FRESSOZ AND ROIRE v. FRANCE JUDGMENT
15
made a complaint before the Court of Cassation that was in substance
connected with a breach of Article 10. The Delegate of the Commission in
addition maintained before the Court that, as the Court of Cassation's
powers had been limited (it could not have reopened the Court of Appeal's
findings of fact), it was unlikely that redress for the alleged violation would
have been obtained through an appeal on points of law. In his opinion, there
would have been little point in the applicants' asserting their right to
freedom of expression when dissemination of the information did not give
rise to a risk of conviction under the general law.
36. Article 35 § 1, formerly Article 26, of the Convention reads as
follows:
“The Court may only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international law, and within
a period of six months from the date on which the final decision was taken.”
37. The Court reiterates that the purpose of the rule referred to above is
to afford the Contracting States the opportunity of preventing or putting
right – usually through the courts – the violations alleged against them
before those allegations are submitted to the Court. That rule must be
applied “with some degree of flexibility and without excessive formalism”;
it is sufficient that the complaints intended to be made subsequently in
Strasbourg should have been raised, “at least in substance and in compliance
with the formal requirements and time-limits laid down in domestic law”,
before the national authorities (see the Castells v. Spain judgment of
23 April 1992, Series A no. 236, p. 19, § 27, and the Akdivar and Others v.
Turkey judgment of 16 September 1996, Reports 1996-IV, pp. 1210-11,
§§ 65-69).
38. The applicants are engaged in the business of disseminating
information and were convicted after publishing documents. In the Court of
Cassation the applicants relied on various provisions of the Freedom of the
Press Act of 29 July 1881, which, so far as the applicants' activities are
concerned, contains provisions equivalent to those of Article 10. In their
pleadings in support of their appeal to that court, the applicants argued that
their article had not contravened any provision of the Freedom of the Press
Act and that, as a journalist, Mr Roire had simply been doing his “duty”
(see paragraph 23 above). In their pleading in reply, the applicants criticised
the prosecution for confusing “handling” with “publication” saying that they
had been charged with handling so that they could be prosecuted under the
general law rather than under the special provisions governing the media
(see paragraph 23 above). Indeed, by making a distinction in its judgment
between the law applicable to the information itself and the law applicable
to the document in which it was contained, the Court of Cassation indirectly
ruled on the scope of journalists' rights to information.
39. In these circumstances, the Court holds that freedom of expression
was in issue, if only implicitly, in the proceedings before the Court of
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