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France24 October 2003

Paris court convicts journalist of receiving document that violated judicial confidentiality

Reporters Without Borders has criticised a Paris criminal court for convicting journalist Gilles Millet on 23 October of receiving a document covered by judicial confidentiality while clearing him of receiving another document covered by professional confidentiality. The court imposed a suspended sentence of a fine of 1,000 euros.

"How can the judges in charge of this case claim the right to information has not been violated," Reporters Without Borders secretary-general Robert Ménard protested. "Convictions for receiving documents that violate professional or judicial confidentiality obstruct the work of the press," Ménard added. "They threaten the confidentiality of journalistic sources by banning the possession or publication of certain documents, even though journalists are not bound by professional or judicial secrecy."

The organisation also noted that the homes of journalists enjoy no protection as regards searches, unlike the premises of news organisations, which can only be searched in a judge’s presence (article 56-2 of the criminal procedure code).

The case began when Millet’s home was searched on 20 June 1998 by the national anti-terrorist directorate as part of an investigation headed by Jean-Louis Bruguière into "criminal association in connection with a terrorist enterprise." This was four months after the murder of Corsica prefect Claude Erignac. Millet, who now works for the monthly Corsica, was then a Corsica specialist with L’Evènement du Jeudi.

The police confiscated two of Millet’s notebooks and found two documents: the copy of a report that was covered by judicial confidentiality as it was drawn up as part of an investigation into the pork industry in Corsica, and a report by the financial inspectorate, covered by professional confidentiality. Following the search, Millet was placed in police custody for 48 hours before being charged. Reporters Without Borders denounced this at the time as a violation of press freedom and the confidentiality of journalistic sources.

Millet was convicted today for having the judicial report. The judges concluded that he must have known this report was covered by judicial confidentiality. They claimed there was no violation of the right to information as the prosecution was justified by the obligation to "protect the reputation or rights of a third party and guarantee the authority and impartiality of the judiciary."

The European Court of Human Rights (ECHR) has already criticised France for similar convictions. But the French courts are not obliged to comply with ECHR rulings. The fact that the ECHR has come out clearly against French judicial practices has not sufficed to induce the French courts to follow its recommendations.

The ECHR ruled on 21 January 1999 that France had violated article 10 of the European Convention by convicting Le Canard Enchaîné of possessing documents that violated professional confidentiality. The court said that publishing a document covered by judicial confidentiality was justified in this case by the public’s right to be informed about matters of general interest.

The court of cassation never bowed to this ECHR ruling and, in June 2001, for example, it upheld the conviction of the authors and publishers of the "Les Oreilles du Président," a book about phone-tapping by the Elysée Palace. They were convicted of receiving documents that violated professional or judicial confidentiality because they had used reports of phone-tapping that were part of an investigating judge’s dossier. The defence invoked article 10, but the court of cassation ruled that freedom of expression was not paramount in this case. The conviction was justified, it said, because this freedom was limited by the need to protect the rights of a third party and guarantee the judiciary’s authority and impartiality.

Convictions for receiving documents that violate confidentiality began in the 1990s in connection with political and financial scandal and despite the ECHR’s rulings, they have continued. These convictions also undermined the right of journalists accused of defamation to present evidence to support what they had said. This at least was the case until the court of cassation in June 2002 accepted that a journalist does have the right to have documents covered by judicial confidentiality if they are necessary for his defence.

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