A comment is a verbal or writtenremark2 on a question of fact or law that:

Comments may be made in particular (1) on the whole case5 (2) on the motions, observations and remedies of the opposing party (prosecutor, victim, co-defendant, etc.), and (3) on the individual means of evidence. It should be noted that none of the rightholders knowingly exercises this right, as it is most often triggered by unexpected situations.6

The quality expectations for the comments are summarised below:

With regard to the defence, it should be noted that the Criminal Code directly mentions this right only in relation to the accused, but it is obvious that in this case it is a mere legal imprecision, not a deliberate narrowing of the rights of the defence.10 This legislative superficiality is perhaps due to the misconception that it is primarily the responsibility of the accused to comment. However, this is clearly refutable, especially based onexpert and documentary evidence.11

Commenting is of course only a right, not an obligation. Its practice is primarily a matter of litigation, but there are some glaring cases in which it is almost obligatory to record a comment (e.g. there is a contradiction in the content of the testimony of the same witness, the expert opinion suffers from some obvious error of content, the conduct of the opposing party in a confrontation raises doubts as to the veracity of his testimony).12

The exercise of this right should not be hindered by the court’s conduct of the trial, in particular if the single judge or the president of the chamber does not “like” continuous comments. All right-holders, as well as the court, must bear in mind that the comment is not an exceptional measure, but a fundamental procedural right which is integrally linked to the whole of the hearing and its “rhythm”. On this basis, the court is not only obliged to tolerate the exercise of this right, but in many cases it must expressly invite the persons entitled (interested parties) to make reasoned comments (e.g. at the end of a given hearing, in relation to possible comments on the testimony). It is another matter that there are also unwritten rules on the exercise of this right, and therefore the right-holder should at least indicate by a show of hands if he has something to say to the court.

Importantly, the exercise of this right should never lead to a lengthy argument between the commentator and the court. The comment may usually be a one-off raising of a particular issue, but the court is always legally and ethically bound to put this on the record. It is also often the case that the single judge or the president of the chamber prevents or stops the comment. In this case, the fact that this is done must also be recorded in the minutes, with the requirement that the right-holder must then refrain from making the same observation again.13 If the commentrejected by the court is manifestly well founded, the substance of the observation or the objections to the conduct of the court may be returned to at the next hearing.

The Court found a breach of the Convention:

Perhaps the most memorable is the 2006 case in which the liability of Dr. István K., a lawyer, was finally established for the crime of false accusation. The factual basis of the prosecution was that the defendant’s client had expressed serious concerns about the prosecutor’s conduct in several submissions, and had thus linked the prosecutor to, inter alia, the commission of a crime.19 In my view, in this case, the prosecution and the court erred not only in finding that the defender was criminally liable, but also in classifying the text of the pleadings written by the client as statements of fact rather than opinion.20

There are also case law decisions on the assessment of the right to freedom of expression that differ from the above: a 2004 judgment stated that freedom of expression “requires special protection when it concerns public affairs and the exercise of public authority.”21 Since the prosecution exercises public authority in its proceedings, it is my view that general opinions on the prosecutor’s proceedings – in the form of comments – can be expressed much more widely in both oral and written actions (e.g. pleadings). Fundamental rights must also be fully respected in judicial proceedings, and must not be excluded from the sphere of justice because of its perceived inviolability, nor should they weaken the already low effectiveness of the defence of the prosecution.

In Schöpfer v. Switzerland (1998), the Court of Justice ruled that there had been no breach of the Convention’s article on freedom of expression in imposing a disciplinary sanction on a lawyer who had publicly criticised the administration of justice (and had, inter alia, alleged serious breaches of the law in the process). In imposing the fine, the Bar Association of Lucerne also noted that the applicant had failed to bring his complaints to the attention of the Public Prosecutor’s Office and the Court of Appeal, which were the supervisory bodies of the prefecture concerned. In other words, he had failed to exercise the discretion expected of lawyers in relation to pending cases and had also infringed the authority of the judicial authorities of the Canton of Lucerne. In its decision, the Court of Justice emphasised that lawyers enjoy a central position in the administration of justice, since they act as intermediaries between citizens and the courts. Given the present situation, the legal profession as a whole can therefore be expected to contribute to the effective functioning of the judiciary.22