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the Chamber has failed to recognise the limits that this freedom
entails, which are also of importance in a civilised democratic
society. Indeed, the reference in the second paragraph of
Article 10 (art. 10-2) to the "duties and responsibilities"
inherent in freedom of the press seems to carry little weight in
the Court's case-law.
Applying these principles to the present case, I would make
the following observations.
The applicants were entitled to criticise the decision of the
Antwerp Court of Appeal awarding Mr X custody of his children
since the objective information available to them justified the
severest censure of that decision; having regard to the
circumstances of the case, it was indeed legitimate to ask how the
judges in question could have taken such a decision.
What I find fault with in the press articles that gave rise to
the decision imposing a penalty on the applicants - albeit a
nominal one - is the insinuation that the judges who gave that
decision had deliberately acted in bad faith because of their
political or ideological sympathies and thus breached their duty
of independence and impartiality, all with the aim of protecting
someone whose political ideas appeared to be similar to those of
the judges concerned. Nothing justified such an insinuation, even
if it had been possible to discover the impugned judges' political
opinions.
In those circumstances, the interference constituted by the
judgment against the applicants was "necessary" within the meaning
of the second paragraph of Article 10 (art. 10-2) and was not
disproportionate.
PARTLY DISSENTING OPINION OF JUDGE MORENILLA
(Translation)
1. To my regret, I cannot agree with the majority's conclusion
as to the breach of Article 10 of the Convention (art. 10) in this
case. In my opinion, the Belgian civil courts' judgment against
the applicants for defamation was necessary in a democratic
society and proportionate within the meaning of paragraph 2 of
Article 10 (art. 10-2).
In the impugned judgments - of the Brussels tribunal de
{premiere} instance, the Brussels Court of Appeal and the Court of
Cassation - the defendants, Mr De Haes and Mr Gijsels, who are
journalists, were found to have acted unlawfully. They were
ordered to pay each of the four plaintiffs - three judges and an
Advocate-General at the Antwerp Court of Appeal - one franc in
respect of non-pecuniary damage suffered and to publish the
relevant decision in full in the weekly magazine Humo, in which
they had published five articles between July and November 1986
criticising judgments given by the Third Division of that court in
terms which the members of that division described as defamatory.
The plaintiffs were also given leave to have the judgment
published in six daily newspapers at the applicants' expense.
The decisions criticised by the applicants had been given in
divorce proceedings in which the Court of Appeal had awarded the
father custody of his children despite allegations by the mother
that he had committed incest with them and subjected them to
abuse.
2. Like the majority, I take the view that the impugned
judgments undoubtedly amounted to an interference with the
applicants' exercise of their right to freedom of expression,
including freedom to hold opinions and the right to impart
information, which is enshrined in Article 10 of the Convention
(art. 10). That interference was provided for in Articles 1382 et
seq. of the Belgian Civil Code and pursued the aim of protecting
the reputation of others - in this instance the reputation of the
judges of the division of the Court of Appeal that had delivered
the judgment - and maintaining the authority and impartiality of
the judiciary, legitimate aims under Article 10 para. 2 of the
Convention (art. 10-2).
3. The necessity of the judgment against the applicants in a
democratic society is therefore the final condition that the
interference has to satisfy in order to be regarded as justified
under paragraph 2 of Article 10 of the Convention (art. 10-2). It
is also the only ground for my dissent from the majority, who
considered that the measure was neither necessary nor
proportionate in view of the fundamental role of the press in a
State governed by the rule of law and the relevance, in principle,
of criticism of the functioning of the system of justice.
4. In my view, however, the articles in question contained, in
addition to criticism of the judicial decision on the custody of
the children in the divorce proceedings, assessments of the
Belgian judicial system in general and the political opinions of
members of the Antwerp Court of Appeal, whose names were given,
and details of the past of the father of one of the judges. They
attributed to the judges and the Advocate-General political ideas
similar to those of the father who had been awarded custody. I
consider these comments to have been very offensive to the Belgian
judiciary and defamatory of the judges and Advocate-General at the
Court of Appeal. The latter were intentionally accused by the
applicants of having taken unjust decisions because of their
friendship or their political affinities with one of the parties
to the proceedings, and that amounts to an accusation of
misfeasance in public office.
5. The articles contained expressions such as "Two children
crushed between the jaws of blind justice. Incest authorised in
Flanders" or "Most of the judges of the Third Division of the
Court of Appeal, who awarded custody to the notary, also belong to
extreme-right-wing circles. Judge [YB] is the son of a bigwig in
the gendarmerie who was convicted in 1948 of collaboration ... It
just so happens that Principal Crown Counsel [YJ] has the same
political sympathies as the X family" (first article, of 26 June
1986). "[H]alf Flanders is shocked by such warped justice." "This
kind of brutal pressurising seems to "work" very well within the
system of justice." "Thanks to the fresh data, we now have an even
better picture of how often and how treacherously the courts have
manipulated the case" (second article, of 17 July 1986). "[T]he
ultimate guarantee of our democracy, an independent system of
justice, has been undermined at its very roots" (third article, of
18 September 1986). "It remains a disgrace that the Antwerp courts
refuse to take this evidence into account" (fifth article, of
27 November 1986).
6. In another case concerning the conviction of a journalist
and a publisher for defamation of a judge, similar to the present
case, albeit in criminal proceedings, the case of Prager and
Oberschlick v. Austria (judgment of 26 April 1995, Series A
no. 313), the Court stressed the need to strike the correct
balance between the role of the press in imparting information on
matters of public interest, such as the functioning of the system
of justice, and the protection of the rights of others and "the
special role of the judiciary in society", where "as the guarantor
of justice, a fundamental value in a law-governed State, it must
enjoy public confidence if it is to be successful in carrying out
its duties" (paragraph 34).
7. These features of freedom of the press not only are
compatible with freedom of expression but also confer on it the
objectivity required to ensure truthful and serious reporting of
the functioning of the system of justice. As the Court said in the
Prager and Oberschlick case, "[i]t may therefore prove necessary
to protect such confidence against destructive attacks that are
essentially unfounded, especially in view of the fact that judges
who have been criticised are subject to a duty of discretion that
precludes them from replying" (ibid.).
8. In the same judgment the Court also said: "The assessment
of these factors falls in the first place to the national
authorities, which enjoy a certain margin of appreciation in
determining the existence and extent of the necessity of an
interference with the freedom of expression." However, this margin
of appreciation is subject to European supervision (paragraph 35).
In reviewing its compatibility with the Convention, the Court must
have regard to the fact that "the press is one of the means by
which politicians and public opinion can verify that judges are
discharging their heavy responsibilities in a manner that is in
conformity with the aim which is the basis of the task entrusted
to them" (paragraph 34).
9. In my opinion, the decision on how to classify the extracts
mentioned in the impugned judgments concerning the lack of
impartiality of the judges and the Advocate-General at the Antwerp
Court of Appeal and the statements regarding the Belgian system of
justice lies within the margin of appreciation of the national
courts. The statements made by the applicants amounted to value
judgments on the political ideas of the judges and
Advocate-General in question or on the influence that those ideas
and family background had on the decision commented upon. Such
value judgments were not susceptible of proof and could not
justify the accusation of bias on the part of the judges or the
sweeping nature of the accusations or the virulence and
contemptuousness of the terms employed.
10. The judicial decisions complained of were based not on the
criticism of the "objective truth" of the facts established in the
divorce proceedings or on the lawfulness of the decisions taken by
the judges, but on the dishonouring statements contained in the
articles. The journalists nevertheless raised important questions
relating to the criticism of the functioning of the system of
justice and the courts ought to have considered them in full and
ruled on them in their judgments. This defect does not, in my
view, invalidate the judgment against the applicants for
defamation, since that judgment was in fact based on the offensive
statements used in their articles. The defect goes to the breach
of Article 6 (art. 6), which the Court found unanimously.
11. In the strict context of the impugned decisions, I
consider that the Belgian civil courts' finding that the terms
employed and statements made in the articles had undermined the
reputation for impartiality of the judges who had given the
judgment on appeal and the authority and independence of the
judiciary was in conformity with Article 10 para. 2 of the
Convention (art. 10-2), as was the relief afforded to the
plaintiffs on this account.
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