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MORICE v. FRANCE JUDGMENT
A. The Chamber judgment
94. The Chamber found that there had been no violation of Article 10 of
the Convention. It noted that the applicant had not confined himself to
factual statements concerning the ongoing proceedings, but had
accompanied them with value judgments which cast doubt on the
impartiality and fairness of a judge.
95. The Chamber, after noting that the investigating judge in question
was no longer handling the case, took the view, firstly, that the applicant
should have waited for the outcome of his request addressed the previous
day to the Minister of Justice seeking an investigation by the General
Inspectorate of Judicial Services into the alleged numerous shortcomings in
the judicial investigation and, secondly, that the applicant had already
successfully used a legal remedy to seek to cure any defects in the
proceedings and the judge concerned by his remarks had been taken off the
case. In view of the foregoing and the use of terms that the Chamber found
particularly harsh, it took the view that the applicant had overstepped the
limits that lawyers had to observe in publicly criticising the justice system.
It added that its conclusion was reinforced by the seriousness of the
accusations made in the article, and that, also having regard to the
chronology of the events, it could be inferred that the applicant’s remarks
were driven by a degree of personal animosity towards the judge. As to the
“proportionality” of the sanction, the Chamber found that a fine of
EUR 4,000, together with an award of EUR 7,500 in damages to each of the
judges, did not appear excessive.
B. The parties’ submissions before the Grand Chamber
1. The applicant
96. The applicant argued that the Court’s case-law guaranteed strong
protection to the freedom of expression of lawyers, who played a key role in
the administration of justice and the upholding of the rule of law, with any
restriction having to remain exceptional. Such protection could be explained
by two reasons: firstly, no special circumstances could justify affording a
wide margin of appreciation to States, bearing in mind that European and
international texts, on the contrary, protected lawyers in the activity of
defending their clients; secondly, their freedom of expression was linked to
their clients’ right to a fair trial under Article 6 of the Convention. He
further observed that the right of lawyers to make press statements as part of
their clients’ defence was expressly acknowledged and that, in principle,
there was, at European level, significant tolerance of lawyers’ criticism of
judges, even when made in a public and media setting. He submitted,
however, that the Chamber judgment highlighted some major uncertainties
and vagaries in the case-law that affected the exercise of such freedom,