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IN THE EUROPEAN COURT OF HUMAN RIGHTS WRITTEN COMMENTS BY INTERIGHTS THE INTERNATIONAL CENTRE FOR THE LEGAL PROTECTION OF HUMAN RIGHTS PURSUANT TO RULE 61 OF THE RULES OF THE COURT
INTERIGHTS
with statements of law by
26 March 2001
I. INTRODUCTION 9 February 2001. These comments are limited to the provision of relevant comparative law materials addressing the general principles involved in the determination of this case. 1.2 In particular, these comments draw upon the statements of legal experts (appended hereto) from ten democratic countries concerning the necessity of restrictions on the right to freedom of expression as exercised by a lawyer appearing on behalf of a client before a court. The countries surveyed include seven European jurisdictions � Belgium, Denmark, France, Italy, Sweden, the Netherlands and the United Kingdom � as well as Australia, Canada and South Africa. In addition, reference to the law of Spain is also made. II. INTEREST OF INTERIGHTS 2.1 INTERIGHTS is a London-based international human rights law centre. It is a registered charity, independent of all ideologies and governments. It provides legal representation in select cases before international human rights fora, advises on legal rights and remedies under international human rights law, and assists lawyers and non-governmental organisations in the preparation of cases before international and regional tribunals. Jointly with other organisations, INTERIGHTS has submitted comments in several prior cases before this Court, including Lingens v. Austria and Wingrove v. United Kingdom . 2.2 Manifestly, criminal prosecutions of lawyers for statements they make in court proceedings and in furtherance of the defence of their clients constitute a severe threat not only to the right of freedom of expression but also the right to a fair trial. A recent disturbing example of such a prosecution arose in Malaysia, where the criminal defence lawyer for Anwar Ibrahim (the former Deputy Prime Minister) suddenly became the target of a separate prosecution after he made statements in court indicating that his client was perhaps being poisoned in jail. A statement by this Court strongly setting forth the importance of a lawyer�s right to freely express and zealously defend his or her client in court � even when he or she makes statements that may be offensive or disturbing to those who hear them � would provide significant guidance not only to the Contracting States, but also to those countries around the world that look to this Court�s precedent in construing constitutional protections and drafting legislation. Establishing such a precedent would thus have effect not only in European countries, but also in national courts outside Europe � particularly those throughout the Commonwealth � and in other regional and international tribunals which have repeatedly cited this Court�s judgments. Moreover, such a statement would be consistent with and reinforce other international standards (infra para. 4.1). III. THE LEGAL ISSUE 3.1 This case concerns the criminal defamation conviction of the Applicant, a lawyer, based on statements she made in court while defending her client against criminal charges. The statements were presented orally and in writing through a memorandum which requested the exclusion of a particular witness�s testimony. In the course of this request, the Applicant criticised the use of this individual as a prosecution witness and more generally criticised the way the prosecutor had handled the case, indicating that he had abused his discretion and engaged in role manipulation. The prosecutor subsequently brought a criminal defamation action against the Applicant. The Applicant was ultimately convicted of negligent defamation and required, after the Supreme Court affirmed the conviction, to pay damages and costs. As set forth in the Court�s admissibility decision, this case concerns claims under Article 10. 3.2 In accordance with its jurisprudence, in assessing whether a violation has occurred, the Court considers first whether the Applicant has established that there has been an "interference" of her rights. Where there has been such an interference, the burden of proof then shifts to the government to establish convincingly that the interference was "prescribed by law;" imposed "pursuant to a legitimate aim;" and "necessary in a democratic society" to achieve that aim. These comments address only the final question of necessity. 3.3 In order to determine if a restriction is "necessary," the Court must assess "whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued, [and] whether the reasons given by the national authorities to justify it are relevant and sufficient." In considering these factors, the Court allows Contracting States a certain "margin of appreciation," but such margin "goes hand in hand with a European supervision." Bearing this standard in mind, these comments explore the relevant practices of other democratic countries � a factor the Court considers in assessing a restriction�s necessity. IV. DISCUSSION 4.1 The great majority of jurisdictions reviewed here accord a form of privilege to lawyers for statements they make while representing clients in court. Indeed, such privilege stands in conformity with the international principle that:
Although the extent and application of such privilege may differ from jurisdiction to jurisdiction, every country recognises that a lawyer�s ability to express him or herself is closely linked to the lawyer�s obligation to defend a client in court, particularly in criminal proceedings. Moreover, to the extent that restrictions are permitted on a lawyer�s statements in court, most jurisdictions reviewed here tend to favour the use of disciplinary over criminal sanctions. Where criminal sanctions are permitted in theory, in most jurisdictions they are rarely used in practice, and then usually only under extreme circumstances and if there is a showing of intent, not just mere negligence. Finally, almost all the jurisdictions recognise the fundamental difference between the role of an opponent-prosecutor and a judge and generally provide a corresponding increased protection for statements that are critical of a prosecutor.
1. Common Law Jurisdictions
4.2 Most of the jurisdictions reviewed accord some form of privilege to lawyers for allegedly defamatory statements they make in court. In many common law jurisdictions such as the United Kingdom , Australia and Canada, this privilege is absolute, applying even when statements are extreme and made with malice. Such an approach has been recognised repeatedly by courts as necessary to allow an advocate the freedom to argue forcefully on behalf of his or her client and without fear of liability for defamation actions � civil or criminal. As stated over a century ago in the leading English judgment, Munster v. Lamb :
As this passage reveals, and as the expert statements explain, the underlying reasons for such extensive protection from defamation actions include recognition that it is indispensable for the "safe administration of justice;" that it allows lawyers to argue as effectively as possible on the basis of facts which they cannot be sure are true; and also that it protects innocent lawyers from defending themselves against spurious claims. 4.3 In other common law jurisdictions, such as South Africa, a qualified privilege applies for similar reasons. And, although the privilege applies only when statements are "pertinent or germane to the issue" and "have some foundation," and may be defeated under certain conditions, such as with a showing of malice, courts have been careful to note that as long as the minimum requirements are met, counsel is entitled to make the submission, regardless whether in making it there is a measure of overstatement. Indeed, as one court noted, "in order to be afforded protection, counsel need not believe in the truth of the statement, and accordingly absence of grounds for such belief is, per se, inconclusive [to defeat the privilege]." During the undemocratic apartheid regime in South Africa , courts still took care to recognise the importance of a lawyer�s right to freely frame an argument:
4.4 Of course, even in jurisdictions where an absolute privilege applies against defamation actions, a lawyer�s freedom to speak is not boundless. Contempt of court may still form a basis for criminal liability, but only in rare and very extreme circumstances. Indeed, in the UK, Canada and Australia, the crime of contempt appears to be focused primarily on dealing with flagrant disrespect for the court itself, as opposed to an opponent or prosecutor, and for this reason, in both the UK and Australia, such an offence would likely not apply to criticism directed at an opponent. Even where the courts themselves are the targets of criticism, however, the UK and Canada have recognised the need for such criticism concerning the judicial process generally, and have accordingly set stringent standards for the offence. For example, in Canada, for the offence of contempt to be found, "particularly in the case of a lawyer, the misconduct must necessarily cause a serious, real, imminent risk of obstruction of the administration of justice, accompanied by dishonest intention or bad faith." Consistent with this standard, the Canadian Judicial Council has stated that "in our view, counsel should not be inhibited by the risk of contempt from presenting any submission." It is thus unsurprising that there have been no recent cases of contempt brought against lawyers in either the UK or Canada. 4.5 In short, therefore, statements made in good faith by a lawyer in defence of his client will probably not result in a punishment imposed by a court. In the event that such statements are particularly harsh, the lawyer of course may be subject to disciplinary action. Even in these circumstances, however, restrictions are imposed with care. In England and Wales for example, the rules of professional conduct governing barristers and solicitors are substantially the same in stating that:
In Canada, disciplinary proceedings are also carefully circumscribed not to impede on a lawyer�s ability to advocate forcefully. In Law Society of Upper Canada v. Clark , for example, a disciplinary case was brought against a lawyer for statements he made in court stating that various Attorneys General of Canada, judges and lawyers, were guilty of criminal conduct, including treason, fraud and crimes related to genocide of aboriginal peoples. Despite these harsh statements, the Law Society found the lawyer�s statements did not constitute professional misconduct and that "the Law Society should be loath, in professional discipline proceedings, to become the arbiter of lawyers� advocacy techniques." It further stated that:
2. Civil Law Jurisdictions
4.6 In civil law jurisdictions as well, there is generally some form of privilege or immunity that attaches to statements made by lawyers in court and in furtherance of their client�s case. In Belgium, for example, Article 452 of the Criminal Code provides that statements presented in the courtroom may not form the basis of a criminal prosecution as long as those statements are related to the court case or the parties involved. In addition, Article 444 of the Code of Procedure further protects lawyers not only from criminal punishment, but also from civil liability and disciplinary action. Specifically, Article 444 provides that "lawyers are free to exercise their profession for the defence of justice and of the truth," and protects lawyers as long as their statements are actually necessary for the case. Finally, although Article 445 of the Code of Procedure serves to limit a lawyer�s immunity for those statements which attack the Monarchy, the Constitution, the laws of the Belgian people or the authorities, its effect is narrowly proscribed. First, Article 445 applies only when such statements are made in bad faith or with malicious intent. Second, Article 445 permits only the initiation of a disciplinary proceeding, and does not allow for criminal or civil liability. And finally, even when Article 445 is applicable, disciplinary proceedings may only begin after the president of the court raises the matter with the Council of the Order of Lawyers. In fact, as a result of the immunity provided for in Articles 452 and 444, and the narrow circumstances under which such immunity may be withdrawn, the prosecution of � and even disciplinary proceedings against � lawyers for defamatory or insulting statements made in court are particularly rare in Belgium. 4.7 Similarly, in Denmark, there is a well-established tradition of recognising a privilege for lawyers to speak freely in court. In particular, such a privilege has been recognised by the courts as defeating criminal defamation charges. In one case, a court found that although the closing arguments made by a criminal defence lawyer � which accused a railroad company of knowing that people would be killed � were in fact defamatory, the lawyer could not himself be found liable because the statements had been put forward in furtherance of the defence. In addition to this court-recognised privilege, Section 269 of the Penal Code broadly provides that a defamatory statement shall not be punishable if the author "in good faith has been under an obligation to speak or has acted in justified protection of obvious public interest or of the personal interest of himself or others." As set forth in the expert statement, because a lawyer has an obligation to put forth arguments in furtherance of his client�s case and in justified protection of his client�s interests, Section 269 serves also to protect a lawyer�s freedom of expression. Finally, the Administration of Justice Act (AJA) and the Ethical Guidelines for Lawyers provide additional mechanisms for imposing restrictions on lawyers outside the Penal Code. In fact, over the last 30 years there have been only four reported cases relating to lawyers under the AJA, and it appears that it is generally used against lawyers who are persistently using insulting language, and results initially only in a warning. The application of the professional rules to expression cases most commonly ends in warnings or reprimands. 4.8 In The Netherlands, it is generally accepted that a lawyer making a defamatory statement in the course of defending a client has not committed the crime of defamation, as long as such statements are made in good faith as a reasonable execution of the lawyer�s duty to put forward his client�s defence. Indeed, because of the defence lawyer�s role in safeguarding the fundamental right to a fair trial and the underlying importance of the independence of the profession as a whole, the use of disciplinary proceedings are favoured in the Netherlands over criminal restrictions imposed by the State. Perhaps unsurprisingly therefore, it appears that there have been no lawyers prosecuted for defamatory statements made in the interests of the defence of their client. Moreover, even disciplinary tribunals recognise that a lawyer must be able to put forward any argument that a court could (however remotely) consider in support of a client�s defence. Accordingly, only statements that are entirely irrelevant or manifestly untrue are likely to be subject to any form of discipline. In fact, statements that a prosecutor has abused his discretion are regularly raised by lawyers in criminal courts. As long as lawyers are able to establish that their claims may have some basis, a judge is obliged to examine the claim. Accusations that could be relevant but are entirely unsubstantiated are simply disregarded. 4.9 In both Spain and Sweden, a recognition of the lawyer�s role in zealously defending a client and, ultimately, in ensuring the client�s right to a fair trial, likewise means that the lawyer�s right to freely express him or herself in court must be carefully protected. In Spain, the Constitutional Court has explicitly ruled that in cases of lawyers making defamatory statements, disciplinary measures should be used over criminal sanctions and that because of the implication of fair trial issues, lawyers must be afforded a wider protection to speak freely in court. In Sweden, where freedom of expression is traditionally well protected, there are apparently no reported cases of an attorney being prosecuted for defamation, while there are a number of reported disciplinary proceedings before the Law Society � indicating that lawyers who make allegedly defamatory statements are subject only to disciplinary restrictions. 4.10 In Italy, lawyers criticising a prosecutor in a public hearing had traditionally been open to prosecution under Articles 341 and 343 of the Criminal Code, which enumerated "crimes against public administration" and had first been enacted under the fascist regime. Recent, significant changes in the Italian system, however, indicate that there is an increasing protection of a lawyer�s right to express him or herself in court. In particular, in 1999, the Constitutional Court broadly interpreted Article 598, which provides immunity from punishment for statements made by parties or lawyers before a judicial authority. Although this immunity had earlier been construed not to apply to crimes of contempt, the Constitutional Court has now indicated that it applies across the board to contempt as well as injury and defamation. Moreover, Article 341, after initially being declared unconstitutional in part, was subsequently entirely abolished by new legislation in 1999. Finally, a new Criminal Code of Procedure for the first time shifts the role of the prosecutor in criminal proceedings, removing many of his earlier privileges and providing defence attorneys with an equality of arms. All of these developments mean that a lawyer�s right to argue forcefully and freely in court is more secure today, and will likely be increasingly protected as these new changes become settled and reinforced. 4.11 In France too, a shift in attitude appears to be developing, with greater protection afforded to a lawyer�s freedom of expression. In fact, Article 41 of the law of 29 July 1881 provides for immunity for allegedly defamatory or insulting statements made before a court, but this article has traditionally been narrowly interpreted and applied. In 1999, however, the Court of Cassation interpreted the Article more broadly, concluding that the immunity applied to a case in which a lawyer, who was being investigated for aiding and abetting in the removal of a minor child, sent an investigating judge a letter stating that he was being harassed by certain magistrates and that their behaviour might be due to the fact that he had knowledge of the possible existence of a child prostitution ring. Although the court of appeal had affirmed the lawyer�s conviction because it deemed that the remarks made in the letter were not pertinent to the exercise of the rights of defence, the Court of Cassation reversed, finding instead that the remarks could not be found to be irrelevant to the case and that accordingly, the immunity of Article 41 applied. B. Intent 4.12 While the general principles outlining when and how lawyers might be liable for statements they make in court are outlined above, it is important also to note that in many jurisdictions, no criminal conviction may be imposed without the prosecution establishing an element of intent. For example, in Belgium, the laws under which a lawyer may be criminally prosecuted for speech all require a showing of malicious intent or animus iniurandi, intent to defame or harm. Similarly, in Denmark, The Netherlands and France, an element of intent must be proven before an individual will be criminally punished for defamatory statements. In South Africa as well, criminal liability for defamation attaches only when a clear showing of intent has been established by the prosecution. Such intent must be tested subjectively, and it has been expressly noted that "[n]egligence is insufficient." Such an additional element of proof may provide an added safeguard for lawyers in particular, whose arguments may at times include overstatement, even as they are being presented in good faith. C. Distinction Between the Role of a Prosecutor and Judge 4.13 Finally, it should also be noted that in many jurisdictions � as this Court and others have found � there is a clear distinction between the role of a prosecutor and a judge. As such, critical statements aimed at a prosecutor are more likely to be tolerated than those aimed at a judge or the court as a whole. The distinction is manifested in common law jurisdictions by the fact that the crime of contempt is largely aimed at statements or behaviour directed at the court rather than an opponent or a prosecutor (supra para. 4.4). In South Africa, courts have explicitly recognised the importance of being able to criticise the prosecution. In one case, where a defendant (also a practising attorney) criticised "the State�s" "malicious conduct" in prosecuting him in relation to a motor vehicle accident, the court noted:
Moreover, the court noted that "the State, like any other litigant, must submit to [sarcastic and derisive] comments from its opponents. He who enters the lists must be prepared to take verbal attacks." In Denmark, there is similarly a distinction between criticism directed at a judge and at a prosecutor, with the prosecutor recognised as an opponent in court who must suffer the arguments and critical statements that a lawyer asserts in the course of defending his or her client. In The Netherlands and Italy, where prosecutors are traditionally seen as part of the judiciary, there is nevertheless a distinction when a prosecutor functions as an opponent in court. Indeed, Dutch lawyers regularly raise the defence in court that a prosecutor has misused or abused his powers, supra para. 4.8, and in Italy, the new Criminal Code of Procedure means that prosecutors are now increasingly seen as a "party" to the proceedings, supra para. 4.10. V. CONCLUSION
5.1 The ten democratic countries surveyed for these comments broadly protect
a lawyer�s right to freedom of expression, recognising that particularly in
criminal proceedings, such a right is linked fundamentally to the guarantee of a
fair trial and the lawyer�s duty to present a full defence. While a lawyer�s
behaviour and statements may certainly be subject to restrictions, these are
generally imposed only when statements are defamatory and entirely unrelated
to the proceedings or the parties. Often, disciplinary proceedings are favoured
over the use of criminal sanctions, reflecting in part perhaps this Court�s
own conclusions that criminal convictions � even those resulting in relatively
modest punishment � will serve to chill even appropriate and measured
criticism. In fact, in most jurisdictions, criminal proceedings against lawyers
for their statements in court are rare (if non-existent), and occur only in
extreme circumstances and after an element of intent has been established.
Finally, because many jurisdictions recognise the prosecutor�s role as an
opponent, it is understood that they must withstand forceful criticism by
defence lawyers. In short, under most of the laws reviewed here, it is unlikely
that a lawyer would be criminally prosecuted for statements criticising the way
a prosecutor handles a case or indicating that the prosecutor has exercised an
abuse of discretion. Resort to such criminal punishment would not be deemed
necessary. |
