CONCURRING OPINION OF JUDGE LOUCAIDES

I agree with the majority in all respects, but I would like to add the following.

It is true that the provisions of the Act of 2 July 1931 , which prohibit publication of any information regarding criminal proceedings in the form of constitution de partie civile , before a judicial decision is taken, are aimed at preventing abuse of such proceedings by the individuals at whose instance they are instituted. However, it should be pointed out that such proceedings constitute an important safeguard against possible abuses by prosecuting authorities. They are the only proceedings through which individuals may put the machinery of criminal prosecution in motion, the prosecuting authorities having, in such cases, no discretionary power to decide whether to proceed or not. The other possible procedures for instituting criminal proceedings are prosecution at the instance of the public prosecutor and prosecution following a complaint. The last two methods, however, depend on the discretion of the prosecuting authorities.

The beneficial effects of the process of the constitution de partie civile on the administration of the criminal law, especially in serious matters of public interest (like the present case), are evident. And they are so important that they counterbalance any possibility of abuse by the individuals who resort to such a process. In any event, as the Court also points out (see paragraph 36 of the judgment), the system provides sufficient protection for the rights of persons affected by the proceedings in question.

The importance of criminal proceedings in the form of constitution de partie civile as a safeguard for the proper enforcement of the criminal law is, in my opinion, by itself, a special reason necessitating the existence of a right of the press to inform the public about them. The existence of public scrutiny of the relevant process will also add to its effectiveness.

CONCURRING OPINION OF JUDGE Sir Nicolas BRATZA

I agree in all respects with the view and reasoning of the majority of the Court in finding a violation of Article 10 of the Convention in the present case and only wish to add a few supplementary remarks.

In an important passage in its judgment in the Worm v. Austria case ( 29 August 1997 , Reports of Judgments and Decisions 1997-V) the Court observed:

“There is general recognition of the fact that the courts cannot operate in a vacuum. Whilst the courts are the forum for the determination of a person's guilt or innocence on a criminal charge ..., this does not mean that there can be no prior or contemporaneous discussion of the subject matter of criminal trials elsewhere, be it in specialised journals, in the general press or amongst the public at large ...

Provided that it does not overstep the bounds imposed in the interests of the proper administration of justice, reporting, including comment, on court proceedings contributes to their publicity and is thus perfectly consonant with the requirement under Article 6 § 1 of the Convention that hearings be public.” (pp. 1551-52, § 50)

It is true that in the Worm case the Court was concerned with an article which commented on trial proceedings rather than, as here, on the fact that a criminal complaint had been introduced. But the principle stated by the Court appears to me to be equally applicable at this earlier stage of criminal proceedings, the important question at all stages being whether the impugned statements overstepped the proper boundaries set to protect the fair administration of justice.

It is true, too, that in the Worm case itself the Court held that the Austrian courts were entitled to conclude that the applicant had overstepped those boundaries and in consequence found that there had been no violation of Article 10. However, it is important to note that the impugned statements, the statutory provisions in question and the application of those provisions by the domestic courts in the Worm case were entirely different from those in the present case.

In that case, the applicant had published a lengthy article commenting on the trial of Mr A. in which, as the Vienna Court of Appeal found, he had clearly stated the opinion that Mr A. was guilty of the charges of tax evasion on which he was being tried. Further, this view had, as that court further found, been formulated in such absolute terms that the impression was conveyed to the reader that a criminal court could not possibly do otherwise than convict Mr A. The applicant had been prosecuted under a statutory provision which made it an offence to discuss the probable outcome of proceedings or the value of evidence “... in a way capable of influencing the outcome of proceedings ...”. The Vienna Court of Appeal, after a careful and detailed examination of the terms of the article, concluded that it was capable of influencing the outcome of the proceedings against Mr A., noting that it could not be excluded that the members of the trial court, more particularly the lay judges, might read the article.

The Court, in finding that the reasons given by the Vienna Court of Appeal were both “relevant” and “sufficient” and that there had accordingly been no violation of Article 10 of the Convention, emphasised that the judgment of the Vienna Court of Appeal had taken into account the incriminated article in its entirety and was entitled to conclude that the article was capable of influencing the outcome of Mr A.'s trial.

By contrast, in the present case the 1931 Act is cast in terms which, as the Paris Criminal Court observed, are both general and absolute: it prohibits the publication of any information concerning a civil-party complaint prior to a judicial decision, irrespective of the nature of the information published or its factual accuracy, and irrespective of whether its publication could have any influence or effect on the outcome of the proceedings or on the presumption of innocence of the persons subject to the proceedings. Moreover, it is clear that, in finding the applicants guilty of infringing the provision, the domestic courts did not subject the impugned article to any analysis in order to determine whether it was capable of breaching the presumption of innocence of Mr Gagneux or otherwise interfering with the fair administration of justice.

In my view, it has not been shown that the applicants' article posed any such threat to the proper administration of justice and the conviction and fine (albeit modest) imposed on the applicants constituted an unjustified restriction on their freedom of expression.