CEDH · CASELAW;CLIN;ENG — 15 juillet 2010

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France - 34875/07 Judgment 15.7.2010 [Section V] Article 10 Article 10-1 Freedom of expression Conviction for defamation following publication of a book in which a former defendant described his own trial: violation   Facts – The applicant is a lawyer and politician who was formerly a government minister and President of the Constitutional Council. Between 1997 and 2003 he was implicated in a case which uncovered a web of corruption involving politicians and business leaders. In 2003 he was acquitted of aiding and abetting the misappropriation of company assets and handling misappropriated company assets. Shortly afterwards, he published a book containing an account of the court case, including one incident at a hearing in January 2001 when he had said that during the war the public prosecutor could have sat in the Special Sections (special tribunals set up during the German occupation). In 2006, in the context of an action for defamation prompted by the book’s publication, the court of appeal, overturning the first-instance judgment, ordered the applicant and his publisher to pay fines and damages for having defamed a member of the legal service. In 2007 the Court of Cassation dismissed an appeal on points of law by the applicant. Law – Article 10: The applicant’s conviction had amounted to interference with his right to freedom of expression. It had been prescribed by law and had pursued the legitimate aim of protecting the reputation and rights of others, namely the public prosecutor. Seeing that the relevant passages of the book concerned an affair of State that had attracted widespread media coverage, that the applicant had been writing as a former politician and that the book amounted to a form of political expression, Article   10 called for a high degree of protection of the right to freedom of expression. Accordingly, the authorities had a particularly limited margin of appreciation in assessing whether the measure in question had been necessary. Because the court of appeal had chosen to examine the contentious passages of the book as a whole, the only factors it had taken into account as constituent elements of defamation had been the allegations that the principle of procedural fairness had been breached and that the public prosecutor had behaved like a judge of the Special Sections. The court of appeal had disregarded part of the alleged offence and had thus based its finding on a single statement without putting it in context, and in concluding that the applicant had not acted in good faith it had relied on allegations for which he had not been prosecuted. There was cause to fear that such a method of analysis might not make it possible to identify with any certainty the motives behind the allegation that had given rise to the criminal penalty, or at the very least to understand why they had formed a basis for a finding of defamation. Furthermore, the comments made in the book and held to be defamatory were the same as those made by the applicant during the trial in January 2001. At that time, however, no proceedings had been instituted against the applicant, a fact which the court of appeal should have taken into account. Indeed, in the book the applicant had simply made use of his freedom to recount his own trial as a former defendant. Although, unlike defence counsel, he did not enjoy a wide discretion to criticise a public prosecutor by virtue of the principle of equality of arms, that was not a sufficient reason to tolerate the ex post facto review of statements made by him in court. Treating the impugned comment not as a criticism of the public prosecutor’s alleged frame of mind but as a precise fact capable of being examined in adversarial proceedings, and requiring the truth of that allegation to be proved even though the applicant’s book had provided an explanation of his anger and of the intellectual process that had prompted his excessive conduct, did not appear to constitute a reasonable approach to the facts. Regard being had to those factors and to the national courts’ confusion of the incident during the hearing in January 2001 with the account of it in a book published at a later stage, the reasons given for the applicant’s conviction did not persuade the Court that the interference with his freedom of expression had been necessary in a democratic society. Conclusion : violation (five votes to two). Article 41: EUR 8,000 in respect of pecuniary damage; finding of a violation sufficient in itself as regards non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes