Patricia Tourancheau, a journalist, and Serge July, the editor of the French newspaper Libération were prosecuted, convicted and fined 10,000 Francs each for violating a statute of 1881, the Law on the Freedom of the Press of 29 July 1881, which prohibits the publication of any documents concerned with criminal or correctional proceedings prior to their reading in a public audience.
The article at hand, “Amour d’ados planté d’un coup de couteau”, which translates roughly to “Love of teenagers planted with a knife”, was published on October 28, 1996, in the French publication Libération, and discusses the murder case of Marléne Volbrecht from the account of one of the defendants, Benoît Le Gall.
[2] Tourancheau ended the article talking about how Benoît “nevertheless remains accused of murder”, which was said by the courts to impale the presumption of innocence to Aurélia.
On June 10, 1998, the Juvenile Court in Paris declared Aurélia guilty to have deliberately killed Marléne and sentenced her to eight years in prison.
Article 38, paragraph 1, states “it is forbidden to publish indictments and any other criminal or correctional proceedings before they have been read in open court, under the penalty of the fine provided for contraventions of the 40th class.” The case was brought before the Tribunal de Grande Instance by a Paris Court of First Instance prosecutor against Tourancheau and July on the 10th and 15th of April in 1997.
[6] (3) Section 38 of the 1881 Act is notoriously fallen into disuse since no case law directly applying it has been recorded for a long period.
They argued that no complaint had been filed by Aurélia, whose rights have been ‘apparently’ challenged according to the previous rulings of the French Judiciary.
Additionally, the applicants claimed that prohibiting the press from mentioning criminal proceedings is not possible in a democratic society and does not correspond in any way to current practice in France.
[7] The conviction was found to clearly interfere and infringe on the defendant's, Tourancheau and July, exercise of their right to freedom of expression.
They found that there could be harmful dissemination of the article, again, on the protection of the reputation and rights of Aurélia, including her presumption of innocence and the impartiality of the judiciary.
The joint dissenting opinion of Judges J.P. Costa, F. Tulkens, and P. Lorenzen stated, obviously, that they did not agree with the majority that the applicants’ conviction constituted an interference with their freedom of expression “necessary in a democratic society”.
“Freedom of expression is one of the essential foundations of a democratic society ad it is settled case-law that the necessity for any restriction in the exercise of this freedom must meet a pressing social need.” [9] They included their belief that the public has a legitimate interest in being informed and to be informed about the criminal trials and particularly of the facts related to the dramatic case of these young people's love.
Furthermore, they believe there is no reasonable relationship of proportionality between the restrictions imposed on the applicants’ freedom of expression, and the legitimate aim pursued, concluding that there had been a violation by the French domestic courts, of the Convention's Article 10.