Facts
This decision concerns a nullity appeal filed by Lawyer X. against a judgment of the Cantonal Court of Basel-Landschaft which had convicted him of defamation (Art. 173 SCC) following certain statements made during a pleading in the context of a dispute over the attribution of child custody.
During the proceedings before the Higher Court, Lawyer X. had stated, among other things, that his opponent "fabricates means of proof", "presented a decision of the tax administration that was falsified and manipulated", and that "his means are not beautiful or not legal". The Cantonal Court had ruled that only the latter statement was punishable as defamation, but that the other two were justified.
Considerations
The Criminal Cassation Court upheld Lawyer X.'s nullity appeal and annulled the judgment of the Cantonal Court. It considered that the lawyer's statements, although they could be considered detrimental to honour, were justified by his professional duty (Art. 32 SCC) to defend the interests of his client in the context of the dispute over the attribution of custody.
Indeed, in such a trial, the lawyer has the right and the duty to raise all relevant elements, including those that may be unfavourable to the opposing party, provided that these elements are not presented in an unnecessarily hurtful manner and that they are…