PROCEDURE

The case originated in an application (no. 34000/96) against the French Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two French nationals, Mr Albert Du Roy and Mr Guillaume Malaurie (“the applicants”), on 13 September 1996. The applicants were represented by Mr J.-Y. Dupeux and Mr C. Bigot, both of the Paris Bar. The French Government (“the Government”) were represented by their Agent, Mr Y. Charpentier, Head of the Human Rights Section, Ministry of Foreign Affairs, and subsequently by his successor, Mrs M. Dubrocard.

Relying on Article 10 of the Convention, the applicants complained of an infringement of their right to freedom of expression.

On 22 October 1997 the Commission (Second Chamber) decided to give notice of the application to the Government, inviting them to submit written observations on its admissibility and merits. The Government submitted their observations on 10 February 1998 and the applicants submitted theirs on 2 April 1998.

Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998, and in accordance with Article 5 § 2 thereof, the case was examined by the Court.

In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court, Mr L. Wildhaber, assigned the case to the Third Section. The Chamber that would consider the case was then constituted within that Section (Article 27 § 1 of the Convention and Rule 26 § 1).

On 15 June 1999 the Chamber declared the application admissible [Note by the Registry. The Court's decision is obtainable from the Registry.].

On 25 June 1999 it requested the parties to submit further evidence and observations, together with any proposals for a friendly settlement, by 30 August 1999 and informed them that they were entitled to request a hearing; it also requested the applicants to submit their claims under Article 41 of the Convention by the same date.

In a letter of 2 July 1999 the applicants asked for a hearing on the merits of the case. In a letter of 27 August 1999 the Government stated that they did not consider a hearing necessary and that they were not prepared to reach a friendly settlement. The parties did not submit any further observations.

On 7 March 2000 the Chamber decided that it was not necessary to hold a hearing.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

At the material time the first applicant was the editor of the weekly magazine L'Evénement du Jeudi and the second applicant was a journalist on the magazine.

In its edition of 11 to 17 February 1993 L'Evénement du Jeudi published an article by the second applicant under the headline: “Sonacotra: the Left puts its house in order”.

The article was particularly critical of Michel Gagneux, the former head of Sonacotra (national company for the construction of workers' housing), and of his relations with Sonacotra's new management, who on 10 February 1993 had lodged a criminal complaint against Mr Gagneux alleging misuse of company property and had applied to join the proceedings as a civil party.

On 11 March 1993 Mr Gagneux summoned the applicants to appear in the Paris Criminal Court to answer a charge of publishing information concerning applications to join criminal proceedings as a civil party, an offence under section 2 of the Act of 2 July 1931. Mr Gagneux considered that he had been the victim of a breach of that provision on account of the following passages of the article published in L'Evénement du Jeudi: “Sonacotra: the Left puts its house in order” “Never before! The managers of a public company have condemned their predecessors' running of the company – and lodged a criminal complaint!” “Raison d'Etat foiled! In bringing a complaint against their predecessor Michel Gagneux for misappropriation and misuse of company property, Sonacotra's managers have shown courage. As they are well aware, there is a serious risk that it will be discovered that men with links to the PS [Socialist Party] have been able to make free with the 'immigrants' cash'.”

In a judgment of 9 July 1993 the Paris Criminal Court found the applicants guilty and fined them 3,000 French francs (FRF) each. In addition to that sentence, damages were awarded to Mr Gagneux in his civil action and an order was made for the judgment to be published. The court noted that the prohibition in section 2 of the Act of 2 July 1931 was general and absolute; the information had only to concern a criminal complaint that had been lodged together with an application to join the proceedings as a civil party. The court further stated that the prohibition was intended to safeguard the presumption of innocence and to prevent any external influence on the course of justice. Accordingly, it was necessary in a democratic society for the “protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” within the meaning of Article 10 of the Convention.

On 16 July 1993 the applicants appealed against that judgment.

In a judgment of 2 February 1994 the Paris Court of Appeal upheld the applicants' conviction and the amount of the fine but reduced to one franc the damages awarded to Mr Gagneux as the civil party. Its decision included the following passage: “The trial court rightly dismissed the defendants' submission that the Act of 2 July 1931 was incompatible with Article 10 [of the Convention], noting that the provisions of that Act, which were designed to protect persons against whom a complaint is lodged, to safeguard the presumption of innocence and to prevent any external influence on the course of justice, fell within the scope of the restrictions on freedom of expression permitted by the ... Convention ..., the restriction in question being proportionate to the aim pursued.”

The applicants then appealed on points of law. In their grounds of appeal they submitted, as they had done in the courts below, that there had been a violation of Article 10 of the Convention. They referred to the general and absolute nature of the prohibition of publication, arguing that it was disproportionate to the aim pursued.

In a judgment of 19 March 1996 the Court of Cassation held that the criminal proceedings had become barred as a result of an intervening amnesty. It further held that it was still required to rule on the appeal on points of law in respect of the civil action and dismissed it, stating in particular: “The Court of Appeal rightly dismissed the defendants' submission that the Act of 2 July 1931 was incompatible with Article 10 of the ... Convention ... While the first paragraph of Article 10 of the said Convention states that everyone has the right to freedom of expression, the second paragraph provides that the exercise of that freedom, since it carries with it duties and responsibilities, may be subject to such formalities, restrictions or penalties as are prescribed by law and are necessary in a democratic society for, inter alia, the protection of the rights of others, and for maintaining the authority and impartiality of the judiciary; such is the purpose, which is proportionate to the aim pursued, of section 2 of the Act cited above.”