French Lawyer’s Rights To Freedom Of Speech Violated – Mor v. France (application no. 28198/09

French Lawyer Gisele Mor has scored a victory in her appeal to the European Court of Human Rights after lodging a complaint with the Court on 28 April 2009 pursuant to  section 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Mor relied upon Articles 6 and 10 of the Convention, alleging  her conviction for breach of professional confidence and judicial investigation by the Court of Cassation infringed her right to freedom of speech under Article 10 of the Convention.

Both Mor and the French Government  filed written submissions, with briefs being filed by  the National Bar Council and European Bar Council as intervenors.

Background

French Lawyer, acting on behalf of the parents of a 12 year old child who had died of bone marrow suppression after vaccination against hepatitis B.  A manslaughter charge was laid against a pharmaceutical distributor of the vaccine, and a Judicial Commission convened to investigate the matter.

Mor filed complaints against pharmaceutical companies distributing the vaccine concerning similar cases on behalf of other clients as part of the investigation.

In November 2002, a 450 page report was prepared and tendered to the Investigating Judge by an expert.  Mor was contacted by the press at the request of her clients and commented on the expert’s report and other related matters.  The author of the report had significant expertise in drug safety and pharmacoepidemiology.

On November 14, 2002 the daily French newspaper Le Parisien published an article in their health section on the Hepatitis B vaccine along with the report, concluding that the expert report contained overwhelming evidence of maladministration by the health administration in co-operation with manufacturers of the vaccine in approving the safety of the vaccine and concealing adverse incidents including fatalities.

The expert’s findings submitted to the Judicial Investigation were explosive, accusing  health officials of deliberately minimising the adverse effects of the vaccine, the expert’s analysis being based on documents and drugs seized from a laboratory in Strasbourg.

The language of the article by Le Parisien was strident, containing phrases such as “Catastrophe Court” and employing adjectives such as ‘falsification’ and ‘concealment’ to depict the actions of those implicated in what was portrayed as a cover up by the French health bureaucracy.

The article commented on the adverse effects of the vaccine, characterising health officials’ attempts to mitigate the damage caused by the vaccine as bordering on falsification. The report itself suggested  many fatalities related to the vaccine had been suppressed and that 900 people had suffered  neurological diseases, including multiple sclerosis after being administered the vaccination. These figures were stated to be conservative.

The expert concluded that other diseases such as leukemia, rheumatoid and autoimmune diseases were also suspected to have been attributable to the use of the vaccine. Casualties were estimated to be in the thousands. The report referred to an internal memo revealing that it is “one of the largest series of adverse reactions since 1974“.

The report mentioned that the national drug agency had been directly charged in relation to the matter, along with a Professor who was responsible for identifying cases where victims were suspected of suffering complications related to the vaccine.

The report outlined the background to a nationwide vaccination campaign launched in 1994 and the manner in which the health administration  worked extensively with vaccine manufacturers Pasteur-Merieux MSD and SKB in approving vaccines without scrutiny.

As part of a massive effort to encourage vaccination, statistics citing rates of Hepatitis B infection were exaggerated, announced as amounting to  100,000 cases per year. In reality the figures were shown to be approximately 100.   The exaggeration was alleged to be largely attributable to a “misinformation campaign” about the prevalence of hepatitis B, with various persons in positions of influence extolling the benefits of the vaccine for monetary gain. There had been findings of conflicts of interests besieging health experts, public officials and drug manufacturers who stood to gain from the distortions.

There was no authorisation whatsoever for the vaccine, HB vax 10, distributed by Pasteur in colleges,  to be placed on the market. HB vax 10 hadn’t ever been tested on children of the age it was administered to.

The seized documents from the Strasbourg laboratory revealed that health professionals knowingly concealed the magnitude of the problems. Studies and surveys  exonerating vaccines had been funded for by the pharmaceutical companies which had manufactured the vaccine.

There were also documents exchanged between the Director General of Health and other officials acknowledging nothing had been done about the horrific problems, accompanied by requests by the Deputy Council of Health to request the laboratory to attack all doctors who dared to question the 1994 vaccination campaign.

The Le Parisien article was followed by three further articles by other newspaper publications, one which discussed the plight of a deceased victim of the vaccine. The reporter had asked the father of the victim who contracted multiple sclerosis after being administered the vaccine whether he was  part of a sect.

The Le Parisien article alluded to the expert having been under pressure both during and after completing his report.  The paper posed questions to the Lawyer such as  “this investigation report is not too virulent?” Mor responded to this question with a definitive ‘no’, adding that the report showed the state has never been sufficiently resourced to properly assess the extent of the adverse of effects of the vaccine administered to millions of French people.

Mor also commented that the expert report was unprecedented in comprehensively setting out over 400 pages of serious malfunctions.  She said it exposed that “pharmaceutical companies do their utmost to sell their products”, which she ackowledged made perfect sense, but that the state must ensure that there persons receiving the vaccine did so with informed consent. She also mentioned that teachers in colleges had been paid exorbitant salaries from the laboratory without disclosing this.

In her interview, Mor said that expert who had prepared the damning report had been subjected to inordinate pressure, and was one of the few doctors in France prepared to speak out, for which he had paid a high price, losing several professional contracts.  In criminal cases, labs had sent lawyers to harass judges seeking their withdrawal from cases.

In civil proceedings by the families and victims of the injuries suffered the vaccine had been found to have been the cause of the injuries, although appeals had been mounted in respect of the findings.

After the report had been disclosed the criminal indictments for manslaughter had followed.

On the same day as the article was published in Le Parisien, Mor agreed to a radio interview with Europe One on the subject of the expert report.  She commented on the fact that the expert report indicated that the French population and especially children in schools, were treated like guinea pigs.

In the criminal complaint alleging manslaughter Mor joined proceedings herself as a civil party on behalf of the parents of a 12 year old girl who had died from an illness she contracted after being vaccinated against Hepatitis B.

The Lawyer who had been contacted by Journalists was commenting on an article and a report which had already been released.

On December 4, 2002, a few weeks after the report relating to the article published in Le Parisien was published, the pharmaceutical company, the manufacturer of the vaccine, using the MS society to distribute the vaccine against hepatitis B, filed a criminal complaint against Mor alleging a breach of the confidentiality of judicial investigations and a breach of  professional confidence.

Mor objected to the admissibility of the complaint in the Judicial Commission’s manslaughter Investigation.

She made full admissions that she had made comments to the press and spoke with journalists who had read the expert report.

On 16 September 2003 Mor was indicted for violation of the confidentiality of investigations and confidentiality before the Paris Criminal Court for offences punishable under Articles 226-13 and 226-31 of the Criminal Code, in relation to having revealed the existence and content of documents featuring in a judicial investigation and, specifically for revealing the contents of the expert report tendered to the Commission.

On 11 May 2007 the Criminal Court declared Mor guilty of a breach of professional confidentiality.  It held that any previous release of the report by the press, particularly amongst journalists who questioned her, was irrelevant to the commission of the offences, including knowledge held by others of the facts which were the subject of confidentiality.

The Court found that this prior knowledge didn’t deprive these facts of the requisite degree of  confidentiality and secrecy to exonerate the Applicant.  The Applicant was therefore not entitled, according to the Court’s ruling, to claim the benefit of Article 114 paragraph 7 of the Criminal Procedure Code, which she submitted authorised her to make her comments based on the existence of the expert report and express her views on its contents. The Court remarked that expert reports are for the purpose of giving technical advice and it does not follow that disclosure of parts of the report is justified.

The Court discharged her and other persons, who weren’t prosecuted at all  for the breach of confidentiality of the investigation, in the matter relating to the disturbance of the public order.  She was ordered to pay one euro in damages.

On May 15, 2007, cross appeals were launched by Mor and the Prosecution in relation to the Court’s ruling. The conviction was affirmed by a decree of January 10, 2008 of the Paris Court of Appeal.

The Court of Appeal ruled that the statutory provisions didn’t violate the principle of freedom of expression enshrined in Article 10 of the Convention and were necessary to preserve the interests of public and private, in this instance to guarantee the exercise of a profession responsible for the proper functioning of justice and must for that purpose, have the confidence of the public.

Regarding the material element of the offence, the Court found that the comments made by the applicant reflected the content of the conclusions of the expert appointed by the magistrate.  Knowledge by others of the same facts covered by professional privilege didn’t  deprive the facts confidentiality and secrecy.  As for criminal intent, the Court of Appeal found that Mor was necessarily aware of disclosing the information, having learnt of it as a lawyer made a civil party to the investigation.

On 11 January 2008 Mor appealed to the Supreme Court alleging a violation of Article 10 of the convention. A few days after her conviction pharmaceutical companies were indicted for manslaughter in respect of one of the victims and aggravated fraud.

On 28 October 2008 the Court of Cassation dissmissed her appeal.  The Court referred to the provisions of the Criminal Procedure Code, specifically Article 11 which stated “except where otherwise provided by law and without prejudice to the rights of the defence, procedures during an investigation and the investigation are secret”.   Anyone who contributes to a judical investigagtion is bound by the duty of professional secrecy.  The Court said that to prevent the spread of partial or inaccurate information or put an end to a disturbance of public order a prosecutor may, at the request of the investigating court or parties, (in this case the defendant pharmaceutical company), publsh objective evidence d

Article 226-13 states that the revelation of secret infomration by a person by a professional is punishable by imprisonment for one year and 15000 euros in fines.

Article 226-14 specifies that 226-13 doesn’t apply to cases where the law requires or permits the revelation of a secret, nor to inform the public when acts of judicial, administrative, medical or sexual abuse of which they have knowledge of is inflicted on a person unable to protect themselves because of  their age, or physical or mental ailment.

The Article prescribes that in the scenario dealing with medical abuse, the Doctor, with the victim’s consent shall inform the prosecutor of abuses encountered in the practise of his profession without risk of disciplinary sanction for reporting such abuse to authorities.

However article 160 stipulates that a lawyer must not make any disclosure in violation of professional secrecy and must respect the confidentiality of investigations in criminal matters, by not communicating except to his client otherwise than for the purpose of defence information, records, documents or other information. This is is accordance with Article 5 of a Decree concerning ethics of the legal profession.

A lawyer is permitted to send documents or proceedings of a case file to their client or third parties under Article 114 of the Code of Criminal Procedure.

The Court of Cassation surveyed the case law relating to article 226-13 of the Penal Code and held that it did not imply that information could be released even when it is given to a person not bound by the obligation of professional secrecy set out in Article 226-13.

The Court then dealt with European law on the freedom of expression of the legal profession. It was acknowledged that Lawyers should enjoy freedom of freedom, expression and movement, and in particular the right to participate in public debates on issues of law, the administration of justice and issues of law reform.

However when it comes to the roles and duties, the Court referred to the rules that Bar Associations and other regulatory bodies for Lawyers had developed in the form of codes of ethics to ensure that Lawyers defend the rights and legitimate interests of their clients fairly and diligently.

These principles require that lawyers must respect the confidentiality under the law,  regulations and ethics of their profession. Any violation of these obligations could be visited with appropriate sanctions. The Court re-iterated the importance of lawyers respecting the judiciary and practices of the courts.

In convicting her for violation of professional secrecy, the French domestic courts had infringed her right to respect for freedom of expression. She relied on Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right includes freedom to hold opinions and to receive and impart information and ideas without that there could be interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema to a licensing system.
2. The exercise of these freedoms carries with it duties and responsibilities may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law which are necessary in a democratic society in national security, territorial integrity or public safety, the prevention of disorder and crime prevention, protection of health or morals, protection of the reputation or rights of others, for preventing the disclosure of confidential information or for maintaining the authority and impartiality of the judiciary. “

The Court declared that the complaint was not ill-founded when vetting the complaint for it’s admissibility under Article 35  of the Convention.

Mor submitted that in this particular context, an important public health issue, the matter was still before a Judicial Commission for determination despite the passage of a decade since the filing of complaints by families. She spoke of the judicial inertia she had confronted and that the complainant, the pharmaceutical complaint in bringing the complaint against her, was pursuing an agenda to destabilise the investigation.

Mor also argued that restrictions on freedom of expressions imposed on the legal profession should  be regarded as necessary in a democaratic society  in “exceptional cases”.

The European Court of Human Rights agreed that Mor’s conviction infringed her right to freedom of speech under Article 10 of the European Convention.

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