Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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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.
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.
In the meantime, the Minister of Justice referred to the National Legal Service Commission (Conseil supérieur de la magistrature – the “CSM”), in its capacity as disciplinary board for judges, certain actions of one of the investigating judges in the Borrell case. The actions complained of were based on a different case known as the ‘scientology’ case that the Judge allegedly mismanaged. No actual disciplinary action was taken against the judge even though she was reproached. The new investigating judge made a request to the former judge who had been brought up on disciplinary charges for a video relevant to the Borell case, in response he received a letter in which the former investigating judge stated that Morice and his client Mrs. Borrel were carrying on a manipulation. Portions of this letter were later published in an article in the newspaper Le Monde which prompted to two former investigating judges to file a criminal complaint of defamation of a pubic official against the publication director of Le Monde, the journalist who had written the article and Mr Morice based the following comments in the article:
“The judge [M.] is accused by Olivier Morice and Laurent de Caunes of ‘conduct which is completely at odds with the principles of impartiality and fairness’, apparently having failed to register an item for the case file and to transmit it to her successor.”
“ ‘Judges [M.] and [L.L.] had been sitting on the cassette’, protests Olivier Morice, ‘and had forgotten to place it under seal, for over a month after the case was withdrawn from them’.”
“To make matters worse, in the envelope Judge [P.] found a handwritten and rather friendly note.”
“Mrs Borrel’s lawyers are obviously furious. ‘This letter shows the extent of the connivance between the Djibouti public prosecutor and the French judges’, exclaims Mr Morice, ‘and one cannot but find it outrageous’.”
The Nanterre Criminal Court found the defendants guilty of defamation of a public officer and sentenced them to pay a fine. In 2003 the Versailles Court of Appeal upheld the convictions. In 2004 the Court of Cassation quashed the judgment in its entirety and remitted the case to the Rouen Court of Appeal, which four years later in 2008 also upheld the convictions. Thus Mr Morice and his two co-defendants lodged an appeal on points of law against that judgment in the ECtHR.
Mr Morice relied, as his first ground of appeal, on Article 10 of the Convention and the immunity provided for in section 41 of the Freedom of the Press Act, arguing that this provision sought to safeguard defence rights and protected lawyers in respect of any oral or written comments made in the context of any type of judicial proceedings, in particular of a disciplinary nature. With regards to Article 10 of the Convention, he asserted that: the comments in this case concerned a case that had been receiving media coverage for some time due to the suspicious circumstances in which a French judge in Djibouti was found dead and the questionable manner in which the judicial investigation was conducted. Morice argued that the Court of Appeal was not entitled to find that he had overstepped the bounds of his freedom of expression as it had not examined his good faith in the light of the comments that had been published in Le Monde, but in relation to the content of the letter to the Minister of Justice. Further, Mr Morice argued that unless all lawyers were to be banned from speaking about pending cases, no personal animosity could be inferred from the mere fact that he had had a disagreement with one of the judges in the context of a different set of proceedings. Finally, Mr Morice argued that opinions expressed about the functioning of a fundamental institution of the State, were not subject to a duty of prudence or limited only to theoretical and abstract criticism, but could be personal provided sufficient factual basis.
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.
From the Government’s point of view, lawyers, as officers of the court, were obliged to use legal proceedings to correct any alleged errors. The use of harsh criticism in the press, where legal means could be used was not justified and served to cast doubt on the probity of the justice system. It was argued by the Government that there had been many possible judicial remedies open to the applicant for the effective defence of his client and that he had in fact made use of them. Whilst his statements in the media could have been for the purpose of informing the public he should have spoken with moderation. In the governments view, the offending remarks were aimed, unequivocally, at the two judges in terms that attacked their honour. The government argued that Morice had not confined himself to a general criticism of the institutions but expressed biased views, instead of making factual statements about the functioning of the judicial system, he made value judgments that cast serious doubt on the investigating judges’ integrity.
There were third parties who intervened in this case before the Grand Chamber. The Council of Bars and Law Societies of Europe (CCBE), stated that the present case concerned freedom of expression outside the courtroom and any limits had to take account of the fact that in sensitive and high-profile cases, lawyers often had no choice but to speak publicly to voice concerns about issues regarding the proper conduct of proceedings. As such the CCDE was of the opinion that in such cases, lawyers should have the same freedom of speech and expression as journalists since restricting their freedom of expression, particularly when the proceedings were part of an inquisitorial system as in France, prevents them from ensuring public confidence in and contributing to the proper administration of justice. The Paris Bar Association, the National Bar Council and the Conference of Chairmen of French Bars jointly pointed out that until recently the issue of a lawyer’s freedom of speech had arisen only inside the courtroom where the lawyer was protected by immunity from legal proceedings. This immunity protected even remarks which could be considered offensive and defamatory or injurious. They felt that the issue in the present case was the lawyer’s freedom of expression to defend his client when he was addressing the press and how to determine when or if the comments became excessive if they affected an opponent, a judge or a fellow lawyer. They argued to the court that the the distinction between judicial and extrajudicial expression had become outdated and that the word of a lawyer was in fact based on a duty to inform, so like journalists, lawyers were also “watchdogs of democracy”. The third parties were all of the opinion that lawyers should be granted immunity where their comments, however excessive, were linked to the defence of their client’s interests and any restrictions on the right to express their views should be viewed exceptional.
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.
The court held that freedom of expression is also applicable to lawyers and encompasses both the substance of the ideas and information expressed and also form in which they are conveyed. Therefore, lawyers in particular are entitled to comment in public on the administration of justice as long as any criticism does not overstep certain bounds. These bounds are marked by the usual restrictions on the conduct of members of the Bars as reflected in the ten basic principles enumerated by the CCBE for European lawyers. It was held that only in exceptional cases would restriction – even a lenient criminal penalty – of defence counsel’s freedom of expression be accepted as necessary in a democratic society.
The court held however, that there is a distinction between a lawyer expressing himself in the courtroom and expressing himself elsewhere. With the former the principle of fairness falls in favour of a free and even forceful exchange of argument between the parties, lawyers have the duty to “defend their clients’ interests zealously”. The court reiterated that even outside the courtroom, the defence of a client may be pursued by means of an appearance on the television news or a statement in the press, and the lawyer may through such mediums inform the public about shortcomings that are likely to undermine proceedings. As such the Court held that a lawyer cannot be held responsible for everything published in the form of an “interview”, especially when the press has edited the statements and he or she has denied making certain remarks. It was held that a lawyer cannot be held liable for breaching the secrecy of a judicial investigation when he or she makes comments regarding information which is already known to the journalists that is going to reported, with or without the lawyers comments.
In this case, it was not in dispute that Mr Morice’s criminal conviction constituted an interference with the exercise of his right to freedom of expression, as guaranteed by Article 10 of the Convention. The issue to be examined was whether the interference was “necessary in a democratic society” and therefore justified. This required the Court to decide whether it was proportionate to a legitimate aim pursued and whether the grounds given by the domestic courts were relevant and sufficient. Contrary to the argument of the CCBE, it was held that lawyers cannot be equated with journalists as their roles in judicial proceedings are intrinsically different. Journalists impart information and ideas on all matters of public interest, including those relating to the administration of justice, whilst Lawyers are protagonists in the justice system and directly involved in its functioning. Therefore they cannot be equated.
The Court held that the Mr Morice’s remarks, fell within the context of a matter within the public interest and called for a high level of protection of freedom of expression, with a narrow margin of appreciation being afforded to the authorities. In addition, it was held that safeguards for the benefit of a defendant in defamation proceedings is among the factors taken into account in assessing the proportionality of an interference under Article 10. The Court stated the importance of the defendant being afforded a chance to prove that there was a sufficient factual basis for his allegations, something which was not done in this case. The Court took the view that in the circumstances of the case, the statements made were more value judgments than pure statements of fact as they reflected mainly an overall assessment of the conduct of the investigating judges in the course of the investigation. With regard to whether the “factual basis” for those value judgments was sufficient, the Court was of the opinion that this condition was fulfilled. The Court held that the expressions used by Mr Morice were sufficiently closely connected with the facts of the case and could not be regarded as misleading or as a gratuitous attack reiterating that freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive but also to those that offend, shock, disturb, or use a sarcastic or “caustic tone”. The comments aimed at a judge were therefore not incompatible with the provisions of Article 10.
The Court held Mr Morice’s statements could not be reduced to mere expressions of personal animosity towards the judges but rather formed part of a joint professional initiative by two lawyers to reveal serious shortcomings in the justice system, involving the two judges who had formerly been conducting the investigation in a case in which the two lawyers’ clients were parties. Further, while Mr Morice’s remarks had negative connotations, the key question in the statements concerned the functioning of a judicial investigation, which was a matter of public interest, leaving little room for restrictions on freedom of expression.
In conclusion, the Court held that the remarks made by Mr. Morice did not constitute gravely damaging and essentially unfounded attacks on the action of the courts, but were criticisms levelled at the Judges as part of a debate on a matter of public interest concerning the functioning of the justice system in the context of a case which had received wide media coverage from the outset. Although harsh, they still constituted value judgments with a sufficient “factual basis”. The Court reiterated that even when the sanction is the lightest possible, such as a guilty verdict without criminal sentence and an award of only a “token euro” in damages it was still a criminal sanction and does not justify interference with freedom of expression as even the modest nature of a fine does not suffice to negate the risk of a chilling effect on the exercise of that freedom. State institutions and authorities therefore, ought to show restraint in resorting to criminal proceedings. In this case, the sanction imposed was not the “lightest possible”, but was, on the contrary, of some significance, and his status as a lawyer was even relied upon to justify greater severity.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands the expression rights of lawyers outside of the courtroom with regards to bringing dysfunctions within the administration of justice to the public’s attention. Both critical and even harsh statements and value judgments about the judiciary, as long as they have a sufficient factual basis, are considered to be protected under Article 10 of the Convention. The court strongly emphasises importance of strongly protecting the freedom of expression of lawyers given their status and role in society as intermediaries between the public and the institutions involved in the administration of justice.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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