On April 23, 2015, the Grand Chamber of the European Convention on Human Rights held, in addition to one other finding, that the conviction for defamation of a lawyer revealing serious shortcomings in the justice system was a disproportionate interference with his right to freedom of expression. Morice v. France, (Application no. 29369/10).
On 19 October 1995 Judge Borrel was found dead. The gendarmerie concluded it was a suicide. Two years later, the widow, disputing the finding of suicide, filed a complaint as a civil party against persons unknown for premeditated murder. She appointed Mr. Morice, to represent her in the proceedings. The case became very complicated and there was evidence that the French secret services were involved. Two investigating judges were accused of misconduct and removed from the judicial investigation. The case had a wide media coverage.
In 2000 Mr. Morice released an interview to Le Monde criticizing the two judges, accusing them of “conduct which is completely at odds with the principles of impartiality and fairness” The lawyer went on accusing prosecutors and judges to be connivent.
The two judges filed a criminal complaint as civil parties against the director of Le Monde, the journalist and the lawyer for public defamation of a civil servant. The court sentenced the lawyer and the other defendants to a fine and ordered them to pay the judges’ legal fees and the cost of the proceeding. All the appellate courts that were invested of the matter found basically that “the comments were defamatory and that the veracity of the defamatory allegations had not been established”.
At last, on 7 May 2010, Mr. Morice lodge an application with European Court of Human Rights against the French Republic alleging a “breach of the principle of impartiality under Article 6 § 1 of the Convention in proceedings before the Court of Cassation and that his freedom of expression, as guaranteed by Article 10, had been breached on account of his conviction.”
With specific reference to the violation of Article 10 (freedom of expression) by lawyers, the Court found that the lawyer’s statements to the press did not constitute “gravely damaging and essentially unfounded attacks” against the judiciary power because he criticized the acts of two judges “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.”
The Court found that the defamation judgment previously released against the lawyer are to “be regarded as a disproportionate interference with his right to freedom of expression, and was not therefore “necessary in a democratic society” within the meaning of Article 10 of the Convention”. The Grand Chamber explained that freedom of expression is applicable also to lawyers: “Lawyers are thus entitled, in particular, to comment in public on the administration of justice, provided that their criticism does not overstep certain bounds (…). The defense of a client may be pursued by means of an appearance on the television news or a statement in the press, and through such channels the lawyer may inform the public about shortcomings that are likely to undermine pre-trial proceedings.” Nevertheless” noted the Court “when making public statements, a lawyer is not exempted from his duty of prudence in relation to the secrecy of a pending judicial investigation.”
The Court took the view that the applicant’s remarks fell within the context of a debate on a matter of public interest, thus calling for a high level of protection of the freedom of expression, “with a particularly narrow margin of appreciation accordingly being afforded to the authorities”.
For more information, Francesca Giannoni-Crystal.