30
MORICE v. FRANCE JUDGMENT
judgment. In addition, the status of the victim, the place and circumstances
of his death, the diplomatic ramifications of the case, and the suspicions that
the current President of the Republic of Djibouti might have been involved
as the instigator, all showed that the case concerned a matter of general
interest requiring strong protection of freedom of expression. Moreover, on
19 June 2007 the Paris public prosecutor had issued a press release stating
that the theory of suicide had now been discounted in favour of a criminal
explanation. That statement had been made at the request of the
investigating judge under Article 11, paragraph 3, of the Code of Criminal
Procedure (permitting the public disclosure of details of the case to avoid
the dissemination of incomplete or inaccurate information, or to put an end
to a breach of public order). The case was so sensitive that the investigation
was now being handled by three investigating judges.
102. The applicant argued that the remarks regarding the shortcomings
in the justice system, in the context of the lawyer’s duty to defend a client,
could be deemed to merit even stronger protection. He denied going beyond
the limits of permissible criticism: his comments concerned only the
professional conduct of Judges M. and L.L., which was so crucial for the
civil parties; the remarks had a sufficient factual basis which lay in two
proven facts, firstly, the fact that the video-cassette in issue had not been
transmitted to the new investigating judge with the rest of the case file and,
secondly, the existence of the handwritten card from the prosecutor of
Djibouti to Judge M.; moreover, the proceedings brought against the
applicant and his colleague Mr L. de Caunes by Judges M. and L.L. for false
accusation, following the letter sent by the lawyers to the Minister of
Justice, had resulted in a discontinuance order, which had been upheld on
appeal.
103. As to the accusation that he had shown personal animosity, the
applicant rejected this, pointing out that only the content and subject of the
impugned remarks should be taken into account, not any intentions that
might be wrongly attributed to him. The applicant added that he was not
responsible for the reference to the disciplinary proceedings pending against
Judge M. and he noted that, in any event, Judge L.L. had also lodged a
criminal complaint, without there being any suggestion of personal
animosity towards that judge as well. The applicant also denied that any
insults or abuse could be detected in the remarks published in Le Monde.
Lastly, he submitted that he was merely defending his client’s position in
public, keeping her interests in mind without going beyond the scope of his
duty of defence. He was of the view, in that connection, that this could not
have influenced the ministerial or judicial authorities and he moreover
challenged the idea that legal action by a lawyer on behalf of his client
should preclude any comments in the press where the case aroused public
interest. He asserted that, on the contrary, a lawyer was entitled to decide
freely on his defence strategy for the benefit of his client.