CASE OF DU ROY AND MALAURIE v. FRANCE
Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
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 ...”