42
MORICE v. FRANCE JUDGMENT
whether it was proportionate to the legitimate aim pursued and whether the
grounds given by the domestic courts were relevant and sufficient.
145. The Court notes that, in convicting the applicant, the Court of
Appeal took the view that to say that an investigating judge had shown
“conduct which [was] completely at odds with the principles of impartiality
and fairness” was in itself a particularly defamatory accusation (see
paragraph 47 above). That court added that the applicant’s comments
concerning the delay in forwarding the video-cassette and his reference to
the handwritten card from the public prosecutor of Djibouti to Judge M., in
respect of which the applicant had used the term “connivance”, merely
confirmed the defamatory nature of the accusation (ibid.), the “veracity” of
the allegations not having been established (see paragraph 48 above) and the
applicant’s defence of good faith being rejected (see paragraph 49 above).
(a) The applicant’s status as a lawyer
146. The Court observes, firstly, that the remarks in question stemmed
both from statements made at the request of the journalist who wrote the
article and from the letter to the Minister of Justice. The remarks were made
by the applicant in his capacity as a lawyer acting for the civil party and
concerned matters relating to the proceedings in the Borrel case.
147. In this connection the Court notes at the outset that the applicant
has invited it to clarify its case-law concerning the exercise of freedom of
expression by a lawyer, particularly outside the courtroom, and to afford the
greatest possible protection to comments by lawyers (see paragraphs 96, 97
and 102 above). The Government, for their part, while taking the view that
their status as officers of the court fundamentally distinguished lawyers
from journalists (see paragraph 106 above), identified various situations in
which freedom of expression would be “particularly broad”, “wide”, or, on
the contrary, subject to “certain limits” (see paragraph 107 above).
148. The Court would refer the parties to the principles set out in its
case-law, particularly with regard to the status and freedom of expression of
lawyers (see paragraphs 132-39 above), with emphasis on the need to
distinguish between remarks made by lawyers inside and outside the
courtroom. Moreover, in view of the specific status of lawyers and their
position in the administration of justice (see paragraph 132 above), the
Court takes the view, contrary to the argument of the CCBE (see
paragraph 116 above), that lawyers cannot be equated with journalists. Their
respective positions and roles in judicial proceedings are intrinsically
different. Journalists have the task of imparting, in conformity with their
duties and responsibilities, information and ideas on all matters of public
interest, including those relating to the administration of justice. Lawyers,
for their part, are protagonists in the justice system, directly involved in its
functioning and in the defence of a party. They cannot therefore be equated
with an external witness whose task it is to inform the public.