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Lawyers Can Criticise Judges

Human Rights Court upholds lawyer's right to criticise judges

A French lawyer, convicted of public defamation of a civil servant for his criticisms of two investigation judges, has won a case at the European Court of Human Rights based on interference with his right to freedom of expression.

In a unanimous decision, the Grand Chamber stated that while lawyers had a special role in the administration of justice which entailed a number of duties particularly with regard to their conduct, they were entitled to freedom of expression and "in particular, to comment in public on the administration of justice, provided that their criticism does not overstep certain bounds" these being reflected in the 10 basic principles enumerated by the CCBE for European lawyers.

The case was brought by Olivier Morice, who acted for the family of Bernard Borrel, a French judge killed in unexplained circumstances while on a secondment to Djibouti. The initial finding of suicide was called in question by a witness who later came forward. M Morice's criticisms, in a newspaper interview, related to the actings of the investigating judges in relation to this witness and otherwise, and to alleged connivance between the judges and the public prosecutor in Djibouti. The judges were later removed from the investigation, but M Morice was fined and ordered to pay damages.

The court concluded that the comments were not damaging and unfounded attacks, but were made "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. While those remarks could admittedly be regarded as harsh, they nevertheless constituted value judgments with a sufficient 'factual basis'".

Disagreeing with the French Government's argument, the court ruled that the comments were not capable of undermining the proper conduct of the judicial proceedings, in view of the fact that the case had been withdrawn from the two judges concerned. The conviction was disproportionate interference with M Morice's right to freedom of expression under article 10.

"The question of freedom of expression is related to the independence of the legal profession, which is crucial for the effective functioning of the fair administration of justice", the court said. "It is only in exceptional cases that restriction even by way of a lenient criminal penalty of defence counsel's freedom of expression can be accepted as necessary in a democratic society."

There had also been a violation of the article 6 right to an independent and impartial tribunal, where one judge of the Cour de Cassation had some years before supported one of the judges concerned in this case, when disciplinary proceedngs were brought against her.

M Morice was awarded 15,000 in non-pecuniary damages, along with certain costs.

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