France

European Court of Human Rights: Finding against France on Violation of Article 10

IRIS 2000-9:1/2

Agata Witkowska

Patpol

Almost two years after the Canard Enchaîné case, the European Court of Human Rights has again found that France has violated the principles contained in Article 10 of the Human Rights Convention.

The case concerned the finding against the director of a newspaper and a journalist who had reported on the proceedings brought by a company that managed hostels for immigrant workers against one of its former directors. It was taken on the basis of Article 2 of the Act of 2 July 1931, which prohibits the publication before the Courts reach a verdict, of any information concerning proceedings instigated by an individual. The Court of Appeal in Paris, to which the case had been referred, had considered that the ban contained in the 1931 act was compatible with Article 10 of the Convention inasmuch as it was aimed at guaranteeing the presumption of innocence and therefore fell within the scope of the restrictions on freedom of expression authorised by the Act.

As the Court of Cassation had rejected the appeal lodged against this decision, the plaintiffs took the case to the European Court of Human Rights ("Court"). In its decision of 3 October 2000, the Court recalled firstly that journalists writing articles on current criminal proceedings must respect the rights of the parties involved. In considering whether interference with the course of justice was involved, the Court noted that the disputed ban

- which was absolute and general, covering any type of information - only concerned proceedings instigated by an individual and not those instigated by the Public Prosecutor or on the basis of an ordinary complaint. The judges expressed surprise at this difference of treatment, which did not appear to be based on any objective reason, since the ban prevents the press informing the public of facts which may be of public interest (here, the case brought against political figures and their allegedly fraudulent acts in managing a public-sector company).

The Court held that there were other mechanisms for protecting secrecy during investigation and enquiry procedures, such as Articles 11 and 91 of the Code of Criminal Procedure and in particular Article 9-1 of the Civil Code, which provides that everyone is entitled to the benefit of the presumption of innocence. In addition, the latter provision states that in the event of a person against whom a charge has been brought and proceedings instigated by an individual being presented publicly, before any verdict is passed, as being guilty of the facts being investigated or enquired into by the courts, the judge may, even in urgent matters, order the insertion in the publication concerned of an announcement putting a stop to the infringement of the presumption of innocence.

This range of provisions, which the Court found sufficient, made the total ban contained in the Act of 2 July 1931 unnecessary; France had therefore been found in violation of Article 10 since the ban was not proportionate to the pursuit of the legitimate aims intended.