108. The Court notes in the instant case that Article 410 of the Criminal Code
punishes anyone who publicly seeks to discredit a judicial act or decision,
by acts, speech or writing, under conditions likely to undermine the authority
of the judiciary or its independence. Excluded from criminal liability (or
incrimination) are purely technical comments in specialised journals as well
as acts, speech or writings calling for the review of a conviction.
109. The Court notes, first, that the restrictions on certain rights and freedoms
must be prescribed by law, and be consistent with international human rights
standards and that domestic laws restricting freedom of expression be clear,
foreseeable and consistent with the purpose of the Charter and international
human rights instruments. They must also apply to all persons, which is the
case here.30
110. Second, regarding the legitimacy of the purpose of the restriction, the Court
underlines that the general restriction clause under Article 27(2) of the
Charter refers to respect for the rights of others, collective security, morality
and the common good. The Court also considers that national security,
public order and public morality are legitimate restrictions.31
111. In the instant case, the Court notes that the Respondent State restricted
comments to specialised journals only. However, the Court is of the opinion
that specialised journals are not the only means of communication for the
dissemination of technical opinions on court decisions. These means of
communication may also be the Internet, newspapers, radio or television
broadcasts, or courses developed by teachers, etc.
Sébastien Germain Marie Aikoué Ajavon v. Republic of Benin, ACtHPR, Application No. 062/2019,
Judgment of 4 December 2020, § 122.
31 Idem, § 123.
30
31