The European Court of Human Rights (ECtHR) decided on 20 April that the conviction of Alain Ottan for public comments contesting the ethnic origin of members of an assize court jury, violated his freedom of expression. In its judgment in the case of Ottan v. France (application no. 41841/12) the European Court of Human Rights held, unanimously, that there had been: a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The ECtHR case originated with the acquittal in 2009 of a gendarme who had killed a young man of foreign origin, living in a working-class neighborhood, during a car chase in 2003. A few minutes after the verdict, in response to a question from a journalist, the applicant, a lawyer who had been representing the victim’s father, stated that the acquittal was not a surprise, given the ethnic composition of the jury, which was exclusively composed of “whites.” The Montpellier Court of Appeal imposed a disciplinary penalty, namely a warning, finding that the lawyer had failed to comply with his professional ethical obligations of sensitivity and moderation.

Disproportionate penalty

The ECtHR found that the contested remarks had been made as part of a debate on the functioning of the criminal justice system, in the context of media coverage of a case. Taken in their context, they did not amount to an insulting or racially motivated accusation but concerned the impartiality and representative nature of the assize court jury; in other words, the lawyer had made a general statement about the organization of the criminal courts. Capable of causing offense, these remarks were nonetheless a value judgment with a sufficient factual basis, and formed part of the defense of the lawyer’s client.

Lastly, the Court considered that the sentence – a warning, the lightest punishment possible – had nonetheless been disproportionate and had not been necessary in a democratic society.