Lawyer’s conviction for defaming judges was a violation of freedom of expression

European Court of Human Rights has found that a lawyer convicted for instigating the public defamation of two judges was denied a fair hearing and that his conviction violated his right to freedom of expression. 

Facts

The case concerned the conviction of a lawyer for complicity in the defamation of two judges responsible for investigating the death of French judge Bernard Borrel. The applicant, Mr Oliver Morice, was acting for Ms Elizabeth Borrel, the widow of Bernard Borrel. In 1997, Ms Borrel challenged a finding of the Djibouti gendarmerie that Bernard Borrel had committed suicide, and filed a compliant as a civil party for premeditated murder. The judicial investigation was assigned to Judge M and Judge LL, although was subsequently transferred to Judge P.

On 6 September 2000, the applicant wrote a letter to the French Ministry of Justice complaining about shortcomings in the judicial investigation. In particular, he referred to Judge M and Judge LL’s failure to transmit certain evidence to Judge P. The next day, Le Monde newspaper published an article entitled “Borrel Case: Judge M’s impartiality called into question”, which included extracts of the letter sent by the applicant to Ministry of Justice. The article also stated that Ms Borrel’s lawyers had accused Judge M of conduct that was “completely at odds with the principles of impartiality and fairness”. Following complaints by the investigating judges, the applicant was convicted of instigating public defamation of Judge M and Judge LL.

Relying on article 6 of the Convention of Human Rights and Fundamental Freedoms, the applicant argued his case had not been examined fairly by an impartial tribunal in the Court of Cassation, as one of the judges determining the matter, Judge JM, had previously expressed support for Judge M (in separate disciplinary proceedings made against her).  Additionally, he argued that his criminal conviction constituted a violation of his freedom of expression under article 10 of the Convention.

Decision

The Court held:

  • unanimously, that the applicant’s case was not heard by an impartial tribunal in the Court of Cassation, and therefore constituted a violation article 6 of the Convention; and
  • by a majority,  that the applicant’s conviction for defamation constituted a violation of his right to freedom of expression under article 10 of the Convention.

Article 6 – Right to a fair hearing

At the outset, the Court acknowledged the applicant did not argue that Judge JM displayed any personal bias against him. Rather, he contended that irrespective of any personal conduct, the very presence of Judge JM on the bench created a situation which justified his fears of lack of impartiality.  For this reason, the Court considered it necessary to apply an objective test to the question of impartiality.

In the Court’s view, the previous remarks of Judge JM in support of fellow judge, Judge M, - the precise person responsible for commencing criminal proceedings against the appellant - were capable of raising objective doubts as to the impartiality of the “tribunal” hearing his case. The Court was not persuaded by the Government’s argument that the impartiality of an enlarged bench comprising ten judges was unlikely to have been affected by a single judge. Nor was it moved by the fact that Judge JM’s remarks had been made some years earlier.

Article 10 – Right to freedom of expression

As to article 10 of the Convention, the Court commenced by acknowledging it was not in dispute between the parties that the appellant’s conviction constituted an interference with his right to freedom of expression. The relevant question was therefore whether the interference was “necessary in a democratic society”, which essentially required the court to assess whether the interference was proportionate to the legitimate aim being pursued.

The Court took the view that the applicant’s impugned remarks published in Le Monde, which concerned the functioning (or rather, the shortcomings) of the judiciary and the handling of the Borrel case, fell within the context of a debate on matters of public interest. That being so, the Court emphasised the case called for a higher level of protection of freedom of expression, and thus the authorities had a narrower margin of appreciation in restricting such freedom.

Turning to the remarks themselves, the Court made it clear that a distinction is to be drawn between statements of fact (which can be proved) and value judgements (which are not susceptible to proof, but rather must have a “sufficient factual basis”). In the present case, the Court considered that the general tone of the remarks and context of in which they were made indicated that the applicant’s impugned remarks were “value judgements” as opposed to pure statements of fact.

Importantly, the Court held the applicant’s remarks had “sufficient factual basis”, principally because Judge M and Judge LL had failed to forward in the investigation file sent to Judge P an important piece of evidence. Accordingly, the applicant’s remarks could not be regarded as misleading, or as a gratuitous attack on the moral and professional integrity of two investigating judges.

Thus, in light of all the circumstances of the case, the Court concluded the judgement against the appellant for complicity in defamation amounted to a disproportionate interference with his right to freedom of expression.

Comment

The decision confirms that in situations concerning matters of public interest, there is limited scope for restrictions on freedom of expression as enshrined in the European Convention. Lawyers are able to draw the public’s attention to potential shortcomings in the judicial system, provided any value judgements they make have a “sufficient factual basis”. Indeed, the Court noted the judiciary may even benefit from “constructive criticism”.  There is no equivalent broad constitutional or statutory protection of freedom of expression in Australia.  Without a federal charter of human rights, advocates for free speech must instead rely on the narrower implied freedom of political communication in the Australian Constitution.

The case can be found at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-154265

Madeleine McIntosh is a Law Graduate at King & Wood Mallesons.