Violation of the right of freedom of expression of a French lawyer (Morice v. France)

The European Court of Human Rights recently has decided that the conviction for defamation of a lawyer, Mr. Morice, when acting for the widow of a French judge was a disproportionate interference with his right to freedom of expression. The Court held that there had been a violation of the right to a fair trial and a violation of freedom of expression (according to the European Convention on Human Rights).

Mr. Morice was acting for the widow of the French judge Bernard Borrel, whose dead body was found 80 kilometres from the city of Djibouti in October 1995. On behalf of his client he represented her interests during the French judicial investigation.

Regarding the violation of freedom of expression (article 10 of the European Convention on Human Rights) the press release says:

It was not in dispute that Mr Morice’s conviction had constituted an interference with the exercise of his right to freedom of expression, as prescribed by the Freedom of the Press Act of 29 July 1881, and with the aim of protecting the reputation or rights of others. Applicant’s status as lawyer and debate on a matter of public interest Mr Morice had relied on the right of lawyers to defend their clients through the press. The Court reiterated its case-law to the effect that a distinction had to be drawn depending on whether the lawyer was speaking inside or outside the courtroom. Remarks made in the courtroom remained there and thus warranted a high degree of tolerance to criticism. In other contexts lawyers had to avoid remarks amounting to a gratuitous personal attack without a direct connection to the facts of the case. That being said, in the present case the Court failed to see how Mr Morice’s statements could have directly contributed to his task of defending his client, Mrs Borrel, since the judicial investigation had by that time been entrusted to another judge who was not criticised. Mr Morice had also relied on his right to contribute to a debate on a matter of public interest. The Court took the view that his remarks, which concerned the functioning of the judiciary and the handling of the Borrel case [2], fell within the context of a debate on such a matter, as the public had a legitimate interest in being informed about criminal proceedings. In that context the authorities had a particularly narrow margin of appreciation when it came to restricting freedom of expression. The Court nevertheless emphasised that lawyers could not be equated with journalists. While lawyers had a special position in the administration of justice which made them first-hand witnesses of any shortcomings, they could not be equated with journalists, not being external witnesses with the task of informing the public, but being directly involved in the defence of a party.

Factual basis of impugned remarks and context of the case
The Court took the view that Mr Morice’s remarks were value judgments and as such were not susceptible of proof, but nevertheless had to have a sufficient “factual basis”. The Court found in the present case that such a basis existed. It had first been established that an important item of evidence, namely the video recording made in Djibouti, had not been forwarded with the case file to the new investigating judge, who had produced a report to register this fact. In addition, after the cassette had been given to him by Judge M., at his request, Judge P. had made a certain number of factual observations, concerning in particular the absence of exhibits under seal and the presence of the handwritten card showing a certain friendliness on the part of the public prosecutor of Djibouti towards Judge M. and accusing the civil parties’ lawyers of “orchestrating their manipulation”. The Court emphasised in this connection that, not only had the Djibouti authorities supported the theory of suicide from the outset, but also a number of representatives of that State had been personally implicated in the subsequent investigation. Lastly, Mr Morice had acted in his capacity as lawyer in two high-profile cases in which Judge M. was an investigating judge and in both of them shortcomings had been identified by the appellate courts, leading to the withdrawal of the cases from Judge M. at Mr Morice’s request. Mr Morice had also secured a ruling that the French State was liable for the malfunctioning of the justice system in the Scientology case. As to Mr Morice’s remarks, they had a close connection with the facts of the case and had been neither misleading nor gratuitous.
As regards the background to the case, which always had to be taken into account in Article 10 cases, it could be explained not only by the conduct of the investigating judges and by Mr Morice’s relations with one of them, but also by the very specific history of the case, its inter-State dimension and the substantial media coverage. Although this specific context was of considerable importance, the Court of Appeal had attributed an extensive scope to some of the language used by Mr Morice. The Court took the view that Mr Morice’s remarks could not be reduced to the mere expression of personal animosity on his part towards Judge M. or an antagonistic relationship between the two individuals, as they fell within a broader context, also involving another lawyer and another judge (L.L.). In addition, while Mr Morice’s remarks reflected some hostility, they concerned alleged shortcomings in a judicial investigation – a matter to which a lawyer should be able to draw the public’s attention.
Maintaining the authority of the judiciary and use of available remedies The Government relied on the fact that judges could not reply, as they were bound by a duty of discretion. The Court took the view that, while it might prove necessary to protect them for that reason from gravely damaging and unfounded attacks, this could not have the effect of prohibiting individuals from expressing their views, through value judgments with a sufficient factual basis, on matters of public interest related to the functioning of the justice system. In the present case, the limits of acceptable criticism vis-à-vis members of the judiciary, part of a fundamental institution of the State, were wider than in the case of ordinary citizens and the impugned comments could therefore be directed against the judges. The Court nevertheless underlined the need to maintain the authority of the judiciary and to ensure relations based on mutual consideration and respect between the different protagonists of the justice system.
The Government further relied on the argument that Mr Morice should have used the available legal remedies and not the press in order to remedy the problems he had encountered. The Court noted that the referral of the matter to the Indictments Division of the Paris Court of Appeal showed that Mr Morice’s initial intention had been to resolve the matter using the available remedies, but at that stage the Indictments Division was no longer in a position to examine such complaints, because it had already withdrawn the case from Judges M. and L.L. Moreover, the request for an investigation made to the Minister of Justice was not a judicial remedy but a mere request for an administrative investigation subject to the discretionary decision of the Minister. The Court further noted that no disciplinary proceedings had been brought against Mr Morice.

[2] As in the cases of Floquet and Esménard v. France (no. 29064/08, 10 January 2002) and July and Sarl Libération v. France (no. 20893/03, 14 February 2008).

More information: press Release of European Court of Human Rights

The case illustrates the importance of freedom of speech. The theme of the European Lawyer’s Day 2015, taking place on 10 December, will be freedom of speech.

Over Ellen Timmer, advocaat ondernemingsrecht @Pellicaan

Verbonden aan Pellicaan Advocaten, http://www.pellicaan.nl/, kantoor Capelle aan den IJssel (Rotterdam), telefoon 088-6272287, fax 088-6272280, e-mail ellen.timmer@pellicaan.nl ||| Weblogs: algemeen: https://ellentimmer.wordpress.com/ ||| modernisering ondernemingsrecht: http://flexbv.wordpress.com/
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