 December 1971 and Articles 104 et seq. of Decree no. 72-468,

Sitting in public as a full court,

Sets aside the decision taken on 25 July 1983 by the Council of the Bar of the département of Guadeloupe at the Basse-Terre Court of Appeal, sitting as a disciplinary board,

Sentences Mr Ezelin, of that Bar, to the disciplinary penalty of a reprimand; and

Awards costs against him.

... ." (Gazette du Palais, 9 February 1984, jurisprudence, pp. 76-77)

3. The Court of Cassation’s judgment of 19 June 1985

The applicant appealed on points of law. He argued in particular that the disciplinary sanction imposed on him infringed Articles 10 and 11 (art. 10, art. 11) of the Convention.

On 19 June 1985 the Court of Cassation (First Civil Division) delivered a judgment dismissing the appeal. It said, inter alia:

"...

The Court of Appeal ... did not hold [Mr Ezelin] liable in virtue of a collective responsibility for criminal offences committed by other demonstrators but stated that during the demonstration, whose purpose was to protest noisily against recent criminal sentences, insults had been uttered and offensive graffiti daubed on all the walls of the Law Courts, directed against the judiciary as a whole and against a judge of the Court of Appeal by name and a well-known figure in the département who practised as a barrister. The Court of Appeal added that Mr Ezelin, who was at the demonstration as an avocat and had heard the threats and insults and seen the offensive graffiti daubed on the walls of the Law Courts, the place of work of judges and barristers alike, did not at any time express his disapproval of these excesses or leave the procession in order to dissociate himself from these criminal acts. It was entitled to infer from this that the behaviour was a breach of discretion amounting to a disciplinary offence. ...

...

... Article 109 of the Code of Criminal Procedure lays a duty on any person heard as a witness to give evidence; and by Article 106 of the Decree of 9 June 1972, any infringement of statutes or regulations constitutes a disciplinary offence, irrespective of the investigating judge’s power to fine a witness who refuses to give evidence. The Court of Appeal found that in reply to the questions put by the investigating judge, and in particular the question: ‘Were you present at the demonstration in the streets of Basse-Terre on 12 February 1983?’, Mr Ezelin said merely: ‘I have nothing to say on the matter’. It added that Mr Ezelin gave no reason to explain this attitude. It was entitled to infer from this that Mr Ezelin, who had thus refused to give evidence without justifying his refusal on the basis of Article 105 of the Code of Criminal Procedure or of professional confidentiality, had committed a breach of the law and of discretion vis-à-vis the investigating judge and that these amounted to a disciplinary offence. The Court of Appeal thus justified its decision in law, and none of the limbs of the ground of appeal is well-founded ... ." (Gazette du Palais, 11-12 October 1985, pp. 16 and 17)

II. RELEVANT DOMESTIC LAW AND PRACTICE

The following provisions of French law need to be set out:

A. General provisions

1. The Criminal Code

Article 226, first paragraph

"Anyone who by his acts or by means of the written or spoken word has publicly attempted to bring discredit on any action or decision taken by a court, in a manner likely to impair the authority or independence of the judiciary, shall be liable to imprisonment for not less than one month and not more than six months and a fine of not less than 500 francs and not more than 90,000 francs or to only one of these two penalties."

2. The Code of Criminal Procedure

Article 105

"An investigating judge in charge of an investigation and judges and senior police officers (officiers de police judiciaire) acting on judicial warrants shall not, with the intention of preventing the exercise of the rights of the defence, examine as witnesses persons against whom there is substantial, consistent evidence of guilt."

Article 109

"Anyone summoned to be examined as a witness shall be required to appear, to take the oath and to give evidence, subject to the provisions of Article 378 of the Criminal Code [duty of professional confidentiality].

If a witness fails to appear, the investigating judge may, on an application by the public prosecutor, have the witness brought before him by the police and impose on him a fine of not less than 2,500 francs and not more than 5,000 francs. If the witness subsequently appears, however, he may, if he apologises and provides an explanation, be excused this penalty by the investigating judge, after the public prosecutor has made submissions.

The same penalty may, on an application by the prosecutor, be imposed on a witness who, although he has appeared, refuses to take the oath and to give evidence.

... ."

B. Provisions relating specifically to avocats

1. The Decree of 9 June 1972 "regulating the profession of avocat, implementing the Act of 31 December 1971 reforming certain court and legal professions"

Article 89

"An avocat must not, in any matter, make any disclosure in breach of professional confidentiality. He must, in particular,respect the confidentiality of judicial investigations in criminal matters by refraining from communicating any information from the file and from publishing letters or other documents concerning a current investigation."

Article 104

"The Bar Council sitting as a disciplinary board shall proceed against and punish offences and misconduct by an avocat or a former avocat where at the material time he was entered on a Bar roll, list of trainees or list of honorary avocats."

Article 106

"Any contravention of statutes or regulations, infringement of professional rules or breach of integrity, honour or discretion, even relating to non-professional matters, shall render the avocat responsible liable to the disciplinary sanctions listed in Article 107."

Article 107

"The disciplinary penalties shall be:

A warning; A reprimand; Suspension for a period not exceeding three years; Striking off the roll of avocats or list of trainees or withdrawal of honorary status.

A warning, a reprimand and suspension may, if so provided in the decision in which the disciplinary penalty is imposed, entail loss of membership of the Bar Council for a period not exceeding ten years.

The Bar Council may further order, as an ancillary penalty, that any disciplinary penalty shall be publicly displayed on the Bar’s premises."

Article 113

"The Chairman of the Bar, either on his own initiative or on an application from the Principal Public Prosecutor or on a complaint by any party affected, shall inquire into the conduct of the avocat concerned. He shall then either discontinue the proceedings or refer the matter to the Bar Council.

If he has received a complaint, he shall inform the complainant. If the facts were reported to him by the Principal Public Prosecutor, he shall notify the latter.

... ."

2. The Act of 15 June 1982 "on the procedure applicable in the event of professional misconduct by an avocat at a court hearing"

Avocats are bound by the oath they take when entering upon their duties. The wording of the oath is given in section 1 of the Act of 15 June 1982:

"I swear, as an avocat, to defend and counsel in a dignified, conscientious, independent and humane manner."

Before that Act came into force, the oath was worded as follows:

"I swear, as an avocat, to defend and counsel in a dignified, conscientious, independent and humane manner, with respect for the courts, the public authorities and the rules of the Bar, and neither to say nor to publish anything contrary to statute, regulations, morals, the security of the State, or public order." (Article 23 of the Decree of 9 June 1972)

An avocat who took the oath before the Act of 15 June 1982 came into force is deemed to have taken it in its current form.

In a judgment of 9 June 1964 the Court of Cassation (First Civil Division) held that the avocat’s oath "also [bound] him in all circumstances not to deviate from the respect due to the courts and to the public authorities; ...". (Juris-Classeur périodique 1964, II, no. 13797, note by J.A.)

Moreover, in a judgment of 30 June 1965 (Criminal Division, Bouvier) the Court of Cassation held that an avocat, while being entitled to protest at any infringement of the rights of the defence, must refrain from any expression which would reflect on the honour or discretion of a judge.

PROCEEDINGS BEFORE THE COMMISSION

In his application of 16 October 1985 to the Commission (no. 11800/85), Mr Ezelin relied on Articles 10 and 11 (art. 10, art. 11) of the Convention. He submitted that the disciplinary sanction imposed on him seriously interfered with his freedom of expression and of peaceful assembly.

The Commission declared the application admissible on 13 March 1989. In its report of 14 December 1989 (made under Article 31) (art. 31) it expressed the opinion that there had been a breach of Article 11 (art. 11) (by fifteen votes to six) and that no separate issue arose under Article 10 (art. 10) (unanimously). The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment *.

FINAL SUBMISSIONS TO THE COURT

At the hearing on 20 November 1990 the Agent of the Government maintained the submissions made in his memorial. In those the Court was asked to hold that there had been no violation of Article 11 (art. 11) and to endorse the Commission’s view that no separate issue arose under Article 10 (art. 10).

Counsel for the applicant asked the Court to find that there had been a breach of freedom of expression and of freedom of peaceful assembly guaranteed in Articles 10 and 11 (art. 10, art. 11) and to award his client the compensation sought.

AS TO THE LAW

The applicant considered that the disciplinary sanction imposed on him by the Basse-Terre Court of Appeal was incompatible with his freedom of expression and his freedom of peaceful assembly, which were protected by Articles 10 and 11 (art. 10, art. 11) of the Convention.

The Government pointed out that this sanction was also designed to punish Mr Ezelin for his refusal to give evidence to the investigating judge. They criticised the Commission for suggesting that the only matter in issue was the applicant’s participation in the demonstration.

The applicant was in fact punished for having neither shown his disapproval of the "demonstrators’ offensive and insulting acts" nor left the procession in order to dissociate himself from them and also for having refused to give evidence although he had not invoked Article 105 of the Code of Criminal Procedure or professional confidentiality (see paragraphs 20 and 21 above). Nevertheless, he was summoned before the investigating judge as a result of having taken part in the demonstration. That being so, the question of the refusal to give evidence - an issue which in itself does not come within the ambit of Articles 10 and 11 (art. 10, art. 11) - is a secondary one. It may be noted, moreover, that Mr Ezelin did not remain totally silent in the presence of the investigating judge: he stated that he had nothing to say on the matter, and the judge did not see fit to use his power under Article 109, third paragraph, of the Code of Criminal Procedure (see paragraphs 15, 20 and 21 above).

I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)

The applicant based one of his submissions on Article 10 (art. 10), which provides:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

In the circumstances of the case, this provision is to be regarded as a lex generalis in relation to Article 11 (art. 11), a lex specialis, so that it is unnecessary to take it into consideration separately. On this point the Court agrees with the Commission.

II. ALLEGED VIOLATION OF ARTICLE 11 (art. 11)

The main question in issue concerns Article 11 (art. 11), which provides:

"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ..."

Notwithstanding its autonomous role and particular sphere of application, Article 11 (art. 11) must, in the present case, also be considered in the light of Article 10 (art. 10) (see the Young, James and Webster judgment of 13 August 1981, Series A no. 44, p. 23, § 57). The protection of personal opinions, secured by Article 10 (art. 10), is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (art. 11).

A. Whether there was an interference with the exercise of the freedom of peaceful assembly

In the Government’s submission, Mr Ezelin had not suffered any interference with the exercise of his freedom of peaceful assembly and freedom of expression: he had been able to take part in the procession of 12 February 1983 unhindered and to express his convictions publicly, in his professional capacity and as he wished; he was reprimanded only after the event and on account of personal conduct deemed to be inconsistent with the obligations of his profession.

The Court does not accept this submission. The term "restrictions" in paragraph 2 of Article 11 (art. 11-2) - and of Article 10 (art. 10-2) - cannot be interpreted as not including measures - such as punitive measures - taken not before or during but after a meeting (cf. in particular, as regards Article 10 (art. 10), the Handyside judgment of 7 December 1976, Series A no. 24, p. 21, § 43, and the Müller and Others judgment of 24 May 1988, Series A no. 133, p. 19, § 28).

In the second place, the Government maintained that despite the peaceful nature of Mr Ezelin’s own intentions and behaviour, the sanction of which he complained had in no way infringed his freedom of peaceful assembly seeing that the demonstration had got out of hand.

In the Commission’s opinion, no intentions that were not peaceful could be imputed to the applicant.

The Court points out that prior notice had been given of the demonstration in question and that it was not prohibited. In joining it, the applicant availed himself of his freedom of peaceful assembly. Moreover, neither the report made by the Chief Superintendent of the Basse-Terre police nor any other evidence shows that Mr Ezelin himself made threats or daubed graffiti.

The Court of Appeal found the charge of not having "dissociate[d] himself from the demonstrators’ offensive and insulting acts or [left] the procession" (see paragraph 20 above) proven. The Court of Cassation noted that at no time did he "express his disapproval of these excesses or leave the procession in order to dissociate himself from these criminal acts" (see paragraph 21 above).

The Court accordingly finds that there was in this instance an interference with the exercise of the applicant’s freedom of peaceful assembly.

B. Whether the interference was justified

It must therefore be determined whether the sanction complained of was "prescribed by law", prompted by one or more of the legitimate aims set out in paragraph 2 and "necessary in a democratic society" for achieving them.

1. "Prescribed by law"

The applicant submitted that Article 106 of the Decree of 9 June 1972 was in no way intended to restrict the right of assembly of avocats; moreover, the general nature of the words "breach of ... discretion" made it impossible to define a breach in advance and allowed of any sanction after the event.

The Government considered, on the contrary, that this provision required avocats, who were "officers of the court" (auxiliaires de la justice), to respect a number of professional principles of a legal and ethical nature. The provision was sufficiently precise where, as in the instant case, the conduct being punished was contrary to the rules of the profession.

According to the Court’s case-law, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, the Müller and Others judgment previously cited, Series A no. 133, p. 20, § 29). Experience shows, however, that it is impossible to attain absolute precision in the framing of laws, particularly in fields in which the situation changes according to the prevailing views of society (ibid.).

In the instant case the legal basis of the sanction complained of lay solely in the special rules governing the profession of avocat. Article 106 of the relevant Decree of 9 June 1972 provides unequivocally that any avocat, even in his non-professional activities, has special obligations (see paragraph 25 above); and the Court of Cassation has held that these include the respect due to the judicial authorities (see paragraph 27 above).

That being so, the interference was "prescribed by law".

2. Legitimate aim

The applicant claimed that the sanction was not in pursuit of a legitimate aim; it resulted in his being prevented from expressing his ideas and his trade-union demands.

The Government, on the other hand, submitted that its purpose was the "prevention of disorder".

It is apparent from the evidence that Mr Ezelin incurred the punishment because he had not dissociated himself from the unruly incidents which occurred during the demonstration. As the Commission noted, the authorities took the view that such an attitude was a reflection of the fact that the applicant, as an avocat, endorsed and actively supported such excesses. The interference was therefore in pursuit of a legitimate aim, the "prevention of disorder".

3. Necessity in a democratic society

In the applicant’s submission, the interference of which he was complaining was not "necessary in a democratic society". To claim that he should have left the procession in order to express his disapproval of acts committed by other demonstrators was, he said, to deny his right to freedom of peaceful assembly.

The Government, on the other hand, submitted that the disputed measure did indeed answer a "pressing social need", having regard in particular to Mr Ezelin’s position as an avocat and to the local background. By not disavowing the unruly incidents that had occurred during the demonstration, the applicant had ipso facto approved them. Furthermore, they claimed, it was essential for judicial institutions to react to behaviour which, on the part of an "officer of the court" (auxiliaire de la justice), seriously impaired the authority of the judiciary and respect for court decisions. Lastly, the gravity of the two breaches of professional duty of which the applicant was accused justified the sanction imposed on him, which was a light, token sentence that did not offend against the proportionality principle laid down in the Court’s case-law.

The Commission contended that a disciplinary penalty based on an impression to which Mr Ezelin’s behaviour might give rise was not compatible with the strict requirement of a "pressing social need" and therefore could not be regarded as "necessary in a democratic society".

The Court has examined the disciplinary sanction in question in the light of the case as a whole in order to determine in particular whether it was proportionate to the legitimate aim pursued, having regard to the special importance of freedom of peaceful assembly and freedom of expression, which are closely linked in this instance.

The proportionality principle demands that a balance be struck between the requirements of the purposes listed in Article 11 § 2 (art. 11-2) and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places. The pursuit of a just balance must not result in avocats being discouraged, for fear of disciplinary sanctions, from making clear their beliefs on such occasions.

Admittedly, the penalty imposed on Mr Ezelin was at the lower end of the scale of disciplinary penalties given in Article 107 of the Decree of 9 June 1972 (see paragraph 25 above); it had mainly moral force, since it did not entail any ban, even a temporary one, on practising the profession or on sitting as a member of the Bar Council. The Court considers, however, that the freedom to take part in a peaceful assembly - in this instance a demonstration that had not been prohibited - is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion.

In short, the sanction complained of, however minimal, does not appear to have been "necessary in a democratic society". It accordingly contravened Article 11 (art. 11).

III. APPLICATION OF ARTICLE 50 (art. 50)

Article 50 (art. 50) provides:

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

The applicant sought compensation for damage and reimbursement of expenses under this provision.

A. Damage

Mr Ezelin claimed compensation in the amount of 25,000 French francs (FRF) for non-pecuniary damage, on the ground that publication of the sanction complained of in legal journals and the local publicity which ensued had harmed his reputation and interests.

The Government left the matter to the Court’s discretion in the event of the Court’s finding that damage had indeed been sustained.

The Delegate of the Commission submitted that compensation should be awarded, but did not suggest any figure.

In the circumstances of the case the finding that there has been a breach of Article 11 (art. 11) affords Mr Ezelin sufficient just satisfaction for the damage alleged.

B. Costs and expenses

The applicant also claimed reimbursement of FRF 40,000 in respect of fees, costs and expenses incurred in the Court of Cassation (FRF 15,000) and in the proceedings before the Convention institutions (Commission: FRF 10,000; Court: FRF 15,000).

No observations were made by the Government or the Delegate of the Commission.

On the basis of the information in its possession and its case-law on the subject, the Court, making an assessment on an equitable basis, allows the applicant’s claim in full.

FOR THESE REASONS, THE COURT

1. Holds unanimously that it is unnecessary to make a separate examination of the case under Article 10 (art. 10);

2. Holds by six votes to three that there has been a violation of Article 11 (art. 11);

3. Holds unanimously that this judgment in itself constitutes sufficient just satisfaction as to the alleged non-pecuniary damage;

4. Holds unanimously that the respondent State is to reimburse the applicant FRF 40,000 (forty thousand French francs) for costs and expenses.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 26 April 1991.

Rolv RYSSDAL

President

Marc-André EISSEN

Registrar

In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 53 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) partly dissenting opinion of Mr Ryssdal;

(b) dissenting opinion of Mr Matscher;

(d) concurring opinion of Mr De Meyer.

R.R.

M.-A.E.

* The case is numbered 21/1990/212/274. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990.

*** The amendments to the Rules of Court which came into force on 1 April 1989 are applicable to this case.

* Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 202 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[1] Point 1 of the operative provisions of the judgment.

[4] See in particular paragraph 52 of the judgment.

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You are here: BAILII >> Databases >> European Court of Human Rights >> EZELIN v. FRANCE - 11800/85 - Chamber Judgment [1991] ECHR 29 (26 April 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/29.html Cite as: (1992) 14 EHRR 362, 14 EHRR 362, [1991] ECHR 29