DISSENTING OPINION OF JUDGE COSTA

(Translation)

I. Though unsettled by the reasoning of the majority in the present case, I am not persuaded by it.

The reasoning in paragraphs 33 to 37 of the judgment is in substance the following: convicting the editor of the magazine and the journalist who wrote an article in it was disproportionate to the aims pursued, which were legitimate under paragraph 2 of Article 10 of the Convention. Why? Because the prohibition of the publication of any information concerning applications to join criminal proceedings as a civil party, laid down in section 2 of the Act of 2 July 1931, is general and absolute; because it does not apply to criminal complaints not accompanied by a civil-party application or to proceedings instituted on an application by the public prosecutor's office; and, lastly, because persons to whom such information relates have other means of protection available, such as Article 9-1 of the Civil Code and Articles 11 and 91 of the Code of Criminal Procedure.

Let us consider those three reasons.

Is the prohibition general and absolute? Yes and no. The prohibition on publication is wide, but it is limited in time (“before a judicial decision has been given”). The aim of the prohibition is not only “legitimate”, but eminently praiseworthy: to protect the presumption of the innocence of a person who has not even been placed under investigation but in respect of whom an alleged victim has taken a procedural measure that might lead readers to believe – especially where, as in this case, the information is accompanied by comment – that the person against whom the complaint has been lodged is guilty (in the instant case, of misuse of company property). I would also observe that, according to paragraphs 11 and 12 of the judgment, hardly any time elapsed between the lodging of the complaint by Sonacotra (on 10 February 1993 ) and the publication of the article reporting on it in L'Evénement du Jeudi (in the issue of 11 to 17 February 1993). In any event, as soon as a judicial decision is given – for example, a decision to place under investigation the person in respect of whom the complaint and civil-party application have been lodged – the prohibition lapses; it is therefore not an absolute one.

Is the prohibition limited to criminal complaints accompanied by civil-party applications? Yes; but does that matter? In practical terms, it is precisely the publication of the fact that a civil-party application has been lodged that jeopardises the presumption of innocence. As the public is well aware, this special form of complaint generally triggers a prosecution; the conditions that have to be satisfied for an investigation to be refused, which are set out in Article 86 of the Code of Criminal Procedure and in the case-law of the Criminal Division of the Court of Cassation, are very stringent. Ordinary complaints do not have the same effect at all. And although a prosecutor's application for a judicial investigation sets criminal proceedings in train, it is the act of a member of the national legal service ( magistrat ), who is bound by professional confidentiality and plainly cannot be suspected of wishing to breach the presumption of innocence. It is therefore quite natural that the 1931 Act should have sought to safeguard that principle solely in respect of information concerning civil-party applications.

From a logical standpoint, moreover, I find it odd that the majority should conclude that there has been an infringement of freedom of expression on the ground that the Act does not afford sufficient protection of the rights and reputation of others; I fail to see how a restriction on the principle of freedom can be considered excessive on the ground that it is insufficient!

Unnecessary protection of the presumption of innocence? I do not think so. Although the Act of 15 June 2000 legitimately increased that protection (indeed, that was one of its aims), the Act of 2 July 1931 – at the material time, in any event – was not unnecessary, in my opinion. Article 9-1 of the Civil Code, even as worded before the amendment of 24 August 1993 came into force, might perhaps have enabled Mr Gagneux to exercise a right of reply, or even to obtain compensation; but that is doubtful, and the damage would have been done (“if you throw enough mud, some of it will stick”). As regards the provisions of the Code of Criminal Procedure referred to in the judgment (paragraphs 21 and 36), they do not seem to me relevant: Article 11 makes it an offence to breach the confidentiality of judicial investigations, but civil parties are not bound to observe the confidentiality of them (Court of Cassation, Criminal Division, judgment of 9 October 1978, Bulletin no. 263). And Article 91 only applies if (and when) a judicial investigation begun on a criminal complaint accompanied by a civil-party application has resulted in a decision that there is no case to answer, so that, in any event, the possibility of redress is afforded only at a very late stage.

II. As I am very much in favour of press freedom and suspicious of laws affecting civil liberties that were passed in the period before the Second World War, I should have liked, as a matter of principle, to vote with my colleagues in the majority. But facts are facts. Like the Paris Criminal Court, the Court of Appeal and the Court of Cassation, I consider that in the instant case the small fine imposed on the applicants (which, moreover, was never paid) constituted a penalty that was proportionate to the legitimate aim pursued by the Act, namely protection of the presumption of innocence. That is why I did not vote in favour of finding that there had been a violation of Article 10.