In November 2009, a French lawyer lost his appeal on points of law. His conviction for remarks on the functioning of the judiciary became final. In April 2015, the Grand Chamber of the European Court of Human Rights found in his favour. In December 2016, his case came back before the Court of Cassation, sitting as a full court. To understand what can still be at stake after an appeal on points of law has been dismissed, we need to go through these three decisions in order.
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“Maître, I lost in the Court of Cassation.” When a client says these words, they usually know very well what they have lost: a case, a sum of money, sometimes their liberty or their reputation. What they are less sure of is whether the question that matters to them has received its final answer. So I ask them: “If you could show a European judge just one thing, what would you want that judge to see in your file?”
The answer often makes it possible to tell two situations apart. One client wants the witness whom the judges disregarded to be believed at last. Another explains that they were convicted for speaking out on a matter of public interest and that the reasons given for punishing them take no account of the circumstances in which they spoke. The first disagreement, on its own, concerns the assessment of a piece of evidence. The second raises a question that the Convention specifically entrusts to the European Court: did the State have sufficient reasons to restrict a guaranteed freedom? Strasbourg is not a court of fourth instance. The whole difficulty lies in understanding what that formula leaves open.
Olivier Morice was one of the lawyers acting for the widow of Judge Bernard Borrel, who was found dead in Djibouti in 1995. On 6 September 2000, together with a colleague, he wrote to the Minister of Justice asking for an inquiry into the conduct of the judicial investigation. Among the facts they drew attention to were the circumstances in which a video-cassette, missing from the case file, had been handed over to the judge newly assigned to the investigation, and the discovery, along with it, of a handwritten card revealing a familiarity between the public prosecutor of Djibouti and one of the French judges. The next day, Le Monde reported on the initiative and also published statements by the lawyer. He was convicted of complicity in the public defamation of judges. On 10 November 2009, the Court of Cassation dismissed his appeal on points of law1.
Why do these details still matter once the French proceedings are over? Because one and the same sentence can be a baseless personal attack or a severe criticism whose origin can be understood from the file. The cassette, the card, the letter and the chronology give the judge the means to tell the difference. They also matter because a lawyer who publicly criticises a judicial investigation speaks in a dual capacity: defending the interests of a client and taking part in a debate on how the justice system has functioned.
It was not for the Grand Chamber to shed light on Judge Borrel’s death. It had to rule on a different decision of the French State, one identifiable in the file: the criminal conviction of a lawyer on account of his remarks. Under Article 10, it examined the matter of general interest to which those remarks related, the facts on which the lawyer’s assessments were based, the context in which they were published and the reasons put forward to justify his conviction. On 23 April 2015, it unanimously found a violation of freedom of expression2.
The distinction matters to the litigant. Saying “the French judges were wrong to convict me” does not yet amount to a European line of reasoning. In Morice, the complaint could be framed more precisely: what grounds entitled France to impose a criminal penalty for those remarks, given their factual basis and the public’s interest in being informed about that investigation? That formulation makes it necessary to read the reasons for the conviction. It also makes it possible to recognise the interests at stake, including the reputation of the judges targeted and the constraints that limit their ability to respond publicly. It was after examining them that the Grand Chamber found the conviction unjustified.
A second complaint makes the case more instructive still. A judge who sat on the bench that dismissed the appeal on points of law had, in July 2000, at a general meeting of the judges of the Paris tribunal de grande instance (court of first instance), publicly expressed his support for one of the judges concerned, in the context of a different case. Under Article 6 § 1, the Grand Chamber examined whether that circumstance could give rise, on the applicant’s part, to an objectively justified doubt as to the impartiality of the bench. It also unanimously found a violation3. Here, the European question lay in the very composition of the court that had ruled at last instance. To identify it, it was also necessary to examine how the appeal on points of law had been decided.
The European judgment did not, by itself, erase the French conviction. On 14 April 2016, the Cour de révision et de réexamen (Court of Review and Re-examination) granted the application for re-examination and referred the appeal on points of law to the Court of Cassation, sitting as a full court. On 16 December 2016, the full court quashed, without remitting the case, the judgment of the Rouen Court of Appeal in so far as it had convicted Olivier Morice, and acquitted him. It held that the remarks concerned a matter of general interest, had a sufficient factual basis and did not exceed the permissible limits of freedom of expression4. The concrete outcome for the lawyer came from this sequence of decisions, each delivered by the competent court.
That is also what distinguishes this second article from the one devoted to admissibility. In the first, the question was whether the complaint could still reach the European judge. Here, the question is why it deserves to get there even though a supreme court has already ruled. The answer lies neither in the number of hearings nor in the client’s firm belief that they have suffered an injustice. It lies in the ability to identify a specific interference and to show, through the documents and the very reasons given in the decisions, how the European guarantee remains at stake.
After an appeal on points of law has been dismissed, I would want to be able to place three passages from the file side by side: the one in which the interference was complained of, the one in which the court responded to it and the one that makes it possible to assess the consequences of its decision for the person concerned. In a case such as Morice, the exact remarks that led to the conviction must be added to these. Without them, we are discussing freedom of expression in the abstract. With them, their context and the documents available at the time they were made, we can at last discuss whether that conviction was necessary.
To the question “I lost in the Court of Cassation; what is left to defend?” the Morice case thus gives a demanding answer. What remained to be defended was a lawyer’s right to criticise, on a sufficient factual basis, the conduct of a judicial investigation of public interest. What also remained to be asked was whether the bench that had dismissed his appeal offered the requisite guarantees of impartiality. Two distinct questions, anchored in verifiable facts. It was their precision that justified reopening the case after it had been closed in France.
Links to the case-law of the European Court of Human Rights open the official text on HUDOC: in English where it exists, otherwise in French.
These notes are general information on Convention law; they do not constitute legal advice and do not create a lawyer-client relationship.
After the final decision of the highest national court, a case may be submitted to us directly, by the client or by their lawyer.