CASE OF DU ROY AND MALAURIE v. FRANCE

1. 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.
2. Relying on Article 10 of the Convention, the applicants complained of an infringement of their right to freedom of expression.
3. 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.
4. 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.
5. 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).
6. On 15 June 1999 the Chamber declared the application admissible [ Note by the Registry. The Court's decision is obtainable from the Registry.].
7. 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.
8. 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.
9. On 7 March 2000 the Chamber decided that it was not necessary to hold a hearing.
I. THE CIRCUMSTANCES OF THE CASE
10. 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.
11. 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”.
12. 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.
13. 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'.”
14. 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.
15. On 16 July 1993 the applicants appealed against that judgment.
16. 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.”
17. 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.
18. 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.”
19. Section 2 of the Act of 2 July 1931 provides:
“The publication, before a judicial decision has been given, of any information concerning applications to join criminal proceedings as a civil party under Article 63 of the [former] Code of Criminal Procedure [ Code d'instruction criminelle ] [Article 85 of the current Code of Criminal Procedure ( Code de procédure pénale )] shall be prohibited, on pain of a fine of FRF 120,000 as laid down in the last paragraph of section 39 of the Act of 29 July 1881 ...”
20. Article 9-1 of the Civil Code provides:
“Everyone is entitled to be presumed innocent until proved guilty. Where a person ... the subject of ... a criminal complaint lodged together with a civil-party application is, before any judgment has been given against him, publicly portrayed as being guilty of an offence or offences in respect of which an inquiry or judicial investigation is being conducted, the court may direct, even on a summary application, that a notice be printed in the publication concerned in order to end the breach of the presumption of innocence ...”
21. The relevant provisions of the Code of Criminal Procedure read:
“Except where the law provides otherwise and without prejudice to the rights of the defence, proceedings during the inquiry and the judicial investigation shall be confidential ...”
“Where, after a judicial investigation begun on a criminal complaint and civil-party application, a decision has been taken that there is no case to answer, the public prosecutor may summon the civil party before the criminal court in which the case was investigated. If the complaint and civil-party application are held to have been an abuse of process or to have been intended purely to gain time, the court may impose a civil fine, the amount of which shall not exceed FRF 100,000. The proceedings must be brought within three months of the date on which the decision that there is no case to answer becomes final.
Within the same period and without prejudice to the institution of criminal proceedings for malicious prosecution, the person placed under investigation or any other person who was the subject of the complaint may, if he does not bring a civil action, seek damages from the complainant ...”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
22. The applicants submitted that their conviction by the Paris Court of Appeal had infringed Article 10 of the Convention, which provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, 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.”
23. The applicants' conviction amounted to “interference” with the exercise of their right to freedom of expression. Such interference will infringe Article 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 and was “necessary in a democratic society” in order to achieve the aim or aims in question.
24. It was common ground that the interference was “prescribed by law”, namely section 2 of the Act of 2 July 1931. The Court shares that view.
25. According to the parties, the interference was intended to protect the reputation and rights of others and to maintain the authority and impartiality of the judiciary. The Court sees no reason to conclude otherwise.
C. “Necessary in a democratic society”
26. The Court must therefore consider whether the interference was “necessary in a democratic society” in order to achieve the above aims.
27. The Court reiterates the fundamental principles established by its case-law on Article 10.
(i) Freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 23, § 49, and the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 26, § 37).
(ii) The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see the De Haes and Gijsels v. Belgium judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, pp. 233-34, § 37). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see the Prager and Oberschlick v. Austria judgment of 26 April 1995, Series A no. 313, p. 19, § 38).
(iii) As a matter of general principle, the “necessity” for any restriction on freedom of expression must be convincingly established. Admittedly, it is in the first place for the national authorities to assess whether there is a “pressing social need” for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In cases concerning the press, such as the present one, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued (see, mutatis mutandis, the Goodwin v. the United Kingdom judgment of 27 March 1996, Reports 1996-II, pp. 500-01, § 40, and the Worm v. Austria judgment of 29 August 1997, Reports 1997-V, pp. 1550-51, § 47).
(iv) The Court's task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In so doing, the Court must look at the “interference” complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, among many other authorities, the Goodwin judgment cited above, ibid.).
2. Application of the above principles in the instant case
28. The applicants pointed out that the 1931 Act quite simply prohibited the publication of any information, whether damaging or not, about proceedings instituted on a civil-party application. They pointed out that the principle of the confidentiality of judicial investigations as provided in Article 11 of the Code of Criminal Procedure applied to all types of criminal proceedings; there was therefore no valid reason for making confidentiality stricter and treating it as absolute in certain types.
29. The applicants further maintained that the absolute confidentiality laid down by the Act in issue was not in any way intended to safeguard the presumption of innocence. To adopt such an interpretation would, they argued, be to do no less than attribute to the press intentions it did not have. When the press reported information or ideas about a matter of public interest, its aim was to establish the truth of the matter and not particularly to pillory guilty parties. The applicants submitted that there was no reason to strengthen the protection afforded by Article 9-1 of the Civil Code where proceedings instituted on a civil-party application were concerned. They concluded that subjecting the press to absolute confidentiality was manifestly incompatible with proper provision of information to the public in a democratic society.
30. The Government pointed out, as a preliminary, that the Court had held that the imposition of prior restraints or bans on publication could not be regarded as ipso facto incompatible with Article 10 of the Convention. In that connection, they relied on the Observer and Guardian v. the United Kingdom judgment of 26 November 1991 (Series A no. 216, p. 30, § 60). They further argued that the interference in issue had also been necessary to guarantee the impartiality and fairness of the proceedings while at the same time safeguarding the presumption of innocence. The 1931 Act had merely reflected the need to respect the principle of presumption of innocence, strengthening that presumption more particularly in the case of criminal complaints lodged together with civil-party applications, on account of the risks potentially attaching to unwarranted recourse to that procedure.
31. The Government added that no other means of protecting Mr Gagneux's rights existed that would have made the prohibition provided for in the 1931 Act unnecessary. They pointed out that the other means of protecting persons against whom judicial proceedings were instituted did not pursue the same aim as the Act in issue. Article 9-1 of the Civil Code protected the right to presumption of innocence in civil matters; by definition, only a person placed under investigation could rely on that provision, which amounted only to a form of right of reply. As to an action brought under Article 91 of the Code of Criminal Procedure, that merely punished ex post facto persons who had abused their right to bring court proceedings by making a civil-party application that was an abuse of process or was intended purely to gain time.
32. Lastly, the Government maintained that, while the prohibition of publication in the 1931 Act was mandatory throughout the investigation, it was never anything but a temporary measure and ceased as soon as a judicial decision was given. Consequently, the right to inform was merely postponed and its effects delayed, so as to give the courts the opportunity to satisfy themselves that the complaint was not a frivolous one.
33. In the light of those arguments, the Court considers that it must examine whether there were relevant and sufficient reasons, for the purposes of paragraph 2 of Article 10, to justify the applicants' convictions.
34. Journalists reporting on criminal proceedings currently taking place must, admittedly, ensure that they do not overstep the bounds imposed in the interests of the proper administration of justice and that they respect the accused's right to be presumed innocent (see the Worm judgment cited above, p. 1552, § 50).
35. The Court observes, however, that the interference in issue took the form of a general and absolute prohibition of the publication of any type of information.
Although the domestic courts have, as in the instant case, held the prohibition to be justified as a means of protecting the reputation of others and maintaining the authority of the judiciary, that justification does not appear sufficient, seeing that the ban applies only to criminal proceedings instituted on a complaint accompanied by a civil-party application and not to those instituted on an application by the public prosecutor's office or on a complaint not so accompanied. Such a difference in the treatment of the right to inform does not seem to be based on any objective grounds, yet wholly impedes the right of the press to inform the public about matters which, although relating to criminal proceedings in which a civil-party application has been made, may be in the public interest, as was so in the instant case, concerning as it did French political figures and their allegedly fraudulent actions as directors of a public company managing housing for immigrants.
36. The Court notes in any event that other means of protecting the rights of the accused, such as Article 9-1 of the Civil Code and Articles 11 and 91 of the Code of Criminal Procedure, make the absolute prohibition in the 1931 Act unnecessary.
37. In conclusion, convicting the journalists was not a measure that was reasonably proportionate to the legitimate aims pursued, regard being had to the interest of a democratic society in ensuring and maintaining press freedom. There has therefore been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
38. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
39. The applicants sought the sum of 100,000 French francs (FRF).
40. The Government noted that the applicants were seeking compensation for pecuniary damage of which no evidence had been adduced, and which had not been established as being directly linked to the applicants' complaint. They also considered that non-pecuniary damage would be sufficiently compensated by any finding of a violation of the Convention.
41. The Court considers that the finding of a violation in this judgment constitutes in itself sufficient just satisfaction.
42. The applicants claimed FRF 150,000 in respect of costs and expenses relating to their representation. They broke that sum down as follows: FRF 100,000 for the proceedings in the domestic courts and FRF 50,000 for the proceedings before the Convention institutions.
43. The Government stated that they would be prepared to reimburse the fees paid by the applicants, provided that the relevant vouchers were produced and that the claims were reasonable.
44. On the basis of the information before it, the Court, making its assessment on an equitable basis, awards the applicants FRF 50,000.
45. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 2.74% per annum.
1. Holds by six votes to one that there has been a violation of Article 10 of the Convention;