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weekly newspapers are trying to play down the X case, depicting it
as a run-of-the-mill divorce case in which both parties are
hurling the most disgusting accusations at each other. In these
really not very cheering proceedings the "divorce" aspect is only
an insignificant detail, and moreover is quite another matter.
Indeed, we have not published a single word on that subject, nor
do we wish to do so, since it is a purely private matter.
The real issues in the case with which we are concerned are
very serious accusations of incest and child abuse, supported by
medical certificates and examinations, and the extremely
questionable manner in which those accusations are being dealt
with by the courts. This state of affairs is no longer part of two
people's private life but concerns us all. Moreover, the case of
Mr X is simply the tip of the iceberg and is representative of
other incest cases. It is for that reason, and that reason only,
that we have written about it.
In the meantime, certain daily and weekly newspapers are
indulging in the most unsavoury sensationalism and, without really
knowing the case, allowing the notary whole pages in which to
proclaim his version of the facts. Of course, freedom of
expression is sacred. But have we ever pushed Wim and Jan's mother
into the foreground? Have we ever published her opinion of the
case? No. Humo's reports on Wim and Jan have always been based on
our own investigations alone and on innumerable authentic
documents.
We have not written a single word that was not based on the
reports of doctors, paediatricians, court experts and a bailiff.
Since our first "Incest authorised in Flanders" article came out
as far back as 26 June, the notary's family has tried to get
Humo's management round the dinner table to "discuss" the case.
The editorial staff have always taken a consistent line: no
discussion - send us documents proving us wrong and we will
publish them. We also made this offer on [the television
programme] Argus, but up to now Mr X has not got round to sending
us his "equally numerous pieces of expert evidence in rebuttal".
For all his assertions in Knack and De Nieuwe Gazet that these
exist, it is strange that those papers' journalists have yet to
receive this rebutting evidence. All the notary has tried to do so
far is to muddy the waters and present the case as if it were a
matter of his word against his wife's, an argument along the lines
of "Oh no, I didn't" and "Oh yes, you did".
...
In the 5 November issue of Knack the notary reveals yet
another new discovery: the photographs were not taken by the
bailiff but by his ex-wife, and were faked with "red ointment". We
repeat: if the bruises were caused by falling downstairs, why
would they need to be faked with red ointment? It is true that his
wife took photographs, but in the presence of the bailiff. And
they were expressly annexed to the bailiff's report.
But irrespective of that, the relevant point is that the
bailiff did take photographs himself.
...
Nothing but red ointment? The whole thing rigged so as to be
more visible?
...
Besides, those are not the only photos of injuries to have
been taken. Dr [MC] also took numerous photographs of the injuries
and of an "abnormal irritation of the penis and the perianal
region", and they were annexed to his reports. There is no
evidence, the notary asserts. Will it really be necessary to
publish a photo of his little boys' sore anuses?
The court, for which the bailiff's report was drawn up and the
photographs taken, does not appear to have entertained any doubts
as to their authenticity and added them to the case file four
months ago without comment. With good reason. [ZM], the bailiff,
took the photos with a polaroid camera in the presence of
witnesses. That type of camera takes just seconds to produce a
photograph. It is not possible to tamper with them. Mr X knows
very well why he has not instituted proceedings against the
bailiff and why he has published his insinuations only in certain
newspapers and magazines.
This is not the first time that the notary has tried bluff
tactics. The following extract from Knack is telling: "He freely
admits that he has put pressure on several doctors, beaten up his
brother-in-law and, after receiving a tip-off from inside the Humo
editorial team, issued threats against Albert {Frere's} magazine
in order to try to get his name deleted from the articles, but he
does not see any of this as intimidation and considers that in his
unhappy situation, others would have behaved much worse."
The allegation that Mr X tried to have his name deleted from
Humo is one of his many lies. At that time he was asking for no
more and no less than complete censorship: the article was not to
be published! For our part, it has never for a moment even crossed
our minds to mention the name of the notary and his family. That
name has therefore never appeared in a single draft, not even a
preliminary one. For Humo it has never been a matter of attacking
an individual (and in this connection we dissociate ourselves
completely from the billposters who are plastering the notary's
name all over Antwerp) but of the dubious way in which the case
has been handled.
...
Mr X delights in telling everyone that he knows that the
courts and the officially appointed experts are on his side. "He
told us that the report by the three experts from the AKA
(appointed by the Youth Court judge [YL] - Ed.) would be published
on Wednesday, but that he could already reveal that the report
proves his total innocence" (Algemeen Dagblad, 1.11.86).
"This week he hopes to distribute the reports by Dr [MI],
Dr [MK] and Dr [MJ], appointed as experts by the Youth Court a
year ago(!). "They are unanimous and totally favourable to me" [he
says] ..." (Knack, 5.11.86)
Mr X was so positive that we fell into the trap (see our
previous article) of believing that the reports cleared him of all
suspicion. Since at that point the reports had not been filed, we
asked: "Does the notary have a hitherto unsuspected gift of
clairvoyance or has he had an opportunity to consult the reports
even before they are filed with the Youth Court?"
We don't know. But what we do know is that in his interviews
the notary is cocking a snook at the truth. The three reports are
not entirely favourable to him. The conclusions of the report by
the psychiatrist [MK], wholly confused though they indeed are,
explicitly indicate that the evidence on the case file raises a
strong presumption of sexual and physical abuse but that there is
no absolute, irrefutable proof. Using the conditional mood, [MK]
adds that Wim and Jan's stories could have been the product of
"coaching", not to say spoon-feeding, by the mother. In other
words, [MK] is saying that in fact he doesn't know. At all events,
one can hardly say that this report is entirely favourable to
Mr X. The notary has also lied to the press about other things.
According to him, the children are afraid of Malines, the mother's
environment - whereas according to [MK]'s report, one of the
children is very positive towards his mother and very negative
towards his father. The other child sometimes would prefer to stay
in Antwerp and at other times to live in Malines. Moreover, [MK]'s
opinion is that the children should be placed with a foster
family, with access for both parents.
Last week Dr [MJ]'s expert report also came in. A key witness
in relation to the ill-treatment of 16 May, [MJ] concludes that it
never took place. Yet another sample of the expert's wisdom: on
the one hand, he states in his report that the children want to
stay with their mother but, on the other, he recommends placing
them with the father after the divorce, with limited access for
the mother. As an immediate step, he recommends, just like [MK],
that the children should be placed in a neutral setting, with
generous access for both parents. No doubt you have to be an
expert in order to understand so many contradictions.
...
In contrast to the contradictory and inconsistent reports of
these doctors, there are the irrefutable, unequivocal reports of
Professor [MA]:
"Given that the children have again been subjected to sexual
abuse by their father, I consider that any further contact between
the father and the children would for the time being be extremely
prejudicial to the children's subsequent development, and the
situation is particularly dangerous for them in that their mental
development and that of their personalities are seriously
jeopardised. This being so, I consider it necessary to intervene
as a matter of urgency under section 36 (2) (children at risk) of
the Child Protection Act." (August 1984)
The court expert [MB], appointed by the investigating judge
[YE], stated:
"All the examinations of Wim and Jan lead to the same
conclusion: the two children describe sexual contact with Daddy.
Wim is in the midst of assimilating the psychological trauma into
his subconscious. For Jan this process of assimilation is more
difficult. The children's statements appear credible and I have
set out a series of arguments on this point." (August 1984)
Dr [MC], who has examined the children twenty-two times (and
not twelve as the notary, lying again, states in De Nieuwe Gazet)
and has found non-accidental injuries on seventeen occasions,
states:
"In the interests of the two children there should be an
immediate court order withdrawing them totally and permanently
from their father's orbit. Any further delay would be medically
unjustifiable." (May 1986)
It remains a disgrace that the Antwerp courts refuse to take
this evidence into account."
The article was illustrated with two other drawings said to be
by the children; it also contained what the applicants said was an
extract from a report by the bailiff [ZM] describing bruises on
both legs of the younger boy.
24. Following the judgment of 29 September 1988 (see
paragraph 11 above) Mr De Haes and Mr Gijsels published an article
on 14 October 1988 that contained the following:
"...
On 29 September the Brussels tribunal de {premiere} instance
gave judgment in the case brought against Humo by the judges of
the Antwerp Court of Appeal as a result of our articles about the
notary Mr X. Humo lost all along the line. This judgment is not
only desperately short on reasoning but also completely
unsatisfactory. The Vice-President, [YF], and the other judges,
[YG] and [YH], dealt with the case carelessly. They were not
willing to listen to Humo's very strong arguments, while the
debate about the relationship between the media and the judiciary,
which was important for the press as a whole, was purely and
simply brushed aside. We wonder whether their Lordships actually
read Humo's submissions.
The Brussels tribunal de {premiere} instance chose the easy
way out, holding it against us that the "insinuations and
offensive accusations" against the judges "have no foundation
except gossip and malicious distortions". What the whole of
Flanders knows, except apparently Messrs [YF], [YG] and [YH], is
that our doubts as to the integrity of the Antwerp Court of Appeal
magistrats were (and still are) based on a number of medical
reports, which we have always cited verbatim, so there can be no
question of malicious distortion. Are journalists acting
unlawfully where they confine themselves to verbatim extracts from
medical reports and to known and proved facts?
We are also accused of sullying the Antwerp judges' private
lives. But at no time has Humo ever brought up anything to do with
the judges' private lives. We have kept, strictly and
deliberately, to those matters that were directly linked to the
case and were capable of verification in history books and press
articles. How can matters which are so manifestly and indisputably
in the public domain suddenly be considered aspects of private
life?
Further on in the reasons for their judgment, Judges [YF],
[YG] and [YH] say bluntly that we "[accept] as true, without more,
the statement made by Mr X's former wife and her expert adviser
(Professor [MA])". We care not a jot about Mr X's former wife's
statement. We have always concentrated solely on the medical
findings and reports of innumerable doctors.
Yet the tribunal de {premiere} instance simply skirts round
these facts.
Furthermore, one of the essential aspects of Mr X's case has
cleverly been evaded: the conflict between the medical profession
and the judiciary. Journalists have a duty to strive "to respect
the truth", says the court - a dictum to which we gladly
subscribe, but judges are under the same duty.
The judgment of the tribunal de {premiere} instance becomes
positively Kafkaesque when it attacks the medical reports by
simply referring to the judgments of the Court of Appeal judges,
who deliberately failed to take those reports seriously -
precisely the attitude that Humo has condemned. For which we had
our reasons. But what do the judges of the Brussels tribunal de
{premiere} instance do? They use their fellow judges' judgments as
evidence against Humo. In other words, the truth is to be found
only in the judgments of the Antwerp judges. If that is the case,
anyone who challenges a judgment, including in the press, runs the
risk of being put in the wrong since a judge is always right. It
is not the truth but "the official truth and nothing but the
official truth" which will be published in our newspapers in
future. Is that what people want?
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
which we have condemned in the case of Mr X. Humo will accordingly
be appealing against this judgment."
II. Relevant domestic law
25. The first paragraph of the former Article 18 (currently
Article 25) of the Constitution provides:
"The press shall be free; there shall never be any censorship;
no security can be demanded of writers, publishers or printers."
26. The relevant provisions of the Civil Code are worded as
follows:
Article 1382
"Any act committed by a person that causes damage to another
shall render the person through whose fault the damage was caused
liable to make reparation for it."
Article 1383
"Everyone shall be liable for damage he has caused not only
through his own act but also through his failure to act or his
negligence."
According to legal writers and the case-law, an offence
against the criminal law constitutes per se a fault within the
meaning of Article 1382 of the Civil Code (see L. Cornelis,
Beginselen van het Belgische buitencontractuele
aansprakelijkheidsrecht, p. 62, no. 41; judgments of the Court of
Cassation of 31 January 1980 (Pasicrisie 1980, I, p. 622) and
13 February 1988 (Rechtskundig Weekblad 1988 - 89, col. 159)).
Articles 1382 and 1383 of the Civil Code accordingly provide a
basis for civil proceedings for abuse of freedom of the press
(judgment of the Court of Cassation of 4 December 1952, Pasicrisie
1953, I, p. 215). A publication is regarded as being an abuse
where it breaches a criminal provision (without it being
necessary, however, for all the ingredients of the offence to have
been made out); disseminates ill-considered accusations without
sufficient evidence; employs gratuitously offensive terms or
exaggerated expressions; or fails to respect private life or the
individual's privacy.
27. Articles 443 to 449 and 561, 7, of the Criminal Code make
defamation and insults punishable. By Article 450, these offences,
where committed against individuals, can be prosecuted only on a
complaint by the injured party or, if that person has died, his
spouse, descendants or statutory heirs up to and including the
third degree. Articles 275 and 276 of the same Code make it a
punishable offence to insult members of the ordinary courts.
PROCEEDINGS BEFORE THE COMMISSION
28. Mr De Haes and Mr Gijsels applied to the Commission on
12 March 1992. They alleged that the judgments against them had
infringed their right to freedom of expression as guaranteed in
Article 10 of the Convention (art. 10) and that it had been based
on an erroneous interpretation of Article 8 (art. 8). They also
maintained that they had not had a fair trial by an independent
and impartial tribunal within the meaning of Article 6 (art. 6).
29. The Commission declared the application (no. 19983/92)
admissible on 24 February 1995. In its report of 29 November 1995
(Article 31) (art. 31), it expressed the opinion that there had
been a violation of Article 10 (art. 10) (six votes to three) and
Article 6 (art. 6) (unanimously) of the Convention but not of
Article 8 (art. 8). The full text of the Commission's opinion and
of the two dissenting opinions contained in the report is
reproduced as an annex to this judgment <3>.
--------------------------------
Note by the Registrar
<3> For practical reasons this annex will appear only with the
printed version of the judgment (in Reports of Judgments and
Decisions 1997-I), but a copy of the Commission's report is
obtainable from the registry.
FINAL SUBMISSIONS TO THE COURT
30. In their memorial the Government asked the Court to "hold
that there ha[d] been no violation of Articles 6 and 10 of the
Convention (art. 6, art. 10)".
31. In their memorial the applicants asked the Court to "hold
that there ha[d] been a violation of Article 10 and Article 6 of
the Convention (art. 10, art. 6)".
AS TO THE LAW
I. Alleged violation of Article 10 of the Convention
(art. 10)
32. The applicants alleged that the judgment of the Brussels
tribunal de {premiere} instance and Court of Appeal against them
had entailed a breach of Article 10 of the Convention (art. 10),
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 (art. 10)
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 para. 2 (art. 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 (art. 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, paras. 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, para. 31, and the Goodwin v. the United Kingdom
judgment of 27 March 1996, Reports of Judgments and Decisions
1996-II, p. 500, para. 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, para. 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, para. 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, para. 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 (art. 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, para. 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 (art. 10).
II. Alleged violation of Article 6 para. 1
of the Convention (art. 6-1)
50. The applicants also complained of a breach of Article 6
para. 1 of the Convention (art. 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 {premiere}
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-a-vis} his opponent (see, among
other authorities, the Ankerl v. Switzerland judgment of
23 October 1996, Reports 1996-V, pp. 1565 - 66, para. 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 judgment cited
above, p. 502, para. 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 {premiere} 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 {premiere}
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-a-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
para. 1 (art. 6-1). The Court consequently considers it
unnecessary to examine the other complaints raised by the
applicants under that provision (art. 6-1).
III. Application of Article 50 of the Convention
(art. 50)
60. Article 50 of the Convention (art. 50) provides:
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting Party
is completely or partially in conflict with the obligations
arising from the ... Convention, and if the internal law of the
said Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the injured
party."
A. Pecuniary damage
61. The applicants sought 113,101 Belgian francs (BEF) in
respect of pecuniary damage. That sum corresponded to the cost of
publishing the Brussels Court of Appeal's judgment of 5 February
1990 in Humo, plus "one franc on account" for the publication of
the same judgment in six daily newspapers, which has not yet taken
place.
62. No observations were made by either the Delegate of the
Commission or the Government.
63. As the publishing of the judgment was a direct consequence
of the wrongful finding against Mr De Haes and Mr Gijsels, the
Court considers the claim justified.
B. Non-pecuniary damage
64. The journalists also sought compensation in the amount of
BEF 500,000 each for non-pecuniary damage caused by the adverse
publicity and the psychological ordeals which followed their
conviction.
65. The Government considered that the Court's judgment would
be sufficient redress for that damage.
The Delegate of the Commission did not express a view.
66. In the Court's opinion, the Belgian courts' decisions
against the applicants must have caused them certain
unpleasantnesses. The finding of a breach of the Convention,
however, affords sufficient just satisfaction in this regard.
C. Costs and expenses
67. Mr De Haes and Mr Gijsels sought BEF 851,697 in respect of
the costs and expenses relating to their legal representation,
namely: BEF 332,031 for the proceedings in the domestic courts and
BEF 519,666 for those before the Convention institutions,
including BEF 179,666 for translation expenses.
68. No observations were made by either the Delegate of the
Commission or the Government.
69. That being so, the Court allows the claim.
D. Default interest
70. According to the information available to the Court, the
statutory rate of interest applicable in Belgium at the date of
adoption of the present judgment is 7% per annum.
FOR THESE REASONS, THE COURT
1. Holds by seven votes to two that there has been a breach of
Article 10 of the Convention (art. 10);
2. Holds unanimously that there has been a breach of Article 6
para. 1 of the Convention (art. 6-1);
3. Holds unanimously that the respondent State is to pay the
applicants, within three months, 113,101 (one hundred and thirteen
thousand, one hundred and one) Belgian francs in respect of
pecuniary damage and 851,697 (eight hundred and fifty-one
thousand, six hundred and ninety-seven) francs for costs and
expenses, on which sums simple interest at an annual rate of 7%
shall be payable from the expiry of the above-mentioned three
months until settlement;
4. Holds unanimously that the present judgment in itself
constitutes sufficient just satisfaction in respect of
non-pecuniary damage.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 24 February
1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the following
separate opinions are annexed to this judgment:
(a) partly dissenting opinion of Mr Matscher;
(b) partly dissenting opinion of Mr Morenilla.
Initialled: R. R.
Initialled: H. P.
PARTLY DISSENTING OPINION OF JUDGE MATSCHER
(Translation)
I am unable to agree with the majority of the Chamber in so
far as it finds a breach of Article 10 (art. 10).
Although I fully endorse what the Chamber says on the subject
of freedom of expression, and in particular about the importance
of freedom of the press in a democratic society, I believe that
the Chamber has failed to recognise the limits that this freedom
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