Morice v. France [GC]

Information Note on the Court’s case-law 184

April 2015

Morice v. France [GC] - 29369/10

Judgment 23.4.2015 [GC]

Article 10

Article 10-1

Freedom of expression

Lawyer’s conviction for complicity with a newspaper in the defamation of investigating judges: violation

Facts – In 1995 Bernard Borrel, a judge who had been seconded in the context of cooperation agreements between France and Djibouti, was found dead. The investigation by the Djibouti gendarmerie in the days that followed concluded that he had committed suicide. His widow, disputing the finding of suicide, filed a complaint as a civil party, and appointed the applicant to represent her in the proceedings. Two judicial investigations were opened in respect of premeditated murder committed by a person or persons unknown. The judicial investigation was assigned to investigating Judges M. and L.L.

In June 2000 the Indictments Division of the Court of Appeal removed those judges from the case and transferred it to a new investigating judge, Judge P. Shortly afterwards the same Division upheld a request by the applicant for the withdrawal of the high-profile “Scientology” case from Judge M.

In September 2000 the applicant and one of his colleagues wrote to the French Minister of Justice in connection with the judicial investigation into Judge Borrel’s death. They stated that they were approaching the Minister once again about the conduct of Judges M. and L.L. which was “completely at odds with the principles of impartiality and fairness” and they asked for an investigation to be carried out by the General Inspectorate of Judicial Services into the “numerous shortcomings ... brought to light in the course of the judicial investigation”.

The following day, an article in the newspaper Le Monde stated that Mrs Borrel’s lawyers had “vigorously criticised” Judge M. to the Minister of Justice, accusing her in particular of conduct which was “completely at odds with the principles of impartiality and fairness”, and adding that she had apparently failed to register an item for the case file and to transmit it to her successor.

The two judges filed a criminal complaint as civil parties against the publication director of Le Monde, the journalist who had written the article and Mr Morice, accusing them of the offence of public defamation of a civil servant. The applicant was found guilty of complicity in that offence by the Court of Appeal and was ordered to pay a fine of EUR 4,000. The sum of EUR 7,500 in damages was awarded to each of the judges, to be paid by the applicant jointly with the two other defendants.

In a judgment of 11 July 2013 a Chamber of the Court found, by six votes to one, that there had been no violation of Article 10. On 9 December 2013 the case was referred to the Grand Chamber at the applicant’s request (see Information Note 169).

Law – Article 10: The applicant’s conviction had constituted an interference with his right to freedom of expression, as guaranteed by Article 10 of the Convention. The interference had been prescribed by law and its aim had been the protection of the reputation or rights of others.

In convicting the applicant, the Court of Appeal had taken the view that the mere fact of asserting that an investigating judge’s conduct was “completely at odds with the principles of impartiality and fairness” was a particularly defamatory allegation. That court had added that the applicant’s comments concerning the delay in forwarding the video-cassette and his reference to the handwritten card from the public prosecutor of Djibouti to Judge M., in respect of which the applicant had used the term “connivance”, merely confirmed the defamatory nature of the accusation, the “veracity” of the allegations not having been established and the applicant’s defence of good faith being rejected.

(a) The applicant’s status as lawyer – While it was not in dispute that the impugned remarks fell within the context of the proceedings, they had been aimed at investigating judges who had been removed from the proceedings with final effect at the time they were made. His statements could not therefore have directly contributed to his task of defending his client, since the judicial investigation had by that time been entrusted to another judge who was not the subject of the criticism.

(b) Contribution to a debate on a matter of public interest – The applicant’s impugned remarks, which concerned the functioning of the judiciary, a matter of public interest, and the handling of the Borrel case – one which had attracted significant media attention – had fallen within the context of a debate on a matter of public interest, thus calling for a high level of protection of freedom of expression, with a particularly narrow margin of appreciation accordingly being afforded to the authorities.

(c) Nature of the impugned remarks – The impugned statements had been more value judgments than pure statements of fact, in view of the general tone of the remarks and the context in which they had been made, as they had reflected mainly an overall assessment of the conduct of the investigating judges in the course of the investigation.

The “factual basis” for those value judgments had been sufficient. The failure by the judge to forward the video-cassette had not only been established but it was also sufficiently serious for it to be recorded by Judge P. in the file. As for the handwritten card, in addition to the fact that it had shown a certain friendliness on the part of the public prosecutor of Djibouti towards Judge M., it had accused the civil parties’ lawyers of “orchestrating their manipulation”.

Lastly, it was an established fact that the applicant had acted in his capacity as lawyer in two high-profile cases in which Judge M. was an investigating judge. In both of them the applicant had succeeded in obtaining findings by the appellate courts that there had been shortcomings in the proceedings, leading to the withdrawal of the cases from Judge M.

Moreover, there had been a sufficiently close connection between the expressions used by the applicant and the facts of the case, and his remarks could not be regarded as misleading or as a gratuitous attack.

(d) Specific circumstances of the case

(i) The need to take account of the overall background – The background to the case could be explained not only by the conduct of the investigating judges and by the applicant’s relations with one of them, but also by the very specific history of the case, its inter-State dimension and its substantial media coverage. However, the Court of Appeal had attributed an extensive scope to the impugned remark of the applicant criticising an investigating judge for “conduct which [was] completely at odds with the principles of impartiality and fairness”, whereas that quotation should have been assessed in the light of the specific circumstances of the case, especially as it was in reality not a statement made to the author of the article, but an extract from the letter sent by the applicant and his colleague to the Minister of Justice. In addition, at the time when the applicant answered his questions the journalist had already been informed of the letter to the Minister by his own sources. The article’s author had been solely responsible for the reference to the disciplinary proceedings against Judge M. in the context of the “Scientology” case. Lawyers could not be held responsible for everything appearing in an “interview” published by the press or for actions by the press.

The Court of Appeal had thus been required to examine the impugned remarks with full consideration of both the background to the case and the content of the letter, taken as a whole.

The use of the term “connivance” could not constitute “in itself” a serious attack on the honour and reputation of Judge M. and the public prosecutor of Djibouti.

In addition, the applicant’s statements could not be reduced to the mere expression of an antagonistic relationship with Judge M. The impugned remarks had formed part of a joint professional initiative by two lawyers, on account of facts that were new, established and capable of revealing serious shortcomings in the justice system, involving the two judges who had formerly been conducting the investigation in a case in which the lawyers’ clients were civil parties.

While the applicant’s remarks certainly had a negative connotation, it had to be pointed out that, notwithstanding their somewhat hostile nature and seriousness, the key question in the statements concerned the functioning of a judicial investigation, which was a matter of public interest, thus leaving little room for restrictions on freedom of expression. In addition, a lawyer should be able to draw the public’s attention to potential shortcomings in the justice system and the judiciary might benefit from constructive criticism.

(ii) Maintaining the authority of the judiciary – Judges M. and L.L. were members of the judiciary and were therefore subject to wider limits of acceptable criticism than ordinary citizens and the impugned comments could therefore be directed against them in that capacity.

In addition, the applicant’s remarks had not been capable of undermining the proper conduct of the judicial proceedings, in view of the fact that the higher court had withdrawn the case from the two investigating judges concerned by the criticisms.

For the same reasons, and taking account of the foregoing, the applicant’s conviction could not serve to maintain the authority of the judiciary.

(iii) Use of available remedies – The referral to the Indictments Division of the Court of Appeal had patently shown that the initial intention of the applicant and his colleague had been to resolve the matter using the available legal remedies. In reality, it was only after that remedy had been used that the problem complained of had occurred, as recorded by the investigating judge P. in the file. At that stage the Indictments Division was no longer in a position to examine such complaints, precisely because it had withdrawn the case from Judges M. and L.L. In any event, four and a half years had already elapsed since the opening of the judicial investigation, which had still not been closed at the time of the Court’s judgment. For their part, the civil parties and their lawyers had been active in the proceedings.

Moreover, the request to the Minister of Justice for an investigation into the new facts had not constituted a judicial remedy – such as to justify possibly refraining from intervention in the press – but a mere request for an administrative investigation subject to the Minister’s discretion.

Lastly, neither the Principal Public Prosecutor nor the relevant Bar Council or chairman of the Bar had found it necessary to bring disciplinary proceedings against the applicant on account of his statements in the press, although such a possibility had been open to them.

(iv) Conclusion as to the circumstances of the case – The impugned remarks by the applicant had not constituted gravely damaging and essentially unfounded attacks on the action of the courts, but criticisms levelled at Judges M. and L.L. as part of a debate on a matter of public interest concerning the functioning of the justice system, and in the context of a case which had received wide media coverage from the outset. While those remarks could admittedly be regarded as harsh, they nevertheless constituted value judgments with a sufficient “factual basis”.

(e) Sanctions imposed – The applicant had been ordered to pay a fine of EUR 4,000 and, jointly with the other two defendants, EUR 7,500 in damages to each of the two judges who had filed the complaint as civil parties. Thus the sanction imposed on him had not been the “lightest possible”, but, on the contrary, one of some significance, and his status as a lawyer had even been relied upon to justify greater severity.

In view of the foregoing, the judgment against the applicant for complicity in defamation could be regarded as a disproportionate interference with his right to freedom of expression, and had not therefore been “necessary in a democratic society” within the meaning of Article 10 of the Convention.

Conclusion: violation (unanimously).

The Court also found a violation of Article 6 § 1 in respect of the applicant’s complaint that, before the Court of Cassation, his case had not been given a fair hearing by an impartial tribunal, on account of the presence on the bench of a judge who had previously and publicly expressed his support for one of the civil parties. The applicant’s fears about a lack of impartiality could be regarded as objectively justified.

Article 41: EUR 15,000 in respect of non-pecuniary damage; EUR 270 in respect of pecuniary damage.

(See also July and SARL Libération v. France, 20893/03, 14 February 2008, Information Note 105)

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This summary by the Registry does not bind the Court.

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