How to complain when you believe that your freedom of expression has been unlawfully restricted?
Any measures or sanctions that restrict your freedom of expression must only be taken if they are:
- provided in law
- necessary to achieve a legitimate aim: the protection of reputation, honour, private life or dignity of others, national security, prevention of disorder or crime etc.
- proportional to that aim
If the court or other law enforcement institution has issued restrictions on your freedom of expression which are not based on one of the criteria mentioned above, you have several ways to protect your rights.
Constitutional complaint
If the restriction of your freedom of expression is based on law, but you consider that the law itself is contrary to the freedom of expression guaranteed by the Declaration of Human and Civic Rights which has a constitutional value, you may submit a complaint to the Constitutional Council, known as the priority question of constitutionality (QPC).
This procedure is possible only if you are already involved in an ongoing legal proceeding before a court. You cannot complain directly to the Constitutional Council, you must submit your complaint to the court in charge of the ongoing legal proceeding. If this court finds your application admissible, it will forward it to the supreme court of its order (Court of cassation or Council of State). The supreme court will then send your complaint to the Constitutional Council if it is admissible. In your complaint you can request the Council to affirm that the challenged legal norm is unconstitutional.
- If the Constitutional Council initiates proceedings upon your request, the trial in your defamation case is halted until the ruling of the Constitutional Court.
- If the Constitutional Council rules that the law violated your freedom of expression, this law will be abrogated. However, sometimes the abrogation may be postponed by the Council, which means that the law can still produce effect on the current case. You may also submit a civil claim to a court of general jurisdiction requesting compensation from the State for your prejudice.
- If the Constitutional Council confirms that the challenged legal norm does not violate your freedom of expression, you may submit a complaint to the European Court of Human Rights.
important Submitting a complaint to the Constitutional Council is not a mandatory prerequisite before referring a case to the European Court of Human Rights. Read more about the conditions when submitting a complaint to the European Court of Human Rights.
Civil claim
The unlawful restriction of your freedom of expression may also be related to a court’s mistake in applying the law. For example, in restricting your freedom of expression, the court may fail to differentiate between defamation and public insult or assess the public interest in the information you have made public. In such cases, you may appeal the decision of the court of first instance to a higher court. If the higher court dismisses your appeal, you may submit a complaint to the Court of Cassation, the decision of which is final. If your complaint has been dismissed by the Court of Cassation, you may submit a complaint to the European Court of Human Rights.