issued by the Registrar of the Court

ECHR 214 (2013)

11.07.2013

The conviction for defamation of the lawyer acting for Judge

Borrel’s widow was justified, but doubts could be raised as to

the Court of Cassation’s impartiality due to its composition

In today’s Chamber judgment in the case of Morice v. France (application

no. 29369/10), which is not final¹, the European Court of Human Rights held:

unanimously, that there had been a violation of Article 6 § 1 (right to a fair trial) of

the European Convention on Human Rights;

by a majority, that there had been no violation of Article 10 (freedom of

expression) of the Convention.

The case concerned the conviction of a lawyer for public defamation of the judges

responsible for investigating the death of Judge Bernard Borrel in Djibouti, following the

publication of an article in the daily newspaper Le Monde.

The case raised two issues: firstly, a member of the Court of Cassation which ruled on

Mr Morice’s appeal on points of law had previously expressed his support for a judge who

was a party to the proceedings against him. The Court concluded that serious doubts

could be raised as to the Court of Cassation’s impartiality and that Mr Morice’s fears

could be held to be objectively justified.

The Court also considered that the domestic courts could have been satisfied that the

comments made by Mr Morice in Le Monde were serious and insulting to the judge in

question, that they were capable of unnecessarily undermining public confidence in the

judicial system and, lastly, that there were sufficient grounds to convict Mr Morice of

public defamation.

Principal facts

The applicant, Olivier Morice, is a French national who was born in 1960 and lives in

Paris (France). He is the lawyer of Elisabeth Borrel, the widow of the French judge

Bernard Borrel, whose dead body was found, partly burnt, on 19 October 1995, 90

kilometres from the city of Djibouti.

The investigation conducted by the gendarmerie concluded that Mr Borrel had committed

suicide by self-immolation. In November 1995 a judicial investigation was opened in

Toulouse into the causes of the judge’s death. In February 1997 Ms Borrel disputed the

above finding and filed a complaint as a civil party for premeditated murder. A judicial

investigation was opened and assigned to judge M. and judge L.L.

On 21 June 2000, the case was withdrawn from the two investigating judges by the Paris

Court of Appeal on account of their refusal - considered unjustified - to order a new visit

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month

period following its delivery, any party may request that the case be referred to the Grand Chamber of the

Court. If such a request is made, a panel of five judges considers whether the case deserves further

examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral

request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for

supervision of its execution. Further information about the execution process can be found here:

www.coe.int/t/dghl/monitoring/execution

to Djibouti accompanied by the civil parties. The case was transferred to another

investigating judge.

On 6 September 2000, Mr Morice and one of his colleagues sent a letter to the Minister

of Justice in the context of the investigation into Judge Borrel’s death. They stated that

they were again complaining to the Minister of Justice about the “conduct of judges M.

and L.L., [which is] entirely contrary to the principles of impartiality and loyalty”. They

asked that for an investigation to be carried out by the General Inspectorate of Judicial

Services into “the numerous problems which had been brought to light in the context of

the judicial investigation”. They added that, after the case had been withdrawn from

investigating judges M. and L.L., all of the evidence had been transmitted by them to the

new judge, with the exception of a video recording made during an on-site visit,

unaccompanied by the civil parties, which they suspected judges M. and L.L. of

withholding. They had been obliged to protest to the new investigating judge and alleged

that the latter, who obtained the requested item on the same day, had discovered on

opening the cassette cover a stamped envelope addressed to judge M. which revealed –

according to Mr Morice and his colleague – “a surprising and regrettable close complicity

between the French judges and the Djibouti Public Prosecutor”.

On 7 September 2000, Le Monde published an article entitled “Borrel Case: Judge M.’s

impartiality called into question”. The article stated that Ms Borrel’s lawyers had

“vigorously” challenged judge M. before the Minister of Justice, accusing her of “conduct

that was completely contrary to the principles of impartiality and loyalty” and stating

that she seemed “to have omitted to number and transmit an item from the proceedings

to her successor”. The article further stated that a letter had been discovered by the new

investigative judge to whom the case had been transferred, which showed, according to

the lawyers, “the scope of the connivance which existed between the Djibouti prosecutor

and the French judges”. The article concluded that the lawyers, who were angry and

shocked, had called for an investigation to be carried out by the General Inspectorate of

Judicial Services, which answered to the Minister of Justice.

On 12 and 15 October 2001 the two contested judges lodged a complaint for public

defamation of a civil servant against the editor-in-chief of Le Monde, the journalist who

had written the article and the applicant.

On 4 June 2002, following a complaint of the two contested judges, the court found Mr

Morice to be an accessory of public defamation of judges M. and L.L. and imposed a fine

of 4,000 euros (EUR). It also ordered him to pay, jointly and severally with the journalist

and the editor-in-chief of Le Monde, EUR 7,500 to each of the judges. The court further

ordered that an announcement be published in the newspaper. The three parties to the

proceedings appealed against that judgment.

The Versailles Court of Appeal held that judge L.L.’s action was out of time and upheld

the convictions of the three defendants in respect of judge M. The appeal court reduced

the amount of the fines in question. The applicant and judge L.L. lodged an appeal on

points of law before the Court of Cassation, which found inconsistencies in the reasoning,

held that judge L.L.’s action was time-barred and remitted the case to the Rouen Court

of Appeal.

By a judgment of 16 July 2008, the Rouen Court of Appeal upheld the decision of the

first-instance court, found that Mr Morice had been an accessory to the offence of public

defamation of a civil servant and reinstated the sentence to which he had been

sentenced at first instance. Examining an appeal on points of law, the Court of Cassation

found that decision to be justified.

Complaints, procedure and composition of the Court

Relying on Article 6 § 1 (right to a fair hearing), Mr Morice alleged that his case had not

been determined fairly and impartially by the Court of Cassation. He stated that judge

J.M., who was part of the bench which ruled on his appeal on points of law, had

previously and publicly expressed support for judge M. at the general assembly of judges

sitting at the Paris tribunal de grande instance on 4 July 2000. Relying on Article 10

(freedom of expression), he alleged that there had been a breach of his right to freedom

of expression.

The application was lodged with the European Court of Human Rights on 7 May 2010.

Judgment was given by a Chamber of seven judges, composed as follows:

Mark Villiger (Liechtenstein), President,

Angelika Nußberger (Germany),

Boštjan M. Zupančič (Slovenia),

Ganna Yudkivska (Ukraine),

André Potocki (France),

Paul Lemmens (Belgium),

Aleš Pejchal (the Czech Republic),

and also Claudia Westerdiek, Section Registrar.

Decision of the Court

Article 6 § 1

The Court noted that Mr Morice contested the impartiality of J.M., a member of the Court

of Cassation, who, at the general assembly of judges sitting at the Paris tribunal de

grande instance on 4 July 2000, had publicly expressed his support for and confidence in

judge M., who was being criticised at the time for the manner in which she was

conducting the investigation into a case concerning the Church of Scientology. The Court

noted that Mr Morice was at that time acting for certain civil parties in that case and had

contacted the Minister of Justice with regard to difficulties encountered with judge M. in

that investigation.

The Court noted that J.M. had been part of the bench in the Criminal Division of the

Court of Cassation which had ruled on the appeals on points of law by judge M. and Mr

Morice in the proceedings between them, and which had dismissed those appeals, thus

upholding Mr Morice’s conviction. Although judge J.M. had expressed his opinion several

years previously, it remained the case that judge M. was already investigating the Borrel

case when judge J.M. made his statement. In addition, the Rouen Court of Appeal had

emphasised in its judgment of 16 July 2008 that, at Mr Morice’s request, the Church of

Scientology case (in which judge M. was suspected of removing documents) had been

placed before the investigating chamber at the Paris Court of Appeal two days before the

impugned article was published in Le Monde. Mr Morice and judge M. were thus opposed

both in the case in which judge M. had received support from judge J.M. – concerning

the Church of Scientology – and in the case in which judge J.M. had sat as a judge at the

Court of Cassation – the Borrel case.

Serious doubts could be raised as to the impartiality of the Court of Cassation and Mr

Morice’s fears in this respect could be held to be objectively justified.

There had been a violation of Article 6 § 1 of the Convention.

Article 10

In the article in the newspaper Le Monde, dated 7 September 2000, the lawyers acting

for Mrs Borrel – including Mr Morice – accused judge M. of “conduct [which is]

completely contrary to the principles of impartiality and loyalty” and of having, with her

colleague, omitted to “number and transmit an item from the proceedings to her

successor”. The article referred to the note from the Djibouti prosecutor, addressed to

judge M., which had infuriated the lawyers acting for Mrs Borrell, in that this document

purportedly demonstrated “the extent of the connivance” which allegedly existed

between the Djibouti prosecutor and the French judges.

The Court noted that Mr Morice had not confined himself in the article to factual

statements about the failure to hand over the video cassette and the presence of a letter

from the Djibouti prosecutor inside the cassette cover. Mr Morice had accompanied those

factual observations with value judgments which cast doubt on the impartiality and

loyalty of judge M. and alleged the existence of connivance between the investigating

judges and the Djibouti prosecutor.

Furthermore, Mr Morice and one of his colleagues had, on the previous day, sent a letter

to the Minister of Justice, containing the same claims and calling for an investigation by

the General Inspectorate of Judicial Services into the “numerous problems” brought to

light in the context of the judicial investigation into Judge Borrel’s death. Yet the

investigation file had already been removed from judge M. by a decision of the

investigating chamber at the Paris Court of Appeal dated 21 June 2000. Judge M. was

thus no longer in charge of the case when Mr Morice made his statements about her

working methods in the case.

The Court noted that Mr Morice had publicly attacked the investigating judge and the

functioning of the judicial system just one day after contacting the Minister of Justice,

without awaiting a response to his request.

Even had the aim been to alert the public with regard to possible problems in the

functioning of the justice system, which the Court acknowledged to be a matter of public

interest, Mr Morice had done so in particularly virulent terms.

The Court reiterated that the primary task of lawyers was to defend their clients and that

they had available to them judicial remedies seek redress for possible shortcomings in

the justice system, and that Mr Morice had already used those remedies.

The Court concluded that, in expressing himself as he had, Mr Morice had behaved in a

manner which exceeded the limits that lawyers had to respect in publicly criticising the

justice system. The Court considered that the domestic courts could have been satisfied

that the comments in question were serious and insulting to judge M., that they were

capable of unnecessarily undermining public confidence in the judicial system – given

that the investigation in the Borrel case had been assigned to another judge several

months previously – and, lastly, that there were sufficient grounds to find Mr Morice

guilty of defamation.

Having regard to the margin of appreciation left to Contracting States by Article 10 of

the Convention, the Court held that authorities had not overstepped their margin of

appreciation in penalising the applicant for defamation, and concluded that there had

been no violation of Article 10 of the Convention.

Just satisfaction (Article 41)

The Court held that France was to pay Mr Morice 6,000 euros (EUR) in respect of non-

pecuniary damage and EUR 6,000 in respect of costs and expenses.