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Стр. 2
It has not been proved, however, that the defendants acted in
bad faith, that is to say with malicious intent, and they had no
good reason to doubt the truth of the allegations.
Indeed, it was not only the defendants who were convinced that
the allegations were true but also eminent academics, including
Professor [MA] ... and Dr [MB], a child psychiatrist, both of whom
were appointed as experts by the investigating judge, Mr [YE]...
At the Criminal Court hearing on 6 September 1985 ... the
expert [MB] confirmed on oath the content of his report.
That expert, who can hardly be said to lack experience in the
field of child psychology and who studied all the evidence in the
criminal case file, concluded on 28 August 1984 that the
children's statements were credible and put forward several
arguments in support of that view."
On 20 January 1987 the Court of Cassation dismissed an appeal
on points of law brought by Mr X.
1. In the Brussels tribunal de {premiere} <*> instance
9. On 17 February 1987 three judges and an advocate-general of
the Antwerp Court of Appeal, Mrs [YA], Mr [YB], Mr [YC] and Mr
[YD], instituted proceedings against Mr De Haes and Mr Gijsels and
against Humo's editor, publisher, statutory representative,
printer and distributor in the Brussels tribunal de {premiere}
instance (court of first instance). On the basis of Articles 1382
and 1383 of the Civil Code (see paragraph 26 below), they sought
compensation for the damage caused by the statements made in the
articles in question, statements that were described as very
defamatory (zeer lasterlijk en eerrovend). They asked the court to
order the defendants to pay nominal damages of one franc each in
respect of non-pecuniary damage; to order them to publish its
judgment in Humo; and to give the plaintiffs leave to have the
judgment published in six daily newspapers at the defendants'
expense.
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<*> Здесь и далее по тексту слова на национальном языке
набраны латинским шрифтом и выделены фигурными скобками.
10. In order to safeguard the principle of equality of arms
and due process, the defendants asked the court, in their
additional submissions of 20 May 1988, to request Crown Counsel to
produce the documents mentioned in the disputed articles or at
least to study the opinion of Professors [MA], [MC] and [MD] on
the medical condition of Mr X's children, which had been filed
with the judicial authorities. They gave the following grounds for
their application:
"The issue arises whether the defendants, given the factual
evidence available to them, were entitled, within the limits of
press freedom, to publish the impugned criticisms of the
functioning of a judicial body.
...
In the disputed press articles the defendants relied, in
particular, on various medical reports, statements by the parties
and reports by a bailiff.
...
Nor can it be denied that Mr X's libel action against his wife
was dismissed.
Now that it must be determined whether the defendants were
entitled to publish the impugned press articles on the basis of
the information available to them, it is essential for the proper
conduct of the case that Crown Counsel, who is acting in the case
under Article 764-4 of the Judicial Code, should produce to the
Court the documents cited as sources in the series of articles.
These documents are to be found in various court files.
Any argument as to the lawfulness of the press criticism
presupposes at the least that the Court should be able to study
the opinion of Professors [MA], [MC] and [MD] on the treatment of
X's children, which has been sent to the judicial authorities.
The opinion of those eminent professors of medicine was the
decisive factor which prompted Humo to publish the impugned series
of articles in such a forceful manner.
The views maintained by the defendants and the language and
descriptions they used cannot be assessed in the abstract but must
be assessed in the light of these data, which go to the substance
of the case.
Thus the European Court held in the Lingens case (judgment of
the ECHR of 8 July 1986, Series A no. 103) that the issue of the
limits of the exercise of freedom of expression had to be examined
against the whole of the background:
"It must look at them in the light of the case as a whole,
including the articles held against the applicant and the context
in which they were written" (paragraph 40 of the judgment).
...
For these reasons ... may it please the Court ... to hold that
it is necessary, for the proper conduct of the proceedings, in
particular in the light of the principle of equality of arms and
due process, to request Crown Counsel to produce the documents
cited in the disputed articles that appeared in the magazine Humo,
or at least to study the opinion of Professors [MA], [MC] and [MD]
on the medical condition of X's children, which has been filed
with the judicial authorities."
11. On 29 September 1988 the court ordered Mr De Haes and
Mr Gijsels to pay each plaintiff one franc in respect of
non-pecuniary damage and to publish the whole of its judgment in
Humo; it also gave the plaintiffs leave to have the judgment
published at the applicants' expense in six daily newspapers.
Lastly, it declared the action inadmissible in so far as it was
directed against the other defendants.
The court held, inter alia:
"The plaintiffs are obviously not challenging freedom of
expression and of the press as guaranteed in Articles 14 and 18 of
the Constitution and Article 10 para. 1 (art. 10-1) of the
[European Convention on Human Rights]. Equally, the defendants
cannot dispute that this freedom is not unlimited and that there
are certain bounds which cannot be overstepped. As has already
been set out ..., Article 10 para. 2 of the Convention (art. 10-2)
is no obstacle to bringing a civil action under Article 1382 of
the Civil Code where the press has acted wrongfully.
Article 10 para. 2 of the Convention (art. 10-2) expressly
provides that freedom of the press "may be subject to such ...
restrictions ... as are prescribed by law and are necessary ...
for the protection of the reputation or rights of others ... or
for maintaining the authority and impartiality of the judiciary".
The need to protect the plaintiffs' private life (Article 8
para. 1 of the Convention) (art. 8-1), and more specifically their
honour and reputation, means, in the case of a press article, that
the press must (1) strive to respect the truth; (2) not be
gratuitously offensive; and (3) respect the privacy of the
individual. These criteria are taken up in the "Declaration of the
Rights and Obligations of Journalists" drawn up by the
International Federation of Journalists.
In the articles in question the defendants make frequent
references to the fact that the plaintiffs had allegedly erred in
their judgment and had shown bias. The defendants accepted as
true, without more, the statement made by Mr X's former wife and
her expert adviser (Professor [MA]), although it was clearly shown
in the reasons set out in the four judgments given in the case why
that statement was not reliable. More seriously still, in the
articles in question the defendants expressed the opinion that the
plaintiffs had to be regarded as biased, an opinion derived from
the fact that they were said to belong to the influential circle
of acquaintances of the notary and his father, that one of them
was the son of a gendarmerie general who in 1948 had been
convicted of collaboration, that they allegedly had an
extreme-right-wing background and that they were friendly with
each other.
The plaintiffs' conduct was vigorously attacked by the
defendants in extremely virulent terms, and the defendants clearly
intended to present the plaintiffs in an unfavourable light and
expose them to public opprobrium. The defendants sought to give
their readers the impression that the plaintiffs were siding with
the children's father and that their judgments were inspired by
certain ideological views. To this end, the defendants needlessly
reminded their readers of the wartime activities of the father of
one of the plaintiffs.
The plaintiffs rightly observed that they cannot simply be put
on a par with members of the legislature or of the executive.
Politicians were elected and the public had to trust them.
Politicians could, moreover, use the media to defend themselves
against any attacks. Magistrats [a term which in Belgian law
covers both judges and members of Crown Counsel offices], on the
other hand, were expected to discharge their duties wholly
independently and dispassionately. Their duty of discretion meant
that they could not defend themselves in the same way as
politicians.
That being so, the defendants committed a fault in attacking
the plaintiffs' honour and reputation by means of irresponsible
accusations and offensive insinuations. The orders sought by the
plaintiffs will provide appropriate redress for the non-pecuniary
damage they have sustained ..."
2. In the Brussels Court of Appeal
12. The applicants appealed against that judgment. In their
submissions of 10 November 1989 they pointed out, among other
things, that the sole purpose of the articles in question had been
to criticise the functioning of the judicial system following the
proceedings conducted by the respondent judges and
Advocate-General concerning possible abuse and incestuous acts
suffered by the children. At no time had they attacked the
respondents' private life without reference to their part in the
impugned decision. Mr De Haes and Mr Gijsels repeated their offer
to prove the facts described in the articles and asked the court
to request Antwerp Principal Crown Counsel to produce the
documents they had mentioned, at least those emanating from
Professors [MA], [MC] and [MD] and those from the file on X's
divorce, in particular certain reports and a letter to Principal
Crown Counsel from Professor [MA].
13. The respondents sought to have the judgment of the court
below upheld. In their submission, the applicants' conduct had
been all the more reprehensible and offensive as in an article
that had appeared in Humo on 14 October 1988 (see paragraph 24
below) the applicants had not only maintained their accusations
that the three judges and the Advocate-General were biased but
also criticised by name, in humiliating terms, the judges who had
given the judgment of 29 September 1988 (see paragraph 11 above).
14. On 5 February 1990 the Brussels Court of Appeal affirmed
that judgment, holding inter alia:
"..., as submitted by the prosecution, no action must or can
be taken on the appellants' application to the Court to "request
Antwerp Principal Crown Counsel to produce to the Court the
documents cited in the disputed articles that appeared in the
weekly magazine Humo", and in particular - under Article 877 of
the Judicial Code - "all the documents from the X file".
As already indicated, it is not the Court's task - nor is it
within its jurisdiction - to consider the case already determined
by the Antwerp Court of Appeal, on appeal from the Youth Court. It
follows that the possible course - which is purely discretionary
(Court of Cassation, 2 June 1977, Pas[icrisie] 1977, I, 1012) -
provided in Article 877 of the Judicial Code of ordering that the
documents in question should be added to the file of the present
case would serve no useful purpose whatever.
The appellants are accordingly bound to admit that they
commented on a court case and besmirched the honour of magistrats
without being in possession of all the necessary information, and
this makes the complete irresponsibility of their malicious
attacks even more flagrant.
They further aggravate their position by offering "to prove
the facts referred to in the relevant articles by any legal means,
including an examination of witnesses, before the case is
decided" - an offer which not only must be rejected as being out
of time but also clearly indicates - and this is the main point to
be considered here - with what lack of care and information the
articles in question were written and their accusations made,
before the appellants even had sufficient evidence that they were
true.
In the present case the offer in question could not in any way
support the appellants' case; on the contrary, it clearly shows
that the original plaintiffs' arguments were well-founded and it
also lacks the requisite precision.
It is not sufficient for the appellants to offer - as they
nevertheless do - to prove that everything they have written in
the past concerning "the case" is the truth; it has to be
specified minutely, point by point, what precise and clearly
described fact - "precise and relevant" in the words of
Article 915 of the Judicial Code - is being offered as evidence.
This is in order to make it possible for the opposing side to
adduce rebutting evidence and to enable the Court to assess the
relevance and importance of the facts adduced; the appellants did
not even take the trouble to comply with this requirement.
Furthermore, the Court already has before it all the
information necessary to enable it to decide, in full knowledge of
the facts, whether there has really been defamation.
...
As regards the merits of the case, the court below, for ...
relevant reasons that have not been refuted and with which this
Court agrees, held that the original claim against the appellants
was well-founded because the appellants had undeniably committed a
gross fault in casting serious slurs on the honour and reputation
of the original plaintiffs by means of unjustified accusations and
offensive insinuations.
Freedom of expression and of the press as guaranteed in
Articles 14 and 18 of the Constitution and Article 10 para. 1
(art. 10-1) of the [European Convention on Human Rights] is not
unlimited; certain bounds must not be overstepped and, as has
already been pointed out, it is even possible, under Articles 1382
and 1383 of the Civil Code, to bring an action for damages where
the press has acted wrongfully.
Moreover, in relation to the tort in question, Articles 443 et
seq. of the Criminal Code also refer to acts which may injure a
person's honour or expose a person to public contempt. Defamation
of public authorities is punishable in the same way as defamation
of individuals. Such defamation was precisely what the original
plaintiffs in this case complained of and they undeniably
constitute unlawful "acts", as referred to in Article 1382 of the
Civil Code, "that cause damage to another".
There is no basis for the appellants' contention that
"Article 443 of the Criminal Code is the sole provision in Belgian
law which authorises the courts to restrict freedom to hold
opinions with a view to protecting the honour and reputation of
others; neither Article 764, 4, of the Judicial Code nor
Article 1382 of the Civil Code does so". According to that
argument, the press, and it alone, is not subject to the ordinary,
general rule in Articles 1382 and 1383 of the Civil Code, which
impose a duty on "everyone" to act lawfully and make everyone
responsible for any damage caused through his own "act", "failure
to act" or "negligence".
Under Article 10 para. 2 of the Convention (art. 10-2),
freedom of the press may be subject to such restrictions as are
prescribed by law and are necessary, as in the instant case, for
the protection of the reputation or rights of others or for
maintaining the authority and impartiality of the judiciary.
Pursuant to Article 8 para. 1 (art. 8-1) of the Convention for
the Protection of Human Rights and Fundamental Freedoms, the
guarantee of respect for private life requires that press articles
should be truthful, must not be gratuitously offensive and must
respect the privacy of the individual, criteria which were taken
up in the "Declaration of Rights and Obligations of Journalists"
drawn up by the International Federation of Journalists and
approved by the journalists of daily newspapers in different
countries of the European Community in Munich on 24 and 25
November 1971, where Belgium was represented by the Professional
Union of the Belgian Press.
The appellants cannot in any way rely on Article 19 of the UN
Covenant or of the Universal Declaration, since these similarly
make no reference to unlimited freedom of expression.
Furthermore, the appellants did not explain, and it cannot be
discerned, why the generally applicable concept of fault,
expressly provided in Articles 1382 et seq. of the Civil Code,
should be incompatible with Articles 8 para. 1 and 10 para. 2 of
the Convention (art. 8-1, art. 10-2) (whose precedence is not
being called into question here) in relation to restrictions on
freedom prescribed by law and the protection of private life,
which is at issue here; nor why only journalists should not be
subject to those provisions.
In this connection, the Court wholly agrees with the relevant
reasons set out in the judgment of the court below, which it
adopts in their entirety.
...
Admittedly, the European Court of Human Rights held in the
Bruno Kreisky case that the Austrian journalist Lingens, who was
concerned in that case, had attacked Mr Kreisky exclusively as a
politician and consequently had not violated his right to respect
for private life. In the instant case, on the contrary, that right
was well and truly - indeed grossly - challenged by the
appellants.
The words used and the insinuations and imputations made in
the articles and passages in question are extremely virulent and
dishonouring, since the original plaintiffs, referred to by name,
were accused of having been biased as senior magistrats, and it
was gratuitously insinuated that they had links with the VMO
[Vlaamse Militanten Orde] and that they came from an
extreme-right-wing background and belonged to the circle of
friends of the children's father - who was also, in the
appellants' opinion, extremely right-wing - so that the judicial
decisions made by the original plaintiffs in respect of the
children's custody were only to be expected - all this without any
serious and objective evidence whatever being adduced or existing
to show that the accusations against these magistrats had any
factual basis.
...
The appellants manifestly intended to give their readers the
impression that the judges and Advocate-General concerned had
sided with one of the parties to the case and, furthermore, that
their judgments were inspired by certain ideological views.
Additionally, they needlessly and in a quite uncalled-for
manner reminded their readers of the wartime activities of the
second respondent's late father, which the second respondent had
absolutely nothing to do with and which - despite the appellants'
opinion to the contrary - belong exclusively to the protected
sphere of private life.
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.
In none of these suspicions or pieces of gossip directed
against the judges and Advocate-General who brought the original
action is there a shred of truth, and the applicants even lied in
their article of 6 November 1986 (p. 19) when they stated that the
case decided by those judges had been withdrawn from them by the
Court of Cassation, whereas they have now had to admit in their
additional pleadings (p. 6) that "Principal Crown Counsel at the
Court of Cassation refused to order that the case should be
transferred to another court (under Article 651 of the Judicial
Code)".
On 6 November 1986 they announced: "Last Thursday the Wim and
Jan case took a dramatic legal turn. On an application by
Principal Crown Counsel ..., the Court of Cassation withdrew the X
case from the Antwerp court and transferred it to the Ghent
tribunal [de {premiere} instance] in the hope that the Ghent
magistrats would adopt a less biased approach ..."
Admittedly, they went back on this point on 27 November,
writing: "... Our prediction of a fortnight ago that the
agonisingly slow progress being made in the Wim and Jan case was
likely to leave the case stranded in the Antwerp courts has come
true. In the teeth of all the evidence, the Court of Cassation has
held that the Antwerp judiciary cannot be accused of any bias in
this incest case and that the whole case can therefore continue to
be dealt with in Antwerp ..."
False reports of this kind, however, caused the original
plaintiffs irreparable damage, since to be accused of bias is the
worst possible insult that can be levelled at a magistrat.
The exceptional virulence of the appellants' irresponsible
criticisms can probably be explained - but not excused - by
certain political quarrels (which, indeed, do not serve the
interests of justice), as was acknowledged by the appellants
themselves in the 12 February 1987 issue of Humo: "... If any
further proof were needed of behind-the-scenes intrigues in the
case of Mr X and of the fact that political allegiances are
definitely playing a role, this (premature?) leak to the press is
one of the most persuasive pieces of evidence ..."
Because of the unacceptable way in which they were attacked in
the impugned articles, the original plaintiffs were shown in a
particularly unpleasant light and their honour and reputation were
seriously undermined by insulting statements which without any
doubt went far beyond what the appellants described as "their
ability to take flak".
The appellants in fact nevertheless consider their aggressive
style and offensive disparagements justifiable in a little paper
like Humo, which they describe as "clearly critical and
anti-bourgeois".
However, although, when ruling on the defamatory nature of
contributions published in a magazine of this kind with a clear
critical stance towards bourgeois society, one must not apply the
same criteria as when ruling on libellous articles in an
"ordinary" newspaper, it nevertheless remains true that even in an
avowedly critical magazine certain standards must be respected
when criticisms are made, certain bounds must not be overstepped
and it is not permissible to publish false information and
unproved accusations with the clear aim of humiliating and
wounding particular persons, as to do so undeniably amounts to an
abuse of press freedom.
While people are certainly entitled to be
"anti-bourgeois" (?), this does not authorise them to pour out
pure gossip to the public - however limited their readership - by
writing, for example: "The Advocate-General [YD] has since very
properly been removed from this case for having exceeded his
authority" (Humo, 17 July 1986, pp. 6 and 7).
Nevertheless, although the appellants have now, in their
additional submissions, backed down and, saying that their earlier
statement that the Advocate-General had been "removed" had been a
"personal interpretation" of the "fact that at a given point he
had ceased to sit", such an "interpretation" should impel these
"journalists" - however particularly "personal" their style may
be - to practise their profession in future in a less unscrupulous
manner.
In the 14 October 1988 issue of Humo (p. 15) - that is to say
during the present proceedings and although they had announced in
the same short piece that they would be appealing - the appellants
made their position considerably worse still by again accusing the
original plaintiffs of bias and criticising, in similarly
degrading terms, the judges who delivered the judgment at first
instance, who were mentioned by name.
This article stated, among other things: "... The
Vice-President, [YF], and the other judges, [YG] and [YH], dealt
with the case carelessly (sic) ... We wonder whether their
Lordships actually read Humo's submissions ... But at no time has
Humo ever brought up anything to do with the judges' private lives
(sic) ... Clearly, the Brussels judges [YF], [YG] and [YH] did not
manage to give judgment with the necessary detachment and
independence on their fellow judges of the Antwerp Court of
Appeal. They are thus adhering to the line of biased judgments
..."
This could be interpreted as a particularly misplaced and
culpable attempt to influence [the members of this Court],
especially as the appellants predict, through counsel in their
pleading (p. 27), that no newspaper will be prepared to publish
the present judgment, a step that has in any case not been sought.
As regards the question of the case having been dealt with
"carelessly", the appellants have still not grasped that usually -
and rightly - the courts must attach greater weight - as they did
in the instant case - to the findings of expert witnesses that the
courts themselves have appointed and who have no connection with
the litigants and whose objectivity therefore cannot be called in
question by either of the parties rather than - as the appellants
do - to the parties' own experts, whose investigations,
assessments and findings, however, form the main or even sole
evidence on which the appellants believe they are entitled to rely
to make their attacks.
As is unfortunately only too often to be found, notably in
court cases, even excellent university professors and
specialists - in the instant case no fewer than three on each
side - disagree among themselves and, particularly in the fields
of psychology and psychiatry, hold diametrically opposed views -
of which each claims to be 100% certain; this should prompt
everyone - particularly journalists - to refrain from making
accusations of bias - that is to say the most serious of all -
against judges who have to make the final decision on issues as
thorny as the custody of children, where strong passions are
always aroused, and who must necessarily prefer one of the
different versions put forward by the parties to the proceedings.
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.
Although the appellants refused to acknowledge the fact,
magistrats cannot be unreservedly put on the same footing as
politicians, who can always adequately and promptly defend
themselves, orally or in writing, against reprehensible personal
attacks and are therefore less vulnerable than a magistrat, who is
neither able nor entitled to do likewise.
The status of a magistrat is radically different from that of
all other holders of public office and of politicians and is in no
way based on privileges or traditions but on the fact that it is
necessary for the administration of justice, which entails
particular tasks and responsibilities (see the speech delivered by
F. Dumon, formerly Principal Crown Counsel at the Court of
Cassation, at the opening session of the new judicial term on
1 September 1981, "Le pouvoir judiciaire, inconnu et {meconnu}",
p. 64).
Given the discretion incumbent upon them by virtue of their
office, magistrats cannot defend themselves in the same way as,
for example, politicians, if certain newspapers, apparently hungry
for lucrative sensational stories, attack them and drag them
through the mud.
Purely political cases are precisely what most of the case-law
and legal opinion cited by the appellants in this connection
relates to, however, and it is therefore not relevant to the
instant case.
Unlike a politician, a judge cannot discuss in public a case
pending before him with a view to justifying his conduct, so that
[the original plaintiffs'] failure to exercise their right of
reply certainly cannot be held against them by the appellants (see
Ganshof van der Meersch, formerly Principal Crown Counsel at the
Court of Cassation, {"Considerations sur l'art de dire le droit"},
esp. p. 20); this duty of discretion has again recently been
referred to by the Court of Cassation (Court of Cassation, 14 May
1987, [Journal des Tribunaux] 1988, p. 58)."
3. In the Court of Cassation
15. Mr De Haes and Mr Gijsels applied to the Court of
Cassation, which dismissed their appeal on points of law on
13 September 1991 (Pasicrisie 1992, I, p. 41).
16. In their first ground of appeal, they alleged a violation
of the right to an independent and impartial tribunal, relying, in
particular, on Article 6 para. 1 of the Convention (art. 6-1). In
their submission, certain passages of the Court of Appeal's
judgment raised legitimate doubts as to the impartiality of those
who had written it. This was true, for instance, of the words "a
little paper like Humo", the word "sic" in the extract from the
article of 14 October 1988 (see paragraph 24 below) concerning the
judgment of 29 September 1988 (see paragraph 11 above), a number
of punctuation marks, such as the question mark after the term
"anti-bourgeois", and the statement that the article of 14 October
1988 was "a particularly misplaced and culpable attempt to
influence [the members of the Court of Appeal]". The applicants
also complained that due process had been disregarded in that, as
they alleged, the Court of Appeal had referred to the article of
14 October 1988 of its own motion without their having been able
to defend themselves on that point.
The Court of Cassation rejected this ground, considering that
"it could not be inferred from the mere fact that in their
decision the appellate judges had shown that they preferred the
arguments of one of the parties and disapproved of those of the
other parties that there had been an infringement of the statutory
provision and general principles relied on in this limb of the
ground of appeal". As to the article that had appeared in Humo on
14 October 1988, the appellate judges had not referred to it of
their own motion, since the respondents to the appeal on points of
law had mentioned it in their submissions to the Court of Appeal.
17. In their second ground of appeal Mr De Haes and Mr Gijsels
complained of a violation of Articles 8 and 10 of the Convention
(art. 8, art. 10). In finding against them on the basis of the
general concept of fault in Articles 1382 and 1383 of the Civil
Code, the Court of Appeal had, they said, made their freedom of
expression subject to formalities, conditions, restrictions and
penalties not prescribed by "law" within the meaning of Article 10
para. 2 of the Convention (art. 10-2) (first limb). Furthermore,
by holding that press articles must strive to respect the truth,
must not be gratuitously offensive and must respect the privacy of
the individual, the Court of Appeal had created restrictions which
went beyond what was strictly necessary in a democratic society;
public discussion of the functioning of the judicial system was of
greater importance than the interest of magistrats in protecting
themselves from criticism (second limb). Lastly, the evidence in
the file did not justify the Court of Appeal's finding that the
articles in dispute had disregarded the aforementioned
restrictions (third limb).
The Court of Cassation dismissed this ground of appeal,
holding in particular:
"As to the first limb:
In reaching the conclusion that the appellants are liable for
the consequences of their press articles, the Court of Appeal
based its judgment not only on the finding - partly cited in this
limb of the ground of appeal - that the appellants had committed
an unlawful act and that they "did not explain, and it cannot be
discerned, why the generally applicable concept of fault,
expressly provided in Articles 1382 et seq. of the Civil Code,
should be incompatible with Articles 8 para. 1 and 10 para. 2 of
the Convention (art. 8-1, art. 10-2)" but also on the undisputed
finding, rightly raised by the respondents, that the appellants
had been guilty of defamation as defined in Articles 443 et seq.
of the Criminal Code.
The Court of Appeal's judgment sets out reasons (not
challenged in this limb of the ground of appeal) for the finding
that the appellants had committed a fault within the meaning of
Article 1382 of the Civil Code.
This limb cannot justify quashing the judgment of the court
below and is accordingly inadmissible, as argued by the
respondents.
As to the second limb:
Under Article 10 (art. 10) cited above, the exercise of the
right to freedom of expression may be subject to the restrictions
or penalties necessary in a democratic society for the protection
of the reputation or rights of others or for maintaining the
authority and impartiality of the judiciary.
When asked to punish a given abuse of freedom of expression
affecting members of the judiciary, the courts must endeavour to
maintain a fair balance between the requirements of freedom of
expression and the restrictions applicable under Article 10
para. 2 (art. 10-2) of the aforementioned Convention.
In the instant case the Court of Appeal based its decision
that the appellants had abused the freedom of expression secured
in Article 10 para. 1 (art. 10-1) of the Convention for the
Protection of Human Rights and Fundamental Freedoms not only on
the need to protect the respondents' private life but also on the
unchallenged grounds that the accusations made had not been
proved, the criticism had been directed against named judges, the
matters relied on were irrelevant to the decisions that had been
taken and the accusations had been inspired by a desire to harm
the respondents personally and damage their reputation.
In holding, as appears from the text of its judgment, that,
"pursuant to Article 8 para. 1 (art. 8-1) of the Convention for
the Protection of Human Rights and Fundamental Freedoms, the
guarantee of respect for private life requires that press articles
should be truthful, must not be gratuitously offensive and must
respect the privacy of the individual", the Court of Appeal took
the view that a balance had to be sought between the interests of
a free press and private interests; it did not thereby decide that
the general interest of a public discussion of the functioning of
the judiciary was less important than private interests, nor did
it add any restriction to the exceptions exhaustively set out in
Article 10 para. 2 (art. 10-2).
This limb of the ground of appeal cannot be allowed.
As to the third limb:
Regard being had to the foregoing considerations, the third
limb lacks any basis in fact."
18. In their third ground of appeal the applicants complained
of the Brussels Court of Appeal's refusal to take into
consideration all the evidence that had been before the Antwerp
Court of Appeal and to allow them to prove by any means the truth
of their assertions. In their submission, Articles 6 and 10 of the
Convention (art. 6, art. 10) had thereby been contravened.
The Court of Cassation held:
"The Court of Appeal decided not to grant the appellants'
application for leave to prove the truth of their accusations; in
particular, it refused to order that the files of the cases which
had given rise to the decisions criticised in the press should be
admitted in evidence.
It based its decision not only on the grounds cited in the
ground of appeal but also on separate, undisputed findings: that
the appellants had admitted besmirching the reputation of
magistrats without being in possession of all the necessary
information, which in itself constituted a fault; that the offer
to bring evidence was out of time and ineffective; and that the
Court of Appeal had before it all the information necessary to
enable it to decide, in full knowledge of the facts, whether there
had really been defamation.
This ground of appeal cannot justify quashing the judgment of
the court below and is accordingly inadmissible."
B. The articles in issue
19. The judgments against Mr De Haes and Mr Gijsels related to
five articles that appeared in Humo (see paragraph 7 above). The
first of these, published on 26 June 1986, included the following:
"...
Today, Thursday 26 June, the courts are due to rule in the
long-running case of a well-known Antwerp notary who has been
sexually abusing his two young sons. The notary himself comes from
a distinguished Flemish family with close links to the most select
financial circles in the country. All the indications are that the
reputation of the father and grandfather count for more than the
physical and mental health of the children. Up to now, the court
has rejected, without batting an eyelid, all medical and
psychiatric reports unfavourable to the notary.
How can this be? Louis De Lentdecker has already written about
this case in De Standaard, albeit in veiled terms. However, he was
promptly taken to task by the Antwerp Advocate-General on the
ground that his report had "seriously compromised" the children's
father. Yet De Lentdecker had mentioned absolutely no names. For
our part, we will also refrain from mentioning the father's name
or those of the two under-age children (for convenience, we will
call the three-year-old boy "Wim" and the six-year-old "Jan" and
give the family's surname as "X"). For the rest, we have every
intention of mentioning the other names involved as this is not
the first time that the Antwerp courts have shown a lack of
independence and given extremely odd judgments.
This report is not for those of a sensitive disposition. We
put the facts to a psychologist working in a centre for
psychological, medical and social therapy, a magistrat, a
paediatrician and two lawyers, none of whom has anything to do
with the case. Each of them, independently of the others, advised
us to report on the case in the interests of the children.
...
After Jan was born, things started to go wrong within the
family. The husband was having affairs and even had another home.
Divorce proceedings are filed in October 1983. The mother is
awarded interim custody of the children; the father is given
fortnightly access. At the end of 1983 the children return home
after spending the Christmas holidays with their father; their
mother finds them in a state of total exhaustion. Her
paediatrician, Dr [ME], diagnoses them as having been overtaxed.
While playing, the elder boy tells a story from which it is
apparent that his father has raped him. Dr [ME] is notified and
advises the mother to consult a forensic medical examiner.
The same thing happens on 8 January 1984.
Following her paediatrician's advice, the mother tries to
consult a forensic medical examiner, but he advises her to see a
general practitioner first. There is no answer when she rings
Dr [ME], so she turns to the duty doctor, [MF]. He finds that the
elder boy has an "irritation of the anus" and refers the mother to
a paediatrician in Malines, Dr [MG]. He in turn observes the
following injuries to the elder boy: "slight anal fissure,
pronounced redness around the anus, rectal smear showing presence
of sperm". That evening, at his request, Dr [ME], the
paediatrician, re-examines the children and, given the seriousness
of the situation, refers them to Dr [MH], of the Mental Health
Centre.
On the basis of these medical reports, amongst other things,
Judge [YI] of the Antwerp tribunal de {premiere} instance, acting
on an urgent application, decides on 29 January 1984 to suspend
the father's right of access.
However, on 31 January the Third Division of the Antwerp Court
of Appeal restores the notary's right of access, although the
children are not to spend the night at his home and access has to
take place in the presence of the grandparents.
The nightmare begins, not only for the children, but also for
their mother.
...
On 4 February 1984, for the first time in four weeks, the
notary has an access visit. At 10 o'clock in the morning he picks
up the children in Malines, returning them to their mother at
around 6.30 p.m. In a report the mother, shocked and bewildered,
says: "State of the children: distraught. Wim (aged 3) lies down
on the ground and sobs. Jan (aged 6) sits down apathetically on a
chair. He has visible clinical injuries: a very painful mouth,
which he cannot close, severe swelling of the lower lip and
problems with his eyes; four of his upper teeth come out at once;
he also has a swelling of the neck below the left ear, a reddish
irritation of the cheeks and scratches on the left cheek." Her
lawyer urges her to report the matter to the police at all costs,
but she thinks there is no longer any point. In her statement she
writes, despairingly, "I did not want to, seeing that the
gendarmerie were so sympathetic to the family and that I had
already discovered from experience that the gendarmes did not take
me seriously where the children were concerned."
...
The mother's despairing protests are to no avail. On
18 February, 26 February and 3 March 1984, the father rapes his
children again.
Enough is enough. On 6 March 1984, at the request of Malines
Crown Counsel, Detective Sergeant Luc R. interviews little Jan. A
tape recording of the interview is filed with the Malines Criminal
Court. We have seen the transcript of this interview. In childish
words, but coherently and without contradicting himself, Jan
describes sexual acts performed by his father on him and on his
brother, who is even younger. The content of this interview is far
too sensitive for us to reproduce it here.
...
The mother no longer has any alternative. Since her urgent
request for a renowned expert to be appointed has twice been
rejected, she herself calls in the child psychiatrist [MA], a
professor at the Catholic University of Louvain. On 6 and 11 April
he examines the children and finds that during the weekend of 8 -
9 April the father has again ill-treated and raped his children.
According to Professor [MA]'s findings, the children's story
essentially corresponds to what is stated in the mother's
complaint. Moreover, the children reveal certain details to him
which even the mother has not mentioned and which her children
manifestly cannot have invented. Professor [MA] concludes: "We are
convinced that the children's visits to their father are
manifestly likely to have an adverse effect on their future
development. It is already clear that the immediate effect of
access is that the children are extremely upset and disorientated;
after the two days spent with their father, they present as
anxious and aggressive. If these visits continue, we fear that
both children may develop problems, in the nature of mental
illness in the case of the elder and, in the case of the younger,
a tendency to regress, with arrested development. We therefore
request that the children should undergo a thorough psychiatric
examination; that all the parties, including the father, should be
interviewed; and that, pending this examination, the father's
right of access be temporarily withdrawn."
On 28 May 1984 Professor [MA] sent a detailed report on the
case to Principal Crown Counsel [YJ] and the Advocate-General
[YD]. It is an impressive document recording the results of a
number of psychiatric examinations of the children in the form of
interviews (both with and without the mother present). The
children were examined both immediately after an access visit and
at less stressful times during the week. Professor [MA] concluded:
"The two children confirm, independently of each other, the
various types of sexual abuse which have been inflicted on them."
Could the mother have coached the children in these stories?
Professor [MA] says "Jan's version of events always coincides with
his mother's. I see this in itself as an indication that Jan's
story reflects real experiences. A child of six does not in fact
yet have the intellectual capacity, in the context of a guided
interview, to faithfully reproduce, exactly as it has been told to
him, a story which he has been "fed". Furthermore, there were
times when Jan replied to very specific questions with equally
specific answers, which he had never given his mother (and which
his mother had therefore never mentioned). Thus when asked whether
"he bites the willy when it comes into his mouth", he answers,
very specifically: "I can't, because he (the father) puts his
fingers between my teeth." I do not consider that a six-year-old
child is capable of inventing so specific a response, nor do I
believe that such specific responses could have been "prepared" in
advance by the mother."
On 22 June Professor [MA] sent a supplementary report to
Principal Crown Counsel [YJ] and the Advocate-General [YD]. In it
the child psychiatrist confirms his earlier findings with the aid
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