Case Summary and Outcome

The Grand Chamber of the European Court of Human Rights unanimously held that the judgment against Mr. Morice for defamation was a disproportionate interference with his right to freedom of expression, and  therefore  not “necessary in a democratic society,” resulting in an Article 10 violation. This case was the final judgment in a case referred to the Grand Chamber by the Fith Section of the ECtHR which on 25 May 2014 found that the conviction of a lawyer, Mr. Morice, for public defamation of a judge was not in breach of Article 10 of the ECHR. This case concerned how lawyers could use their right to freedom of expression to comment on the actions of judicial officials and the administration of justice. Mr. Morice was convicted for public defamation of a judge based on an article in the daily newspaper Le Monde, stating that Mr. Morice, in his capacity as a lawyer, had “vigorously” challenged a judge before the Minister of Justice, accusing her of “conduct that was completely contrary to the principles of impartiality and loyalty”. In it’s final judgment the Grand Chamber taking note of the possible chilling effect of the criminal conviction of Mr. Morice and also considering the important role of lawyers in criticizing the dysfunctions within the administration of justice and informing the public found that Article 10 had been violated.

Facts

The Applicant in this case was a french lawyer, Mr. Olivier Morice. In 1995, Mr Bernard Borrel, a judge and France’s technical advisor to Djiboutian Ministry of Justice was found dead, the death was ruled a suicide and his widow, also a judge, disputed this finding and hired Mr. Morice to represent her and her minor children in a civil suit against persons or persons unknown for premeditated murder. The case was eventually transferred to the Toulouse Tribunal de Grand Instance (TGI) and in 1997 two judges began a joint investigation. Mr Morice asked that a site visit be conducted in the presence of the civil parties. The investigating judges having already conducted two site visits with experts including the director of the Paris institute of forensic medicine, did not grant this request. Morice then appealed this decision to the indictments division and also asked that the division take over the investigation. The Division agreed to do so and appointed a new investigating judge, the investigation still continues to this day.

Before the Grand Chamber Mr. Morice argued that his criminal conviction had entailed a violation of his right to freedom of expression as provided for by Article 10 of the Convention. He emphasised that the court’s own case law supported strong protection to the freedom of expression of lawyers and that the right of lawyers to make press statements as part of their clients’ defence was expressly acknowledged. He also pointed out that in principle, there was, at European level, significant tolerance of lawyers’ criticism of judges, even when made in a public and media setting. It was argued that lawyers should be afforded a functional protection that was not limited to the courtroom and was as broad as possible, in order to contribute effectively to defending their clients and informing the public. He further submitted that the fifth Chamber had wrongly placed on the same footing the freedom of expression of lawyers and the public’s right to be informed about matters of general interest, and the dignity of the legal profession and the good reputation of judges. He argued that the former were rights guaranteed by Article 10 of the Convention, whilst the latter were merely interests that might warrant a restriction, which had to remain exceptional.

Decision Overview

A unanimous court held that the judgment against Mr. Morice for complicity in defamation was a disproportionate interference with his right to freedom of expression, and  therefore  not “necessary in a democratic society” within the meaning of Article 10 of the Convention. Therefore there had been an Article 10 violation.

The court began by pointing out that, in general, a high level of protection of freedom of expression will be applied and as there is little scope under Article 10 of the Convention for restrictions on political speech or on debate on matters of public interest. Hostility or the potential seriousness of certain remarks will not negate the right to a high level of protection, when a matter is of public interest. The Court reiterated the difference between statements of  fact and value judgments pointing out that the requirement to prove the truth of a value judgment is impossible to fulfill and infringes freedom of opinion. To distinguish between a factual allegation and a value judgment, the court says, it is necessary to take account of the circumstances of the case and the general tone of the remarks whilst bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact. The court also states that the nature and severity of the sanctions imposed are also factors to be taken into account when assessing the proportionality of the interference to examine if the interference with freedom of expression may have a chilling effect on the exercise of that freedom. Even moderate sanctions like fines, the court points out, will not suffice to negate the risk of a chilling effect on the exercise of freedom of expression, an effect which is even more unacceptable in the context of a lawyer who is required to ensure the effective defence of his clients.