CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 15 juillet 2010

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France (application no 34875/07)     Conviction of roland dumas Following publication OF HIS BOOK l’épreuve, les preuves INFRINGED HIS FREEDOM of expression   By a majority   Violation of Article 10 (freedom of expression) of the European Convention on Human Rights     Principal facts   The applicant, Roland Dumas, is a French national who was born in 1922 and lives in Paris. He is a lawyer and politician who was formerly Minister for Foreign Affairs and President of the Constitutional Council. Between 1997 and 2003 he was implicated in the “Elf affair”, which uncovered a web of corruption involving French politicians and business leaders. In January 2003 he was acquitted of aiding and abetting the misappropriation of company assets and handling misappropriated company assets.   In March 2003 he published a book entitled L’épreuve, les preuves (“The ordeal and the evidence”), containing an account of the court case. In it he recounted statements made during the trial, including one incident when he took the public prosecutor to task for asking questions about acts not relating to the charges against him. Believing this to breach the principle of a fair trial, Roland Dumas had reacted forcefully, remarking to his lawyer: “I   wonder what he would have done during the war”, before answering his own question by suggesting that the prosecutor would have been “in the Special Sections”. [2] The prosecutor heard these comments, which were reported in the media. At the time, however, Roland Dumas was not prosecuted for insulting a member of the legal service and no disciplinary action was taken against him as a lawyer. In recounting the incident in his book, describing his comments as an “audacious parallel”, Roland Dumas put them in context and explained that they had been prompted by his feelings of revolt at the end of an arduous trial and by the “trace of neurosis” within him (linked to his family history).   Following publication of the book, the public prosecutor considered that it contained defamatory statements against him. On 15 April 2003 the Minister of Justice lodged a criminal complaint alleging defamation of a member of the legal service. Six passages from the book, including those cited above, formed the basis for the prosecution. On 25   February   2005 the Paris Criminal Court acquitted Roland Dumas. It held that some of the statements in question were covered by the freedom to express criticism and had not overstepped the relevant limits. As regards the parallel drawn with judges of the Special Sections during the Occupation, it acknowledged that such comments were particularly offensive to a member of the legal service; however, it found that there had not been a specific factual allegation susceptible of proof, an essential requirement of a conviction for defamation. On 19 January 2006 the Paris Court of Appeal overturned that judgment. It ordered Roland Dumas to pay a fine of 3,000 euros (EUR) and his publisher a fine of EUR   2,000. As regards the civil claim, it ordered them, jointly and severally, to pay EUR   1,000 in damages and 3,000 EUR in costs. It held that the passages in question, which could not be viewed in isolation from each other, were defamatory, since Roland Dumas had been unable to prove either that the comparison with the judges of the Special Sections was true or that he had made it in good faith. On 6 February 2007 the Court of Cassation dismissed an appeal on points of law by Roland Dumas and ordered him to pay EUR   3,000 in costs.     Complaints, procedure and composition of the Court   Relying in particular on Article   10, Roland Dumas complained that his conviction had breached his freedom of expression.   The application was lodged with the European Court of Human Rights on 3 August 2007.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President , Renate Jaeger (Germany), Karel Jungwiert (the Czech Republic), Mark Villiger (Liechtenstein), Isabelle Berro-Lefèvre (Monaco), Zdravka Kalaydjieva (Bulgaria), judges , Jean Yves Monfort (France) , ad hoc judge , and also Claudia Westerdiek , Section Registrar .     Decision of the Court   The Court had to determine whether Roland Dumas’s conviction – which was in accordance with French law and had pursued the legitimate aim of protecting the public prosecutor’s reputation and rights – could be regarded as “necessary in a democratic society”. It   observed that the margin of appreciation enjoyed by the authorities in assessing such “necessity” was particularly limited. The book by Roland Dumas concerned an affair of State that had attracted widespread media coverage; it had imparted information of public interest on the functioning of the judiciary and, moreover, fell within the scope of political expression.   The Court considered, firstly, that the method of analysis used to convict Roland Dumas had been dubious. In particular, the Paris Court of Appeal had ignored certain aspects of the alleged offence, focusing on a single comment (“you could have sat in the Special Sections”) without referring to its context in the reasoning, while at the same time needing to rely on assertions for which Roland Dumas had not been prosecuted in order to find that he could not be said to have acted in good faith.   The Court also attached particular importance to the fact that no criminal proceedings had been pending against Roland Dumas at the time when the statements in question had been made. The Court of Appeal should have taken that factor into account in weighing up the respective interests of Roland Dumas and the public prosecutor.   In addition, in his book Roland Dumas had merely exercised his freedom, as a former defendant in criminal proceedings, to recount the story of his own trial. He had also been careful to put his comments in context and to explain them. He had given an explanation of his anger and what had caused it, distancing himself from his own excesses by describing his loss of control and referring to an “audacious parallel”.   The Court considered, lastly, that treating the reference to judges of the Special Sections 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 accusation to be proved even though the impugned passages of the book by Roland Dumas had given an explanation of his anger and the intellectual process that had prompted his excessive remarks, did not constitute a reasonable approach to the facts.   The Court thus concluded by five votes to two that there had been a violation of Article 10.   It held that, by way of just satisfaction (Article 41), France was to pay Roland Dumas EUR   8,000 in respect of pecuniary damage as reimbursement of the sums he had been ordered to pay. It further held that the finding of a violation of Article 10 constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by Roland Dumas.   Judges Jaeger and Villiger expressed a separate opinion, which is appended to the judgment.   ***   The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website .   Press contacts [email protected] / +33 3 90 21 42 08 Frédéric Dolt (telephone: + 33 3 90 21 53 39) Emma Hellyer (telephone: + 33 3 90 21 42 15) Tracey Turner-Tretz (telephone: + 33 3 88 41 35 30) Kristina Pencheva-Malinowski (telephone: + 33 3 88 41 35 70) Céline Menu-Lange (telephone: + 33 3 90 21 58 77) Nina Salomon (telephone: + 33 3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the   day the   request is rejected. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution .   [2] The Special Sections were special tribunals attached to courts of appeal, set up by the Vichy regime in 1941 during the German occupation for the purpose of trying members of the Resistance, in breach of the fundamental principles of criminal law.