De Haes and Gijsels v. Belgium (7/1996/626/809) 24 February 1997 : judgment against journalists for defamation of magistrats and fairness of the proceedings against the journalists - Accusations against the judges and Advocate-General amounted to an opinion - comments severely critical but proportionate to the indignation caused by the matters alleged - Journalists' legitimate concern not to risk compromising their sources of information

Belgium - judgment against journalists for defamation of magistrats and fairness of the proceedings against the journalists (Articles 1382 and 1383 of the Civil Code)

I. Article 10 of the Convention

Judgment complained of amounted to an "interference" with applicants' exercise of their freedom of expression, had been "prescribed by law" and had pursued at least one of the legitimate aims referred to in Article 10 § 2 (protection of reputation or rights of others).

Recapitulation of case-law on role of press in a democratic society.

Regard being had to seriousness of allegations, applicants had not failed in their professional obligations by publishing what they had learned about the case of the notary X - the information published had not been put in doubt by the judges and Advocate-General who had brought the defamation proceedings, except in one instance.

Essentially, the journalists had been found liable for having made unproved statements about the private life of the judges and Advocate-General who had brought proceedings and for having concluded from these that they had not been impartial in their handling of the case in question.

Distinction between facts and value judgments - judgment complained of related not so much to the allegations reported as to the comments which those had inspired the journalists to make - alleged political sympathies could be regarded as potentially lending credibility to the idea that they were not irrelevant to the decisions being criticised - allusion to past history of father of one of the judges unacceptable but only one of the elements in the case.

Accusations against the judges and Advocate-General amounted to an opinion - comments severely critical but proportionate to the stir and indignation caused by the matters alleged - necessity of interference not shown, except as regards allusion to past history of father of one of the judges.

Conclusion: violation (seven votes to two).

II. Article 6 § 1 of the Convention

Recapitulation of case-law on equality of arms.

In order to deny that there had been any basis for the journalists' argument, the judges and Advocate-General who had brought proceedings had referred to the content of the case they had themselves dealt with and of the judgments delivered by them or with their aid.

Journalists' legitimate concern not to risk compromising their sources of information by lodging themselves the documents whose production they had sought - articles had contained such a wealth of detail that it could not have been reasonably supposed, without further inquiry, that the authors had not had at least some relevant information available to them.

The proceedings brought against the applicants had related solely to whether they had been entitled to express themselves as they had - in order to answer that question, it was sufficient to produce documents likely to prove or disprove truth of applicants' allegations - outright rejection of application for production of documents had put journalists at a substantial disadvantage vis-à-vis the plaintiffs - breach of principle of equality of arms - unnecessary to examine the other complaints raised under Article 6 § 1.

Conclusion: violation (unanimously).

III. Article 50 of the Convention

A. Pecuniary damage
Claim allowed.

B. Non-pecuniary damage
Judgment afforded sufficient just satisfaction.

C. Costs and expenses
Reimbursement.

Conclusion: respondent State to pay specified sums to the applicants (unanimously).

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

32. The applicants alleged that the judgment of the Brussels tribunal de première instance and Court of Appeal against them had entailed a breach of Article 10 of the Convention, which provides:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

33. The judgment against the applicants indisputably amounted to an "interference" with their exercise of their freedom of expression. It was common ground that the interference had been "prescribed by law" and had pursued at least one of the legitimate aims referred to in Article 10 § 2 - the protection of the reputation or rights of others, in this instance the rights of the judges and Advocate-General who brought proceedings.

The Court agrees. It must therefore ascertain whether the interference was "necessary in a democratic society" for achieving that aim.

34. Mr De Haes and Mr Gijsels pointed out that their articles had been written against the background of a public debate, reported by other newspapers, on incest in Flanders and on the way in which the judiciary was dealing with the problem. Before writing them, they had undertaken sufficient research and sought the opinion of several experts, and that had enabled them to base the articles on objective evidence. The only reason why they had not produced that evidence in court was that they had not wished to disclose their sources of information. The refusal of the Brussels courts of first instance and appeal to admit in evidence the documents they had mentioned had accordingly in itself entailed a breach of Article 10.

Their criticisms of the judges and Advocate-General concerned could not, they continued, justify a penalty merely on the ground that the criticisms were at odds with decisions of the Antwerp Court of Appeal. The determination of the "judicial truth" in a court decision did not mean that any other opinion had to be considered wrong when the exercise of the freedom of the press was being reviewed. That, however, was exactly what had happened in the instant case, although the impugned articles had been based on sufficient objective information. In short, the interference complained of had not been necessary in a democratic society.

35. The Commission accepted this argument in substance.

36. The Government maintained that, far from stimulating discussion of the functioning of the system of justice in Belgium, the impugned press articles had contained only personal insults directed at the Antwerp judges and Advocate-General and had therefore not deserved the enhanced protection to which political views were entitled. No immunity could be claimed for opinions expressed by journalists merely on the ground that the accuracy of those opinions could not be verified. In the instant case the authors of the articles had incurred a penalty for having exceeded the limits of acceptable criticism. It would have been quite possible to challenge the way the courts had dealt with Mr X's cases without at the same time making a personal attack on the judges and Advocate-General concerned and accusing them of bias and of showing "a lack of independence". In that connection, it also had to be borne in mind that the duty of discretion laid upon magistrats prevented them from reacting and defending themselves as, for example, politicians did.

37. The Court reiterates that the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest, including those relating to the functioning of the judiciary.

The courts - the guarantors of justice, whose role is fundamental in a State based on the rule of law - must enjoy public confidence. They must accordingly be protected from destructive attacks that are unfounded, especially in view of the fact that judges are subject to a duty of discretion that precludes them from replying to criticism.

In this matter as in others, it is primarily for the national authorities to determine the need for an interference with the exercise of freedom of expression. What they may do in this connection is, however, subject to European supervision embracing both the legislation and the decisions applying it, even where they have been given by an independent court (see, mutatis mutandis, the Prager and Oberschlick v. Austria judgment of 26 April 1995, Series A no. 313, pp. 17-18, §§ 34-35).

38. The Court notes at the outset that the judgment against the applicants was based on all the articles published by them between 26 June and 27 November 1986 on the subject of the X case.

This must be taken into account for the purpose of assessing the scale and necessity of the interference complained of.

39. The articles contain a mass of detailed information about the circumstances in which the decisions on the custody of Mr X's children were taken. That information was based on thorough research into the allegations against Mr X and on the opinions of several experts who were said to have advised the applicants to disclose them in the interests of the children.

Even the Antwerp Court of Appeal considered that Mr X's wife and parents-in-law, who had been prosecuted for criminal libel, "had no good reason to doubt the truth of the allegations" in question (see paragraph 8 above).

That being so, the applicants cannot be accused of having failed in their professional obligations by publishing what they had learned about the case. It is incumbent on the press to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them (see, among other authorities, the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 23, § 31, and the Goodwin v. the United Kingdom judgment of 27 March 1996, Reports of Judgments and Decisions 1996-II, p. 500, § 39). This was particularly true in the instant case in view of the seriousness of the allegations, which concerned both the fate of young children and the functioning of the system of justice in Antwerp. The applicants, moreover, made themselves quite clear in this regard when they wrote in their article of 18 September 1986: "It is not for the press to usurp the role of the judiciary, but in this outrageous case it is impossible and unthinkable that we should remain silent" (see paragraph 21 above).

40. It should be noticed, moreover, that the judges and Advocate-General who brought proceedings did not, either in their writ or in their submissions to the Brussels courts of first instance and appeal, cast doubt on the information published about the fate of the X children, other than on the statement that the case in question had been withdrawn from the Antwerp courts (see paragraphs 22 and 23 above). However, the weight of the latter item in comparison with the impugned articles as a whole and the fact that the applicants corrected it themselves, mean that, on its own, that incident cannot put in doubt the reliability of the journalists' work.

41. In actual fact the judges and Advocate-General complained mainly of the personal attacks to which they considered they had been subjected in the journalists' comments on the events in the custody proceedings in respect of the X children. The applicants, in accusing them of marked bias and cowardice, had, they maintained, made remarks about them that were defamatory and constituted an attack on their honour. The applicants had furthermore accused two of them of pronounced extreme-right-wing sympathies and had thus grossly infringed their right to respect for their private life.

The Brussels courts accepted that contention in substance (see paragraphs 11 and 14 above). The Court of Appeal essentially found the applicants guilty of having made unproved statements about the private life of the judges and Advocate-General who had brought proceedings and of having drawn defamatory conclusions by alleging that they had not been impartial in their handling of the case of the X children. Its judgment says:

"In the instant case the appellants dared to go one step further by maintaining, without a shred of evidence, that they were entitled to infer the alleged bias from the very personalities of the judges and the Advocate-General and thus interfere with private life, which is without any doubt unlawful.

Furthermore, the purpose of the present proceedings is not to decide what ultimately was the objective truth in the case that the original plaintiffs finally determined at the time but merely whether the comments in issue are to be considered defamatory, which is not in the slightest doubt." (see paragraph 14 above)

42. The Court reiterates that a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof (see the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 28, § 46).

43. As regards, firstly, the statements concerning the political sympathies of the judges and Advocate-General who brought proceedings, it must be noted that the Brussels Court of Appeal held:

"Even if the appellants believed that certain ideological views could be ascribed to the respondents (views which they have failed to prove that the respondents held), they cannot in any event be permitted purely and simply to infer from those views - even if they had been proved - that the judges and the Advocate-General were biased and to criticise that bias in public." (see paragraph 14 above)

It is apparent from this that even if the allegations in question had been accurate, the applicants would not have escaped being found liable since that finding related not so much to the allegations reported as to the comments which these inspired the journalists to make.

44. Added to the information which the applicants had been able to gather about Mr X's behaviour towards his children, information which was in itself capable of justifying the criticism of the decisions taken by or with the aid of the judges and Advocate-General concerned, the facts which they believed they were in a position to allege concerning those persons' political sympathies could be regarded as potentially lending credibility to the idea that those sympathies were not irrelevant to the decisions in question.

45. One of the allusions to the alleged political sympathies was inadmissible - the one concerning the past history of the father of one of the judges criticised (see paragraph 19 above). It is unacceptable that someone should be exposed to opprobrium because of matters concerning a member of his family. A penalty was justifiable on account of that allusion by itself.

It was, however, only one of the elements in this case. The applicants were convicted for the totality of the accusations of bias they made against the three judges and the Advocate-General in question.

46. In this connection, the Court reiterates that freedom of expression is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb the State or any section of the community. In addition, journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see, mutatis mutandis, the Prager and Oberschlick judgment cited above, p. 19, § 38).

47. Looked at against the background of the case, the accusations in question amount to an opinion, whose truth, by definition, is not susceptible of proof. Such an opinion may, however, be excessive, in particular in the absence of any factual basis, but it was not so in this instance; in that respect the present case differs from the Prager and Oberschlick case (see the judgment cited above, p. 18, § 37).

48. Although Mr De Haes and Mr Gijsels' comments were without doubt severely critical, they nevertheless appear proportionate to the stir and indignation caused by the matters alleged in their articles. As to the journalists' polemical and even aggressive tone, which the Court should not be taken to approve, it must be remembered that Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see, as the most recent authority, the Jersild judgment cited above, p. 23, § 31).

49. In conclusion, the Court considers that, regard being had to the seriousness of the circumstances of the case and of the issues at stake, the necessity of the interference with the exercise of the applicants' freedom of expression has not been shown, except as regards the allusion to the past history of the father of one of the judges in question (see paragraph 45 above).

There has therefore been a breach of Article 10.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

50. The applicants also complained of a breach of Article 6 § 1, which provides:

"In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an ... impartial tribunal..."

They firstly criticised the Brussels tribunal de première instance and Court of Appeal for having refused to admit in evidence the documents referred to in the impugned articles or hear at least some of their witnesses (see paragraphs 10 and 12 above). This, they said, had resulted in a basic inequality of arms between, on the one hand, the judges and the Advocate-General, who were familiar with the file, and, on the other, the journalists, who with only limited sources had had to reconstruct the truth.

Further, in arguing against Mr De Haes and Mr Gijsels on the basis of their article of 14 October 1988 (see paragraph 24 above), the Brussels Court of Appeal had ruled on matters not before it as the judges criticised in that article were not parties to the case before the Court of Appeal and their decision had not been mentioned in the original writ. The Court of Appeal had thus taken as a basis a fact that had not been the subject of adversarial argument and had thereby departed from due process.

Lastly, the derogatory terms used in the Brussels Court of Appeal's judgment showed that there had been a lack of subjective impartiality.

51. The Commission shared, in substance, the applicants' opinion as to the effects of the alleged breaches on equality of arms and due process. It did not consider it necessary to express a view on the Brussels Court of Appeal's impartiality.

52. The Government submitted that the evidence which the journalists proposed to submit had been calculated to call in question the decisions taken in the lawsuit between Mr X and his wife, which was res judicata. The Brussels courts had therefore been entitled to reject it, seeing that the "judicial truth" was sufficiently clear from the judgments delivered in Mr X's cases. In short, production of the evidence in question had been shown not to be decisive in the instant case, and the Court of Cassation had confirmed that.

As to the Court of Appeal's reference to the press article of 14 October 1988, it was a superfluous reason, as the judgment against the applicants rested primarily on other grounds. The reference to that article in the submissions of the judges and Advocate-General who had brought proceedings was not intended to amend their claim but simply to highlight Mr De Haes and Mr Gijsels' relentless hostility.

53. The Court reiterates that the principle of equality of arms - a component of the broader concept of a fair trial - requires that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among other authorities, the Ankerl v. Switzerland judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, pp. 1565-1566, § 38).

54. It notes that in their submissions to the Brussels courts of first instance and appeal the judges and Advocate-General concerned maintained, in substance and inter alia, that the criticisms made of them in Humo were not supported by the facts of the case and certainly not by the four judgments that had been delivered by them or with their aid in that case, which were otherwise uncontradicted. They thus referred, in order to deny that there was any basis for the journalists' argument, to the content of the case they had themselves dealt with and of the relevant judgments.

Coming as it did from the judges and Advocate-General who had handled the case, that statement had such credibility that it could hardly be seriously challenged in the courts if the defendants could not adduce at least some relevant documentary or witness evidence to that end.

55. In this respect, the Court does not share the Brussels Court of Appeal's opinion that the request for production of documents demonstrated the lack of care with which Mr De Haes and Mr Gijsels had written their articles. It considers that the journalists' concern not to risk compromising their sources of information by lodging the documents in question themselves was legitimate (see, mutatis mutandis, the Goodwin v. the United Kingdom judgment cited above, Reports 1996-..., p. .., § 45). Furthermore, their articles contained such a wealth of detail about the fate of the X children and the findings of the medical examinations they had undergone that it could not reasonably be supposed, without further inquiry, that the authors had not had at least some relevant information available to them.

56. It should also be noted that the journalists' argument could hardly be regarded as wholly unfounded, since even before the judges and the Advocate-General brought proceedings against the applicants, the Antwerp tribunal de première instance and Court of Appeal had held that the defendants in the libel action Mr X had brought against his wife and parents-in-law had not had any good reason to doubt the truth of their allegations (see paragraph 8 above).

57. At all events, the proceedings brought against the applicants by the judges and the Advocate-General did not relate to the merits of the judgment in the X case but solely to the question whether in the circumstances the applicants had been entitled to express themselves as they had. It was not necessary in order to answer that question to produce the whole file of the proceedings concerning Mr X but only documents which were likely to prove or disprove the truth of the applicants' allegations.

58. It was in those terms that Mr De Haes and Mr Gijsels made their application. They asked the Brussels tribunal de première instance and Court of Appeal at least to study the opinion of the three professors whose examinations had prompted the applicants to write their articles (see paragraph 10 above). The outright rejection of their application put the journalists at a substantial disadvantage vis-à-vis the plaintiffs. There was therefore a breach of the principle of equality of arms.

59. That finding alone constitutes a breach of Article 6 § 1. The Court consequently considers it unnecessary to examine the other complaints raised by the applicants under that provision.

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