French Lawyer’s Conviction for Public Defamation a Violation of Right to Freedom of Expression

05 May 2015

Author: Olivia O'Kane
Practice Area: Media and Defamation

The European Court of Human Rights Grand Chamber has held that a French lawyer’s criminal conviction for public defamation in respect of criticisms made against two French Judges violated Article 10 (freedom of expression) of the European Convention of Human Rights.

The applicant, a lawyer named Oliver Morice, had acted for the widow of the French Judge Bernard Borrel in a judicial investigation into his controversial death in 1995. Subsequent to the conclusion of the judicial investigation, the Paris Court of Appeal set aside the decision and transferred the investigation to a new investigating Judge. The newly appointed Judge indicated in his report that there were notable procedural shortcomings in the original investigation and uncovered unusually friendly cooperation between the public prosecutor and the one of the Judges during the investigatory process.

In light of the observations made by the investigating Judge in the report, the applicant and his colleague wrote a letter to the French Minister of Justice that contained criticisms in relation to the conduct of the Judges in the initial judicial investigation. The criticisms included the comment that the Judges were “completely at odds with the principles of impartiality and fairness”.  In addition extracts from the letter as well as subsequent statements made to a French journalist including a statement from the applicant that there was “connivance between the prosecutor and the French Judges”, were published in the French national newspaper Le Monde.

In subsequent national judicial proceedings the applicant was convicted of complicity in the offence of public defamation of a civil servant by reason that the admissible limits of freedom of expression in criticising the action of the Judges had been overstepped. The court was satisfied that the comments in question were serious and insulting, and that they were capable of unnecessarily undermining public confidence in the judicial system.  An application was lodged with the European Court of Human Rights in respect of a claim by the Applicant that his conviction violated Article 10. This contention was unanimously rejected by the Court who ruled that the applicant’s Article 10 rights had not been violated.

The Grand Chamber Judgement

On 3 October 2013 the applicant requested that the case be referred to the Grand Chamber under Article 43 of the Convention. On the 23rd April 2015 the Grand Chamber held, unanimously that there had been a violation of Article 10. The court found that the comments expressed should be interpreted as value judgements with a sufficient factual basis as the Judge appointed subsequently to the initial investigation had identified procedural shortcomings. Additionally the comments did not exceed the limits of Article 10 as they concerned a matter of public interest, namely the functioning of the justice system. However, significantly the court emphasised that this presumption in favour of a lawyer, does not necessarily extend to journalists. The court reasoned that lawyers had a special position in the administration of justice which made them first-hand witnesses of any shortcomings with the primary responsibility to defend their clients. In contrast journalists were external witnesses with the task of informing the public;

“Lawyers, for their part, merely speak in their own name and on behalf of their clients, thus also distinguishing them from journalists, whose role in the judicial debate and purpose is intrinsically different”

The Grand Chamber was keen to emphasise that this reasoning did not afford any new right to lawyers.

In terms of a Northern Irish context, the case the has interesting parallels to the controversy surrounding the remarks made by the former Secretary of State Peter Hain in relation to Lord Justice Paul Girvan's handling of a judicial review of a decision by Mr Hain. Mr Hain had commented in his autobiography that he thought the Judge in question was “off his rocker”. Although Mr Hain did not face a charge of public defamation, but rather the archaic charge of "scandalising a judge” and thereby committing contempt.  Perhaps Mr Hain may have sought to rely on the principles set down by this case, that he was in a special position when remarking about the administration of justice. 

http://www.theguardian.com/commentisfree/2012/apr/22/peter-hain-prosecution-silliness-in-court

For more information please contact Olivia O'Kane.

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