CEDH · CASELAW;CLIN;ENG — 16 mai 2024

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Luxembourg - 36681/23 Judgment 16.5.2024 [Section V] Article 10 Article 10-1 Freedom of expression Sentencing of a lawyer to a criminal-law fine for insulting a judge in an email he sent to the relevant authorities to report a situation he found unacceptable: violation Facts – On 27   May 2019 an investigating judge (“the judge”) ordered an expert assessment of an electrical facility that had caused a person’s death in the factory of a company for which the applicant worked as a lawyer. The judge also had official seals placed on the facility. Starting the next day, the applicant made several requests to the judge to have the seals removed as soon as possible before a public holiday on 30   May 2019, in order to prevent production from shutting down and several hundred workers from being temporarily laid off. At 9.29   a.m. on 29   May 2019 the judge told the applicant by email that the seals would be removed “as soon as the court-appointed expert [had] finished”. The applicant knew that the expert had performed all necessary tasks but had not removed the seals. He had also sent the judge an email at 3.18   p.m., which had gone unanswered. In his capacity as a lawyer, he therefore sent an email at 4.24   p.m. to the Minister of Justice and the Minister of the Economy, with a copy to the Principal State Prosecutor, informing them of the situation while also making some criticisms of the judge. The seals were removed that day at 7   p.m., but the judge did not notify the applicant. The applicant was sentenced to a criminal-law fine for contempt of court on account of the statements he had made about the judge in his email to the Ministers. He was found to have used subtle turns of phrase in that email to denigrate the investigating judge, with the aim of causing insult to him, within the framework of a lawful and legitimate complaint. Law – Article   10: The applicant’s criminal conviction had amounted to an interference, prescribed by law, with his right to freedom of expression. Its aim had been to protect the reputation or rights of others and to maintain the authority and impartiality of the judiciary. The applicant had taken measures that he had considered to be justified in the interests of his client, because he had not been informed that the judge had in fact ordered the seals to be removed once the expert assessment had been completed. In an uncertain and urgent situation, his actions had been intended to report a potential omission by the judge, which might have amounted to a failure of the public justice system. The principle of the legitimacy of his actions had been acknowledged both by the domestic courts and by the Government. The issue in the present case was whether the domestic courts had given relevant and sufficient reasons for convicting the applicant on the basis of the allegations contained in the disputed email passages. The Court considered that the statements in issue – that is, “It is not the first time that I have had an incident with [the judge]”, “It goes without saying that all this is totally unacceptable”, and “You can imagine what I think of that” – taken together, amounted to value judgments. In substance, they were indicative of the poor relations between the applicant and the judge in question. In addition, the Court considered that those value judgments had a sufficient “factual basis”. The applicant had mentioned “incidents” that had occurred in his dealings with the judge in the past – and provided evidence. Admittedly, they had no direct link with the present case. However, they could reasonably be considered a sufficient factual basis to explain why the applicant had felt that, given the urgency arising from the upcoming public holiday, the judge’s failure to reply had been an unacceptable circumstance that needed to be reported to the authorities in charge of maintaining order in the courts at the relevant time. Moreover, the value judgment implied in the adjective “unacceptable”, which the applicant had used to describe the situation, had been based on elements such as the risk of an imminent financial loss and the temporary lay-off of some 200   workers. The Court reiterated that – save in the case of gravely damaging attacks that were essentially unfounded – bearing in mind that judges formed part of a fundamental institution of the State, they might as such be subject to personal criticism within the permissible limits, and not only in a theoretical and general manner. When acting in their official capacity they might thus be subject to wider limits of acceptable criticism than ordinary citizens. In the present case, while the applicant’s statements had had indisputably disparaging connotations and had been expressed in a critical tone towards the judge, they could not be characterised as insulting for the purposes of Article   10. The comments in the disputed email had been made in writing solely to the authorities in charge of maintaining order in the courts at the relevant time and had not been made public in any way. Intended to report a situation that the applicant had found unacceptable, the statements, taken in context as they should have been, could not be considered a “gratuitous personal attack” against the judge. They had also been used in the context of the applicant’s defence of his client’s interests. In this respect, the applicant had not made the statements in issue as part of the criminal defence of his client. However, the Court considered that, in the specific circumstances of the case, it was of little importance that the applicant’s client had not been a party to criminal proceedings in the strict sense of the term. It was indisputable that, following a fatal industrial accident at one of its sites, the applicant’s client had inevitably been impacted by the situation, both as an employer and as a potential defendant. The expressions used by the applicant in his disputed email therefore had to be examined in their context, namely the applicant’s defence of his client’s interests in an urgent situation. This was notwithstanding the fact that his client had the status neither of civil party nor of defendant in criminal proceedings. Lastly, the Court was obliged to observe that the expressions used by the applicant could be characterised as wholly inappropriate. In the context of the case, however, they certainly did not lie in the criminal sphere. The applicant had been ordered to pay a criminal-law fine of EUR   1,000, together with “token” damages of one euro and procedural costs of EUR   1,500 in respect of the first-instance proceedings. The Court considered that there could be no justification for those sanctions. Having regard to all the foregoing considerations, the Court found that the reasons given by the criminal courts could not be regarded as relevant and sufficient justification for the interference with the applicant’s right to freedom of expression. Those courts had thus not struck a fair balance between the need to maintain the authority of the judiciary and the need to protect the applicant’s freedom of expression in his capacity as a lawyer. In these circumstances, the Court considered that the applicant’s conviction had not been proportionate to the legitimate aim pursued and thus had not been “necessary in a democratic society”. Conclusion : violation (unanimously). Article   41: finding of a violation sufficient in respect of non-pecuniary damage. (See also Coutant v.   France (dec.), 17155/03, 24   January 2008, Legal Summary ; Morice v.   France [GC], 29369/10, 23   April 2015, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .