The French Constitution does not explicitly guarantee the rights of the defense.
It was the Constitutional Council which, in 1976, declared that the rights of the defense resulted from the “fundamental principles recognized by the laws of the Republic” ( decision n ° 76-70 of December 2, 1976, as much to specify to which law of the Republic the Council was referring.
30 years later, the Constitutional Council specified that ” the principle of the rights of the defense results from article 16 of the Declaration of 1789 “, which specifies that the guarantee of the rights must be ensured by the company ( decision n ° 2006 -535 of March 30, 2006, cons.24 ).
The rights of the defense are therefore one of the fundamental principles recognized by the laws of the Republic.
The Convention for the Protection of Human Rights and Fundamental Freedoms states in Article 10 that “everyone has the right to freedom of expression”
Does this mean that the rights of the defense must not be restricted in their expression, within a judicial precinct?
The Court of Cassation has held that ” the content of the writings produced before the courts, which falls within the fundamental freedom of defense, can not be limited by other limits than those laid down by Article 41 of the Law of 29 July 1881 which organizes, by the suppression, the damages and the reserve of action which it foresees, the only possible sanctions of their ignorance; it follows that a dismissal pronounced as a result of such a lack of knowledge is void as contrary to Article L. 120-2 of the Labor Code “( Cass.Sc. 28 March 2006 No. 04-41695 ).
In this case, an employee had been dismissed because of abusive writings produced during a proceeding. His dismissal was found to be void as contrary to Article 120-2 of the Labor Code, now Article L1121-1, which states: ” No one may make any restrictions to the rights of individuals or individual and collective would not be justified by the nature of the task to be performed or proportionate to the aim pursued . “
“No action for libel, insult or contempt shall be brought, nor shall the faithful report of the judicial proceedings in good faith, nor the speeches pronounced or the writings produced in court.
Nevertheless, the judges, seized of the case and ruling on the merits, will be able to pronounce the suppression of the injurious, outrageous or defamatory speeches, and to condemn who will be to damages.
However, the defamatory facts outside the cause may give rise to either the public action or the civil action of the parties, where these actions have been reserved to them by the courts, and in any case to the action third parties. “
The words or writings benefit from this immunity provided for in Article 41 on the condition that they are produced before the court seised and in the interest of the parties.
Failing that, an action can be taken by people who consider themselves defamed.
It should be noted that a disciplinary sanction may be imposed on a lawyer who contravenes the ethical rules applicable to his profession, including the principles of honor, loyalty, brotherhood, delicacy, moderation and courtesy, irrespective of the immunity he may enjoy for words or writings produced in court.