MORICE v. FRANCE JUDGMENT – SEPARATE OPINIONS
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the outcome of the applicant’s case. I am sure that this unfortunate hint
should have been omitted. Any speculation about that judge’s “actual
influence” on the outcome of the case casts an unnecessary and – even more
importantly – unjustified shadow of doubt on that judge’s integrity. This
finding, last but not least, is not in line with the Court’s case-law and
mission.
3. My other disagreement with the majority relates to paragraph 132 of
the judgment. Therein the Court repeats its dictum, incautiously employed,
inter alia, in the Grand Chamber judgment in Kyprianou v. Cyprus (as well
as in some Chamber cases), that the “special status” (or “specific status”
here in paragraph 132) of lawyers gives them “a central position in the
administration of justice” as “intermediaries between the public and the
courts” (see Kyprianou v. Cyprus [GC], no. 73797/01, § 173, ECHR
2005-XIII).
I cannot agree with such a characteristic. This is a matter of principle.
The adjectives “special” or “specific” do not mean “central”. A lawyer
always represents a party and by definition is not able to occupy “a central
position in the administration of justice”. A party is never “central”, nor can
its representative be. Those with a “central position in the administration of
justice” are the judges (for good or, as is unfortunately sometimes the case,
for ill). The “intermediaries between the public and the courts” are the
courts’ spokespersons, press representatives or – in their own right –
journalists, but in no way lawyers, who represent parties. A lawyer acts in a
party’s interests, for the benefit of a client and, as a rule, is remunerated by
the latter. A lawyer has to heed the represented party’s interests even when
they are in opposition to those of “the public”, i.e., society and the State.
This is not meant to deny or diminish the importance of the function of
lawyers. It is true that they can and do contribute to seeking justice and help
courts to exercise their mission, but lawyers may also aim at obstructing the
pursuit of justice in the interests of their clients – and occasionally do so. It
depends. A party represented by a lawyer may find himself or herself in the
courtroom because he or she seeks justice, but it is probably no less frequent
for the lawyer to represent a party against whom justice is sought.
Every dictum has the potential to be developed, in some future case, into
a ratio. Regarding this particular dictum, I should probably say “danger”
rather than “potential”. Repetition, in yet another judgment of this Court’s
Grand Chamber, of the mantra about lawyers ostensibly occupying “a
central position in the administration of justice” and of being
“intermediaries between the public and the courts”, especially when such a
characteristic is not, in the Court’s case-law, attributed anywhere to the
other party, i.e., the prosecution, distorts the picture. As to the case at hand,
it could have been decided, with no disadvantage to the Court’s findings,
without recourse to this uncritical repetition.
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