CASE OF TOLSTOY MILOSLAVSKY v. THE UNITED KINGDOM

Violation of Art. 10;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings;Lack of jurisdiction (injunction to State)

Count Nikolai Tolstoy Miloslavsky, a British citizen, lives in Southall, Berkshire, in the United Kingdom. He is a historian.

In March 1987 a pamphlet written by the applicant and entitled "War Crimes and the Wardenship of Winchester College" was circulated by Mr Nigel Watts to parents, boys, staff and former members of the school as well as to Members of Parliament, Members of the House of Lords and the press. Mr Watts bore a grievance against the Warden of Winchester College, Lord Aldington, at the time Chairman of an insurance company, concerning an insurance claim. The pamphlet included the following statements:

"Between mid-May and early June 1945 some 70,000 Cossack and Yugoslav prisoners-of-war and refugees were handed over to Soviet and Titoist communist forces as a result of an agreement made with the British 5 Corps administering occupied Austria. They included a large proportion of women, children, and even babies. The majority of Cossack officers and their families handed over held League of Nations passports or those of the Western European countries in which they had found refuge after being evacuated from Russia by their British and French Allies in 1918-20, and were hence not liable to return under the terms of the Yalta Agreement, which related only to Soviet citizens.

As was anticipated by virtually everyone concerned, the overwhelming majority of these defenceless people, who reposed implicit trust in British honour, were either massacred in circumstances of unbelievable horror immediately following their handover, or condemned to a lingering death in Communist gaols and forced labour camps. These operations were achieved by a combination of duplicity and brutality without parallel in British history since the Massacre of Glencoe. Outside Lienz may be seen today a small Cossack cemetery, whose tombstones commemorate men, women and children shot, clubbed, or bayoneted to death by British troops.

The man who issued every order and arranged every detail of the lying and brutality which resulted in these massacres was Brigadier Toby Low, Chief of Staff to General Keightley's 5 Corps, subsequently ennobled by Harold Macmillan as the 1st Baron Aldington. Since 1979 he has been Warden of Winchester College, one of the oldest and most respected of English public schools. Whether Lord Aldington is an appropriate figure for such a post is primarily a matter for the College to decide. But it is also surely a legitimate matter of broader public concern that a man responsible for such enormities should continue to occupy a post of such honour and prominence within the community, in particular one which serves as exemplar for young people themselves likely one day to achieve high office and responsibility.

The truth is, however, that Lord Aldington knows every one of his pleas to be wholly or in large part false. The evidence is overwhelming that he arranged the perpetration of a major war crime in the full knowledge that the most barbarous and dishonourable aspects of his operations were throughout disapproved and unauthorised by the higher command, and in the full knowledge that a savage fate awaited those he was repatriating. Those who still feel that a man with the blood of 70,000 men, women and children on his hands, helpless charges whom the Supreme Allied Commander was making every attempt to protect, is a suitable Warden for Winchester might care to ask themselves (or Lord Aldington, if they can catch him) the following questions:

Lord Aldington has been repeatedly charged in books and articles, by press and public, with being a major war criminal, whose activities merit comparison with those of the worst butchers of Nazi Germany or Soviet Russia ..."

Lord Aldington instituted proceedings against Mr Watts for libel in the High Court of Justice (Queen's Bench Division). The applicant was subsequently joined to these proceedings at his own request. The defendants pleaded "justification" and "fair comment".

Lord Aldington asked that the case be heard by a single judge without a jury. However, the applicant exercised his right to trial by jury.

The trial began on 2 October 1989 and lasted until 30 November when the jury of twelve returned its verdict. In the course of the trial Lord Aldington gave evidence for some six and a half days and was cross-examined. The applicant gave evidence for more than five days and a number of witnesses were called.

Mr Justice Michael Davies devoted some ten pages of his summing-up to the question of the assessment of damages if defamation were to be established. He directed the jury, inter alia, as follows:

"... Let us now, members of the jury, ... deal with the aspect of damages ... I have to give you this direction in law because damages may arise ... If the plaintiff wins, you have got to consider damages. Some would say that the only direction on damages necessary in this particular case was to say: [the applicant] says that if damages are to be payable he agrees they should be enormous. Mr Rampton [defence counsel], I do not think, in his final speech could quite bring himself to utter that word, but he said they will be very generous - and I could stop there. But that is not the way, you see, because the parties do not dictate (even if they are making concessions) how you should approach damages. You do it in accordance with the law, and that is what I am now going to tell you. You have to accept my directions about it, and you will apply them of course as you think fit.

the means of the parties - the plaintiff or the defendant - is immaterial

Neither, as I think I said earlier but I say it now, is the question whether Lord Aldington or [the applicant], or for that matter Mr Watts, have been or will be financially supported by any well wishers as to damages relevant at all. Nor is it relevant the undoubted fact that legal aid is not available in libel cases to a plaintiff or a defendant. All irrelevant, and if it is to be changed it is up to Parliament to do something about it ...

... what you are seeking to do, what a jury has to do, is to fix a sum which will compensate the plaintiff - to make amends in financial terms for the wrong done to him, because wrong has been done if you have got to the stage of awarding damages. It is not your duty or your right to punish a defendant ...

What [Lord Aldington] does claim, of course, is for 'general damages', as lawyers call it, a sum of money to compensate him. First of all, you have to take into account the effect in this case, as in every case where there is libel, on the position, standing and reputation of the successful plaintiff ...

... If they [the allegations made in the pamphlet] were untrue and not fair comment, where it is suggested that they were comment, he is entitled to be compensated for that, so that that will register your view of that.

Then you have got to consider ... the injury to his feelings. I told you that he cannot, of course, claim on behalf of his wife or any member of his family, although the affect on them may have had an affect on him which is a reaction, which you are entitled to take into account.

It is not just his feelings when he read this ... It is his feelings during the time whilst awaiting the trial ... and the publicity ...

... you have to consider ... what lawyers call `vindication' ...

You may think - it is a matter for you - that in this particular case vindication - showing that he was right - is the main reason for Lord Aldington bringing this action - that is what he says anyway - to restore his character and standing ... 'An award, an enormous award', to use [the applicant's] words - 'a very generous award' to use Mr Rampton's words, will enable him to say that put the record straight.

Members of the jury, of course, you must not, as a result of what I have just said, just bump and bump the damages up. You must, at all times, as they say, keep your feet on the ground.

... You have to take into account the extent and nature of the publication.

... whilst you must leave aside any thought of punishing the defendants if you find for the plaintiff, juries are always entitled, as I have hinted already, to take into account any conduct of the defendant which has aggravated the damages - that is to say, made the damage more serious and the award higher - or mitigated them - made the damage done less serious and the award smaller.

Now, two general remarks which I make in every case: nobody asks you how you arrive at your verdict, and you do not have to give reasons like a Judge does, so it is exceedingly important that you look at the matter judicially, and that means that you should not be outrageously or unreasonably high, or outrageously or unreasonably low.

The second matter I say to every jury is: please, I beg you, if you come to damages, do not pay the slightest attention to any other case or the result of any other case you may have read about or heard about. The facts and the legal considerations are like[ly] to have been completely different. There is no league of damages in defamation cases. There is no first division, there is no fourth division, there is no Vauxhall conference, if any of you are interested in football.

So, members of the jury, please forget other cases. Use your own common sense about it. How do you translate what I have said into money terms? By our rules and procedure, members of the jury, counsel can use, and a judge can use, words like 'very substantial' or 'very small', but we do not either of us, counsel or judges, mention figures. Some people again, who have not really considered the matter very carefully, wonder about that, and they say juries should be given guidance, and I say to you what I say to every jury in these cases, it would not be a great deal of help for you, because inevitably, it is human nature and it would be their duty - counsel for the plaintiff would be at the top end of the scale and perhaps in some cases, I do not suggest this one, off the clock, and counsel for the defendant would be at the bottom end of the scale in the basement. Now, that would not be much good to anybody. As for the Judge, well the jury might think - you may have an exactly opposite view - a jury might think: 'Well, on the whole, whatever other people say about this particular Judge in this case, we think he tried to be fair, why doesn't he suggest a figure to us?'

Supposing a Judge, myself in this case, were to suggest a figure to you, or a bracket between so and so and so and so, there would be two possibilities: one is that you would ignore what I said and either go higher than my figure or bracket, or much lower, in which case of course the losing party that did not like it would be off to the Court of Appeal saying: 'Look, the Judge suggested a figure and the jury went above it or below it.'

Supposing you accepted my suggestion, and gave a figure that I recommended, or close to it. Well, all I can say is that you would have been wasting your valuable time in considering the matter of damages because you would just have been acting as a rubber stamp for me, or the Judge, whoever it was. So we do not have that over-bidding or under-bidding, as the Court of Appeal has called it, by counsel, and we do not have Judges trying to lay down to juries what they should award, and I do not hesitate to say, whatever other people say, I hope and pray, for the sake of our law and our court, we never get the day when Judges dictate to juries so that they become rubber stamps.

I am, however, allowed - indeed encouraged - by the Court of Appeal just to say a little bit more. I say it not perhaps in the words of the Court of Appeal, but in my own way, which may be too homely for some, but I say to you that you must remember what money is. You do not deal in Mickey Mouse money just reeling off noughts because they sound good, I know you will not. You have got to consider money in real terms. Sometimes it is said 'Well, how much would a house cost of a certain kind', and if you are giving a plaintiff as compensation so much money how many houses is he going to buy? I do not mean to suggest that Lord Aldington or any other plaintiff would take his damages and go and buy a house or a row of houses, but that relates it to the sort of thing, if you will allow me to say, you and I do know something about, because most of us have a pretty good idea how much houses are worth. So remember that."

In its unanimous verdict of 30 November 1989, the jury answered the questions put by Mr Justice Davies as follows:

"1. Have [the applicant] and Mr Watts proved that the statements of fact in the pamphlet are substantially true?

... No.

Does the pamphlet contain expressions of opinion?

... Yes.

Have [the applicant] and Mr Watts proved that those expressions of opinion are fair, in the sense that they are such as a fair-minded man could honestly make on the facts proved to be true?

... No.

(1) Do you find for Lord Aldington or for Mr Watts?

... Lord Aldington.

(2) Do you find for Lord Aldington or for [the applicant]?

... Lord Aldington.

What sum in damages do you award Lord Aldington?

... £1,500,000."

Accordingly, Mr Justice Davies directed that judgment should be entered against the applicant and Mr Watts for the above-mentioned sum, which was approximately three times the largest amount previously awarded by an English libel jury. In addition he granted an application by Lord Aldington for an injunction (section 37 of the Supreme Court Act 1981) restraining, inter alios, the defendants from publishing or causing or permitting to be published or assisting or participating in or conniving at the publication of the words contained in the impugned pamphlet or

"any other words or allegations (however expressed) to the following or any similar effect namely that the Plaintiff [Lord Aldington] in connection with the handover in 1945 to Soviet or Yugoslav forces of military or civilian personnel was guilty of disobedience or deception or criminal or dishonourable or inhumane or other improper or unauthorised conduct or was responsible for the subsequent treatment of any such personnel by the Soviets or the Yugoslavs the said defendants being at liberty to apply to vary or discharge this injunction."

The applicant was also ordered to pay Lord Aldington's costs.

The applicant (but not Mr Watts) gave notice of appeal to the Court of Appeal setting out a number of grounds, several of which went to the fairness of the proceedings. He criticised Mr Justice Davies among other things for having displayed overt animosity towards the defendants and for his continual interruption, sarcasm and abuse of defence counsel. The Judge had, he alleged, insulted and disparaged the defence witnesses. Throughout his summing-up he had wholly or largely suppressed or ignored many of the most important aspects of the case for the defence and had misled the jury on issues central to the defendants' arguments. When directing the jury on the question of damages, the tenor of the judge's remarks had been in large part to urge the jury to award high damages to the plaintiff and to discount the alternatives which had been reasonably available on the evidence; the damages had in any event been unreasonable and excessive.

On 9 January 1990 Lord Aldington applied to the Court of Appeal for an order requiring the applicant, under Order 59, Rule 10 (5) of the 1965 Rules of the Supreme Court, to give security in an amount which would cover the costs of his opponent's representation if the appeal were to be unsuccessful. It was not disputed that the applicant would be unable to pay the relevant costs.

In an open letter of 2 February 1990, Lord Aldington offered not to enforce £1,200,000 of the damages awarded. In his reply the applicant confirmed that he was unable to provide any security for Lord Aldington's costs in the appeal proceedings and, maintaining that the trial had been a travesty of justice, declined the offer.

In a twenty-two-page judgment of 18 May 1990 the Registrar of the Court of Appeal examined the facts raised by the applicant and rejected the application for security for costs. The Registrar stated that impecuniosity was a ground for awarding security for costs in respect of the costs of an appeal to the Court of Appeal. In exercising its discretion in this regard, the Court of Appeal would attach particular weight to the merits, or otherwise, of the appeal concerned. If the appeal had little or no merit, a security for costs order would normally be made against an impecunious appellant. If the appeal had reasonable prospects of success, the court would be reluctant to order security for costs.

The Registrar pointed out that he had not found it easy to decide whether the applicant's appeal on liability had sufficient strength to justify allowing him to proceed without furnishing security for costs, given that, if his appeal failed, he would not have the funds to pay Lord Aldington's costs of the appeal. He added that, with some hesitation, he found that on several specific points the appeal had just enough strength to lead him to conclude that security for costs should not be awarded in this case. There was a possibility that if the applicant succeeded in convincing the Court of Appeal that he had not had a fair trial, and his case had not been fairly and clearly put to the jury, the Court of Appeal would conclude that a new trial had to be ordered, notwithstanding the fact that the chances of his succeeding on the new trial were slim.

In view of the above conclusion the Registrar did not find it necessary to deal with an argument made by counsel for Lord Aldington that the appeal on quantum would be academic because of his offer of 2 February 1990 (see paragraph 15 above).

Lord Aldington appealed successfully against the Registrar's decision to the full Court of Appeal, which heard the matter for six days between 9 and 17 July 1990 and gave judgment on 19 July 1990. The members of the Court of Appeal gave, in summary, the following reasons.

The Court of Appeal had to consider the application afresh and decide whether to order security would amount to a denial of justice to the applicant, having regard to the merits of his appeal. The criticism made in the applicant's grounds of appeal did not concern Mr Justice Davies's directions on the law but, in particular, what the applicant characterised as bias and partiality on the part of the judge towards Lord Aldington and the way in which the judge had dealt with three particular issues of fact. The criticism was however not justified. Mr Justice Davies had clearly left to the jury the decision on the facts of the case and all the major matters had been dealt with fully and fairly. The judge's summing-up had quite clearly brought to the jury's minds the matters which the defence had contended were of primary significance. Counsel had been given full opportunities to raise matters of alleged error, and when they had deemed it necessary they had done so. Furthermore the principal witnesses had been in the witness-box for some thirteen days in all. Lord Aldington, who had been the central witness in the case in the sense that it was his conduct which was the subject of examination, had been in the witness box for no less than six and a half days. It was inconceivable that the jury had not taken full account of and acted on the evidence of the principal witnesses who had been so comprehensively examined and cross-examined upon all the material issues in the case.

The case had been an entirely appropriate one for a jury and had duly been tried by a jury. In this connection Sir Stephen noted that at a preliminary stage, when Lord Aldington had asked for the case to be tried by a judge alone, the applicant had resisted his application.

The new evidence adduced by the applicant did not carry any weight in the light of all the evidence which had been given at the trial.

The applicant's submission that Lord Aldington was supported by Sun Alliance Insurance Company was irrelevant.

In the result, on the issue of liability there was no merit in the appeal.

Sir Stephen Brown added:

"The quantum of damage is a very large sum. However, there is no doubt that the learned judge gave an impeccable direction on damages. [The applicant] has argued that the judge invited the jury to give excessive damages. A correct reading of the transcript shows that he did just the opposite. There is no merit in that submission.

The award was entirely within the jury's discretion and they received a very full direction about it. I have no doubt that it was meant to mark their view of the enormity of the gross libel which had been published and persisted in.

[The applicant] has however made it clear that he is not really interested so much in the question of the amount of damages as in the issue of liability. He wishes to continue to pursue Lord Aldington if he can and to persist in his allegation at a new trial. In fact he was offered a substantial reduction in the damages to the extent of £1.2 million. This he rejected. This move was not a concession by the plaintiff's solicitors that the award was too high, but was made recognising that the plaintiff was unlikely to receive the amount awarded and was content with the fact that the jury had by their verdict rejected in an overwhelming manner the truth of the libel which had been published."

"The court will be very slow to interfere with the jury's verdict unless there has been some material irregularity in the proceedings which renders the verdict unsafe or unsatisfactory, or it can properly be said that the verdict is perverse. Much the same considerations must apply in the instant case.

As to any irregularity in the proceedings, I detect none ...

This case, and the jury's verdict, depended essentially upon the veracity of Lord Aldington. No document or documents were produced which on their face could destroy Lord Aldington's credibility. If the jury had disbelieved Lord Aldington, there would have been an end of his case. The fact that the jury found in his favour and awarded him the damages that they did demonstrates that upon the vital issues of the case they must have accepted the plaintiff's evidence. Was that a course which was open to the jury? In my judgment, it plainly was ...

There is not in my judgment the remotest chance of the Court of Appeal interfering with the jury's finding in the plaintiff's favour and directing a retrial of that issue, either on the basis that the verdict cannot stand or on the basis of fresh evidence which [the applicant] seeks to introduce.

Finally, upon the issue of damages, [the applicant] had been offered in an open letter the substitution of £300,000 for the one and a half million pounds awarded by the jury. The libel remains as serious a libel as it is possible to imagine. Any appeal upon quantum alone would be no more than an academic exercise. [The applicant] wishes to reopen the whole case. In my judgment, the defendant being impecunious, justice demands that he should provide security for the plaintiff's costs of any appeal."

"It would be difficult to conjecture an allegation more calculated to bring the respondent into the hatred and contempt of his fellow men and the evidence showed that it was deliberately circulated with the aim of encouraging the respondent to sue him, thus giving the appellant the opportunity to challenge in public the respondent's conduct 45 years ago ...

It is not for this court to grant a retrial after the verdict of a jury, even if it thought that a reasonable jury ought to have found differently. The test which, on the hearing of the appeal, this court would have to apply is whether the finding of the jury is so absolutely unreasonable that it can be said that they have not performed the judicial duty cast upon them. Again I have listened to the skilful development of the facts and evidence by the appellant. He has failed to satisfy me that he has any reasonable chance of success in this appeal. Even if he persuaded the court to grant a retrial on the issue of the amount of the damages, I would regard as negligible the prospect of any jury, doing their judicial duty, awarding the respondent [Lord Aldington] less than the sum which he has in reality already offered to accept in compromise of this appeal. The appellant has therefore failed to satisfy me that he has any such real and substantial grounds of appeal as would justify this court in saying that the special circumstances of his inability to pay the respondent's costs if he fails can be disregarded."

The Court of Appeal ordered the applicant to provide security for Lord Aldington's costs in respect of the appeal in the sum of £124,900 within fourteen days, failing which the appeal would stand dismissed. It rejected a request by the applicant for more than fourteen days to attempt to raise the money. In addition the Court of Appeal ordered the applicant to pay Lord Aldington's costs (£22,000) in the security for costs proceedings. The judgment runs to twenty-three pages.

The applicant did not furnish the required security and his appeal was dismissed on 3 August 1990.

No part of the damages or costs have to date been paid by the applicant to Lord Aldington.

In 1993 the applicant applied to the Court of Appeal for leave to appeal out of time against the High Court's judgment of 30 November 1989 and for leave to adduce new evidence. The Registrar informed him in September 1993 that the Court of Appeal had no jurisdiction since the subject-matter was the same as an appeal which had already been dismissed.

On 21 February 1994 the applicant issued a writ against Lord Aldington in the High Court, applying for an order that the judgment of 30 November 1989 be set aside on the grounds of fraud. He also sought damages and other relief. Lord Aldington applied to strike out the action as an abuse of process and as being vexatious and frivolous.

By judgment of 14 October 1994, Mr Justice Collins struck the case out as being an abuse of the process of the court, on the ground that the applicant was unable to establish a reasonable possibility that the new evidence might show that Lord Aldington had committed perjury. In a judgment of 30 November 1994 Mr Justice Collins ordered the applicant's solicitors, who had funded the new action by acting without a fee, to pay 60% of Lord Aldington's costs in the proceedings. An appeal by the applicant to the Court of Appeal is pending.

Under English law the actions of libel and slander are private legal remedies, the object of which is to vindicate the plaintiff's reputation and to make reparation for the injury done by the wrongful publication to a third person or persons of defamatory statements concerning the plaintiff. The defendant in these actions may prove the truth of the defamatory matter and thus show that the plaintiff has received no injury. Although there may be damage accruing from the publication if the facts published are true, the law gives no remedy by action (see Halsbury's Laws of England, Fourth Edition, vol. 28, paragraph 1).

A strict liability rule applies to the tort of libel: "A man in good faith may publish a libel believing it to be true, and it may be found by the jury that he acted in good faith believing it to be true, but that in fact the statement was false. Under those circumstances he has no defence to the action, however excellent his intention." (Lord Loreburn LC in Hulton v. Jones [1910] Appeal Cases 20 (House of Lords), at pp. 23-24)

The law presumes in the plaintiff's favour that the words are false, unless and until the defendant proves to the contrary (Gatley, Libel and Slander, Eighth Edition, paragraph 5, p. 6).

If the defendant attempts unsuccessfully to prove that the words are true, this is likely to increase the damages (Duncan and Neill on defamation, Second Edition, paragraph 18.14, p. 129).

The purpose of damages in the law of libel is as stated by Lord Hailsham in Broome v. Cassell & Co. Ltd ([1972] Appeal Cases 1027, at p. 1071, quoted by Lord Donaldson in Sutcliffe v. Pressdram Ltd [1991] 1 Queen's Bench 153, p. 189):

"In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before his wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. `... [A] man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done.' ... Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant ..."

If the words in question are reasonably capable of being understood in a defamatory sense, the judge must leave it to the jury to say whether they did, in fact, defame the plaintiff. If not, he must give judgment for the defendant without leaving the case to the jury.

The proper course to adopt for the judge in civil proceedings for libel or slander, or criminal proceedings, where there is a case to go to the jury, is to define what is libel in point of law, and leave it to the jury to decide as a matter of fact whether the particular publication falls within that definition or not.

Halsbury's Laws of England, Fourth Edition, vol. 28, paragraphs 225, 227 and 232).

There is no upper or lower limit to the sum of damages which a jury in a libel trial may award. In the above-mentioned case of Sutcliffe v. Pressdram Ltd, Lord Donaldson stressed that referring juries to other cases would confuse rather than assist the jury and that any attempt by counsel or the judge to discuss figures would lead to unhelpful overbidding and underbidding and would risk usurping the true function of the jury. However, the judge might give some guidance to a jury to assist it in appreciating the real value of very large sums of money, for example by inviting it to consider what regular income could be obtained if the sum was invested (see the above-mentioned case of Sutcliffe v. Pressdram Ltd, Lord Donaldson, p. 178; see also Lord Nourse, p. 186, and Lord Russell, pp. 190 91).

At the relevant time, under Order 59, Rule 11, of the Rules of the Supreme Court 1965, the Court of Appeal had power to set aside a High Court judgment and order a new trial. Rule 11 (1)-(3) read:

"(1) On the hearing of any appeal the Court of Appeal may, if it thinks fit, make any such order as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the court below.

(2) The Court of Appeal shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been thereby occasioned.

(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court of Appeal that any such wrong or miscarriage as is mentioned in paragraph 2 affects part only of the matter in controversy, or one or some only of the parties, the court may order a new trial as to that party only, or as to that party or those parties only, and give final judgment as to the remainder.

(4) ..."

As to what test the Court of Appeal should apply in exercising its powers to set aside a jury's verdict on damages, Lord Kilbrandon in Broome v. Cassell & Co. Ltd ([1972] Appeal Cases 1027, p. 1135) stated that it was not sufficient for the court to conclude that the award was excessive; it had to ask whether the award could have been made by sensible people, or whether it must have been arrived at capriciously, unconscionably or irrationally.

According to Rule 11 (4), as in force at the material time, the Court of Appeal had no power, in lieu of ordering a new trial, to reduce or increase the damages awarded by the jury, unless the party or parties concerned consented.

Since the entry into force on 1 February 1991 of the Courts and Legal Services Act 1990, the Court of Appeal has a power under section 8 (2) of that Act to substitute its own assessment of damages for that of the jury irrespective of whether the parties agree or not. Order 59, Rule 11 (4), as amended in the light of the above section 8, provides:

"In any case where the Court of Appeal has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate, the court may, instead of ordering a new trial, substitute for the sum awarded by the jury such sum as appears to the court to be proper, but except as aforesaid the Court of Appeal shall not have power to reduce or increase the damages awarded by a jury."

In the case of Rantzen v. Mirror Group Newspapers (1986) Ltd ([1993] 3 Weekly Law Reports, p. 953) the Court of Appeal exercised its powers under section 8 of the Courts and Legal Services Act 1990 and under the new Order 59, Rule 11 (4). In interpreting its power to order a new trial or to substitute another award on the ground that the damages awarded by the jury were excessive, the Court of Appeal observed that the grant of an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what is "necessary in a democratic society" or "justified by a pressing social need" for the purposes of Article 10 (art. 10) of the European Convention on Human Rights. The common law, if properly understood, required the courts to subject large awards of damages to a more searching scrutiny than had been customary in the past. It followed that what had been regarded as the barrier against intervention should be lowered. The question became:

"Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?"

As to what guidance the judge could give to the jury, the Court of Appeal was not persuaded that the time had come to make references to awards by juries in previous libel cases. Nor was there any satisfactory way in which awards made in actions involving serious personal injuries could be taken into account. It was to be hoped that in the course of time a series of decisions of the Court of Appeal, taken under section 8 of the Courts and Legal Services Act 1990, would establish some standards as to what would be "proper" awards. In the meantime the jury should be invited to consider the purchasing power of any award which they may make and to ensure that any award they make is proportionate to the damage which the plaintiff has suffered and is a sum which it is necessary to award him to provide adequate compensation and to re-establish his reputation.

The Court of Appeal concluded that although a very substantial award was clearly justified in the case, judged by any objective standards of reasonable compensation or necessity or proportionality, the award of £250,000 was excessive. It substituted the sum of £110,000.


Violation of Art. 6-1;Non-pecuniary damage - financial award

The applicant was born in 1959 and lives in Ankara.

On 21 November 1983 the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation, the DevYol (Devrimci Yol - the Revolutionary Way).

On 30 December 1983 the Ankara Martial Law Court ordered the applicant’s detention on remand.

On 14 December 1988 the applicant was released pending trial.

On 19 July 1989 the Ankara Martial Law Court convicted the applicant of membership of an illegal organisation and sentenced him to seven years’ imprisonment.

On 28 December 1996 the Court of Cassation quashed the judgment of the Ankara Martial Law Court on the ground that the latter had misinterpreted the domestic law in respect of the offence in question.

Subsequent to the promulgation of Law no. 3953 on 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Ankara Assize Court acquired jurisdiction in the applicant’s case.

On 6 May 1996 the Ankara Assize Court commenced the applicant’s trial.

On 28 May 2004 the applicant was convicted of attempting to undermine the constitutional order under Article 146 of the Criminal Code. The first-instance court however held that there was no need for the applicant’s imprisonment, taking into account his previous custody and detention on remand.

The proceedings are still pending.


The applicants [Mr Jesús Santiago Tirado Ortiz and Mr Santiago Lozano Martin] are two Spanish nationals who were born in 1951 and 1965 respectively and live in Saragossa.

They were represented before the Court by Mr E. Trebolle Lafuente, of the Saragossa Bar.

At 11.35 p.m. on 15 June 1996 the applicant, who was driving on the motorway, had an argument with a toll-gate official about the amount he was to be charged for using the motorway. Shortly afterwards, some guardia civil officers, having been alerted by the toll-gate official, observed that the applicant was driving his car in zigzags. After stopping him, they noted that he appeared to be under the influence of alcohol. The applicant refused to submit to a breath test, despite being informed that his refusal might make him liable to prosecution under Article 380 of the Criminal Code for serious failure to obey the orders of a law-enforcement officer.

An investigation was conducted, following which the applicant was committed for trial on charges of endangering other road-users and serious failure to obey orders.

After adversarial proceedings the Saragossa Criminal Court no. 7, in a judgment of 19 November 1996 sentenced the applicant to a fine or, in default of payment, three months’ imprisonment, and disqualified him from driving for one year for endangering other road-users or jeopardising road safety contrary to Article 379 of the Criminal Code. It decided to refer to the Constitutional Court the question whether Article 380 of the Criminal Code, which made serious failure to obey the orders of an officer a criminal offence, was compatible with Article 24 of the Constitution, which guarantees the right not to make self-incriminating statements and not to confess guilt. The court accordingly, decided to stay its decision on the second charge until the Constitutional Court had ruled on the constitutionality of Article 380.

The applicant appealed against his conviction on the charge of endangering other road-users, but it was upheld by the Saragossa Audiencia provincial on 29 November 1997.

In a judgment delivered by a full court on 18 December 1997 the Constitutional Court held that Article 380 of the Criminal Code was compatible with Article 24 of the Spanish Constitution. The Constitutional Court held that breath tests were not designed to compel drivers to admit certain facts, but were merely a means of obtaining expert evidence, and could not be regarded as obliging the driver to incriminate himself or, therefore, as being contrary to Article 24 § 2 of the Constitution. The court held that breath tests did amount to interference with the right to respect for a person’s private life, guaranteed by Article 18 of the Constitution, but that the interference was necessary for the prevention of road accidents and for the safety of others.

After adversarial proceedings the Saragossa Criminal Court no. 7, in a judgment of 12 January 1998, convicted the applicant of serious failure to obey orders on the ground that he had refused to submit to a breath test. It sentenced him to six months’ imprisonment.

At about 6.30 a.m. on 20 July 1996 the applicant struck two other cars while attempting to park in Saragossa. An argument ensued with the owners of the other two cars and the applicant was taken to the police station where he was ordered to submit to a breath test. The applicant refused to do so, despite being informed that his refusal might make him liable to prosecution for serious failure to obey an officer’s orders.

In a judgment of 2 June 1997 the Saragossa Criminal Court no. 1 decided to refer to the Constitutional Court the question whether Article 380 of the Criminal Code, which made serious failure to obey orders a criminal offence, was compatible with Article 24 of the Constitution, which guarantees the right not to make self-incriminating statements and not to confess guilt. The court accordingly decided to stay its decision on the charge until the Constitutional Court had ruled on the constitutionality of Article 380.

Following the above-mentioned judgment of the Constitutional Court of 18 December 1997, the Saragossa Criminal Court no. 1, in a judgment of 5 January 1998, convicted the applicant of serious failure to obey an officer’s orders on the ground that he had refused to submit to a breath test. It sentenced him to six months’ imprisonment. The applicant appealed to the Saragossa Audiencia provincial. The case is still pending before that court.

“Anyone driving a motor vehicle or moped under the influence of toxic or narcotic drugs, psychotropic substances or alcoholic drinks shall be liable to a prison sentence of eight to twelve weekends or to three to eight month-fines and shall in any event be disqualified from driving a motor vehicle or moped … for a period of one to four years.”

“A driver who refuses to comply with a law-enforcement officer’s orders to submit to a statutory test to verify the condition referred to in the preceding Article shall be punished in the same way as a person convicted of serious failure to obey orders, as provided in Article 556 of this Code.”

“Anyone … who resists an order of the authorities or their officers, or is guilty of serious failure to obey them in the exercise of their duties, shall be liable to a prison sentence of six months to one year.”

Under section 12(2) of the Traffic and Road Safety Act of 2 March 1990 and sections 21 to 24 of the General Implementing Regulations of 17 January 1992, tests of alcohol levels may be ordered by a police officer or a judicial authority. They usually consist in testing, by means of approved breath-testing device, the air exhaled. The person concerned can ask for a second test, which may be a blood, urine or other test.


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant, Mr M. Markovič, is a Slovakian national who was born in 1972 and lives in Púchov. He was represented before the Court by Mr R. Procházka, a lawyer practising in Bratislava. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 13 December 2004 the applicant’s wife initiated criminal proceedings against the applicant for bodily harm.

On 14 December 2004 the applicant’s wife left for Karlovy Vary in the Czech Republic. Without the applicant’s knowledge, she took with her their son.

On 20 December 2004 the Karlovy Vary District Court issued an interim measure awarding the applicant’s wife custody of the child.

On 26 July 2005 the Považská Bystrica District Police Office discontinued the criminal proceedings on the ground that no crime had been committed.

On 26 August 2005 the discontinuation of the criminal proceedings was confirmed by the Považská Bystrica District Prosecutor Office.

On 10 February 2005 the applicant lodged an action with the Považská Bystrica District Court petitioning for divorce and seeking determination of the rights and obligations in respect of their child.

On 23 March 2005 the applicant sought an interim measure regulating child contact arrangements.

On 11 April 2005 the applicant withdrew his submission.

On 17 May 2005 the first hearing took place. The District Court adjourned the hearing pending its receipt of the criminal file, the Karlovy Vary District Court’s file as well as the administrative file from the Karlovy Vary Social Affairs Office.

On 2 September 2005 the applicant sought an interim measure regulating child contact arrangements.

On 8 September 2005 the District Court issued an interim measure.

On 20 September 2005 the applicant appealed.

On 9 November 2005 the Trenčín Regional Court decided on the appeal.

On 1 February 2006 the applicant requested an expert opinion.

On 3 February 2006 the District Court appointed an expert psychologist.

On 3 May 2006 the District Court imposed a fine on the applicant’s wife for non-appearance before the expert.

On 26 May 2006 the applicant’s wife appealed against the fine. The Regional Court dismissed the appeal on 19 September 2006.

On 18 May 2006 the applicant’s wife challenged the expert on grounds of bias.

On 3 June 2006 the expert submitted the expert opinion.

On 3 November 2006 the District Court dismissed the objection of bias.

On 15 December 2006 the applicant’s wife appealed.

On 29 December 2006 the Regional Court dismissed the appeal.

On 22 March 2007 the second hearing took place. The District Court decided to obtain a second expert opinion from an expert in the Czech Republic.

On 18 April 2007 the applicant sought an interim measure regulating child contact arrangements.

On 26 April 2007 the applicant’s petition was dismissed.

On 14 May 2007 the applicant appealed.

On 28 May 2007 the Regional Court decided on the appeal.

On 6 June 2007 the applicant challenged the Czech expert on grounds of bias.

On 7 September 2007 the Karlovy Vary District Court dismissed the objection of bias against the expert.

On 29 June 2007 the applicant challenged the judge on grounds of bias.

On 12 September 2007 the Regional Court dismissed the objection of bias.

Between October 2007 and March 2008 the Považská Bystrica District Court requested the Karlovy Vary District Court on five occasions to inform it whether the decision to dismiss the objection of bias had become final.

On 17 March 2008 the District Court received information that the above decision had become final.

Between February 2008 and June 2008 the Považská Bystrica District Court asked the Karlovy Vary District Court on three occasions for information on the status of the expert opinion.

On 2 October 2008 the Karlovy Vary District Court delivered the expert opinion to the District Court.

On 13 November 2008 the District Court delivered the judgment.

On 23 December 2008 the applicant’s wife appealed.

On 18 February 2009 the applicant submitted his statement in response to the defendant’s appeal.

On 23 February 2009 the case was transferred to the Regional Court for a decision.

On 16 April 2009 the Regional Court decided to obtain a third expert opinion from an expert psychologist.

On 12 June 2009 another expert was appointed due to the heavy workload of the expert appointed on 16 April 2009.

The proceedings are pending.

On 22 May 2007 the applicant complained to the Constitutional Court about the length of the civil proceedings.

On 31 August 2007 the Constitutional Court

The Constitutional Court concluded that the District Court had handled the case in an appropriate manner.


Preliminary objection joined to merits (non-exhaustion of domestic remedies) and dismissed;Violation of Art. 6-1 in respect of length of proceedings;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1938 and lives in Orašje, Bosnia and Herzegovina.

On 25 November 1994 the applicant brought a civil action against the company V. (“the employer”) and the insurance company C.O. in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages for a work-related injury in the amount of 96,700 Croatian kunas (HRK).

The court held hearings on 2 June and 30 November 1999 and 21 February 2001.

In the period between May 1998 and October 2000 the applicant filed four rush notes urging the court to schedule a hearing and speed up the proceedings.

On 21 February 2001 the Municipal Court gave judgment dismissing the applicant’s claim. The applicant appealed on 6 March 2001 to the Zagreb County Court (Županijski sud u Zagrebu).

On 26 March 2001 the applicant applied to be exempted from the court fee for the appeal. Since it was the Municipal Court that was competent to decide on the applicant’s request for exemption, the County Court returned the case-file to it with a view to reaching a decision thereon. A hearing before the Municipal Court scheduled for 14 January 2003 was adjourned since the applicant had not received the summons due to his change of address. The next hearing scheduled for 3 June 2003 was adjourned owing to the illness of the judge assigned to hear the case. Lastly, a hearing at which the applicant gave a declaration of his income and assets was held on 13 May 2004. On 24 May 2004 the applicant was served with the decision in his favour exempting him from the court fee for the appeal. The case-file was then sent back to the County Court with a view to deciding on the applicant’s appeal.

On 5 April 2005 the County Court dismissed the appeal. The judgment was served on the applicant on 25 April 2005. No appeal on points of law (revizija) lay to the Supreme Court against this judgment (see paragraph 14 below).

Meanwhile, on 23 July 2002 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining about the length of the civil proceedings.

On 17 April 2003 the Constitutional Court dismissed the applicant’s complaint. It held that the delay was attributable to the complexity of the case and the applicant’s conduct. It found that the applicant had contributed to the length of the proceedings in that he had applied for exemption from the court fee only after he had appealed against the first-instance judgment.

The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:

“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...

(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...

(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”

On 6 November 1999 the Amendments to the Civil Procedure Act (Zakon o izmjenama i dopunama Zakona o parničnom postupku, Official Gazette no. 112/1999 of 29 October 1999) entered into force. They raised the statutory threshold for lodging an appeal on points of law (revizija) to the Supreme Court from HRK 3,000 to 100,000. That is to say that, from then on, for such an appeal to be admissible ratione valoris in non-commercial matters, the value of the subject matter in dispute had to exceed the last-mentioned amount. The Amendments also provided for their immediate application to pending proceedings except to those cases in which an appeal on points of law had already been lodged.


No violation of Art. 6-1;No violation of Art. 6-1+P1-1;Violation of P1-1;Just satisfaction rejected (out of time)

Mr Manlio Vendittelli, an architect, lives in Rome.

On 19 May 1986 the Rome municipal police (vigili urbani) sealed his flat, on the ground that he had infringed the town-planning regulations.

On 20 May 1986 the Rome magistrate (pretore) confirmed the sequestration (sequestro) and criminal proceedings were instituted against the applicant. Mr Vendittelli lodged three applications for release of his property from sequestration on 30 May 1986 and 5 and 26 June 1987 but they were dismissed on 12 June 1986 and 9 July 1987 for reasons of prevention and of preservation of evidence (per fini preventivi e cautelari).

On 25 July 1987 the applicant sought an early hearing, pointing to the damage caused him by his being unable to enjoy the benefit of his property. The trial was initially set down for 17 November 1987 but was postponed to 15 December 1987.

In a judgment delivered the same day, which was filed in the registry on 30 December 1987 and notified on 1 December 1988, the magistrate imposed on Mr Vendittelli, who was present when the judgment was delivered, a suspended sentence of twenty days’ imprisonment and a fine of ten million lire, without any entry in the criminal records, for having carried out works in his flat without a permit from the mayor (concessione edilizia).

The applicant appealed against this decision within three days of its delivery and filed his pleadings on 10 December 1988; the twenty-day period allowed for filing grounds of appeal began to run on the day of service of the judgment. The hearing in the Rome Court of Appeal began on 2 May 1989. It was adjourned on 8 January and 27 March 1990 - on the first occasion at the request of Mr Vendittelli, whose doctor had ordered him to rest for five days, and on the second occasion because his counsel was unable to attend. In the meantime, on 13 January 1990, the lawyer had already applied for the trial to be resumed.

In a judgment of 4 July 1990, which was filed in the registry on the same day and became final and therefore enforceable on 30 October 1990, the Court of Appeal held that the offence had been amnestied and the prosecution barred as a result of a presidential decree that had been issued on 12 April 1990. It did not, however, order that the property should be released from sequestration, nor was the judgment notified to the applicant, who had to obtain a copy from the registry on 5 December 1990. In the meantime, by a letter of 19 July 1990, Mr Vendittelli had applied for a hearing to be fixed.

On 19 November 1990 the file was sent to the magistrate for placing in the archives. In a letter of 10 December 1990 to the President of the Rome Court of Appeal, which was sent on 17 December to the magistrate’s court (pretura), the applicant again sought to have his property released from sequestration. He complained of the bad state of his flat.

On 17 December the registrar of the magistrate’s court sent the file to the magistrate for execution of the judgment, that is to say release from sequestration. On 31 January 1991 the magistrate held that he had no jurisdiction and ordered that the file should be returned to the Court of Appeal.

It arrived the next day. The central registry of the Court of Appeal recorded the point raised regarding execution (incidente di esecuzione) and on 11 February 1991 sent the file to the registry of the Second Criminal Division. On 10 April and 9 May 1991 Mr Vendittelli again sought to have his property released from sequestration.

In an order of 17 May 1991, which was filed on 21 May, sent to Rome Town Hall on 23 May "for execution of what was ordered in it" and served on the applicant on 3 June, the Rome Court of Appeal allowed Mr Vendittelli’s application and also noted that the mayor had issued a permit in the meantime.


Violation of Art. 6-1;Violation of Art. 13

The applicant was born in 1935 and lives in Beograd.

On 16 July 2001 the applicant, along with fourteen other individuals, instituted civil proceedings against his former employer seeking payment of certain sums of money.

On 13 August 2003 the Beograd Fourth Municipal Court declared the action inadmissible because the plaintiffs' lawyer had failed to submit a full list of plaintiffs and their addresses, a specification of their claims and a power of attorney.

On appeal, on 28 April 2004 the Beograd District Court quashed the first-instance decision and remitted the case. It found that the plaintiffs' lawyer had supplied the requested documents and that the case was suitable for examination on its merits.

On 16 November 2004 the applicant filed a complaint with the Supreme Court concerning the length of the proceedings. The Supreme Court forwarded that complaint to the president of the Beograd Fourth Municipal Court, who, having reviewed the case file, informed the applicant that the next hearing in his case was scheduled for 22 December 2004.

At the hearing held on that date, the court decided to split the claims made by the various plaintiffs into separate proceedings and another judge was appointed to hear the applicant's case. The newly appointed judge ordered the joinder of the applicant's case to the initial case file, but was unable to obtain that file until 11 June 2005.

The court apparently held hearings on 19 January, 11 April, 6 June, 3 July and 23 October 2006.

On 5 April 2007 the first-instance court gave judgment in the case and, according to the information provided by the parties to date, the proceedings are currently pending before the second-instance court following the applicant's appeal.

The relevant provisions of this legislation are set out in the V.A.M. v. Serbia judgment (no. 39177/05, §§ 70-72, 13 March 2007).

Sections 359, 360 and 361 of this Code define abuse of office (zloupotreba službenog položaja), judicial malfeasance (kršenje zakona od strane sudije) and official malfeasance (nesavestan rad u službi) as separate criminal offences.

Article 25 of the Serbian Constitution (Ustav Republike Srbije), published in the Official Gazette of the Socialist Republic of Serbia (OG SRS - no. 1/90), provided as follows:

“Everyone shall be entitled to compensation for any pecuniary and non-pecuniary damages suffered due to the unlawful or improper conduct of a State official, a State body or a public authority, in accordance with the law.

Such damages shall be met by the Republic of Serbia or the public authority [in question].”

This Constitution was repealed on 8 November 2006, which is when the “new” Constitution (published in OG RS no. 98/06) entered into force.

The substance of Article 35 § 2 of the new Constitution corresponds, in its relevant part, to the above-cited text of the previous Article 25.


CASE OF RADIO FRANCE AND OTHERS v. FRANCE

No violation of Art. 7;No violation of Art. 6-2;No violation of Art. 10

The applicant company has its registered office in Paris. The other two applicants were born in 1946 and 1957 respectively and live in Paris and Saint-Cloud.

In its issue no. 1272, dated 1 February 1997, the weekly magazine Le Point published an “investigation” headlined “Vichy: Around the Papon Case”. Several pages focused on Mr Michel Junot, under the headline “1942-1943 Revelations: Michel Junot, deputy to mayor Jacques Chirac on the Paris City Council from 1977 to 1995, was Deputy Prefect at Pithiviers in 1942 and 1943. In that capacity, he was responsible for maintaining order in the two internment camps in his district, Pithiviers and Beaune-la-Rolande”. The article included the following passages:

“'It has to be said that, all political consideration set aside, Vichy's civil servants gave a remarkable example of efficient, skilful and honest administration.' That good-conduct citation, awarded in 1981, does not come from Maurice Papon, who has now been committed to stand trial in the Bordeaux Assize Court for 'complicity in crimes against humanity'. Those are the exact words used in L'illusion du bonheur, a book published ... by Michel Junot, a deputy mayor when Jacques Chirac ran Paris City Council between 1977 and 1995, who knows his subject, since he was Deputy Prefect in Pithiviers, in the département of Loiret, in 1942 and 1943. In that capacity he supervised the maintenance of order in the camp of that town, where thousands of Jews were interned before being deported to Auschwitz. Unlike Maurice Papon – and this is a significant difference between the two cases – he did not order anyone to be arrested, interned or transferred to Drancy.

After the war Michel Junot enjoyed a brilliant career in France's highest administrative spheres before turning to politics. He was to become a member of parliament for Paris from 1958 to 1962, giving his allegiance to the CNI, which he never left. But it was on Paris City Council, where he served as mediator from 1977 to 1989 that he spent the longest part of his career. He is a former MEP and since 1978 has been the president of the Maison de l'Europe in Paris.

Until now, he has always maintained that the internment camps in his district, Pithiviers, and Beaune-la-Rolande some twenty kilometres away, were not under his control. His main duties were to inspect the local districts and to compile 'general and confidential information' files on local dignitaries. The Pithiviers camp? 'it was not under my jurisdiction. I never set foot in it' he told L' Express magazine in 1990.

An outright denial which is, however, inconsistent with several documents not previously published which Le Point has managed to obtain. Documents which clarify his field of activity.

... when he was appointed Deputy Prefect at Pithiviers on 9 June 1942 ... the camps at Pithiviers and Beaune-la-Rolande, originally intended for German prisoners of war, were already being used as internment camps prior to their inmates being deported, the first having left on 8 May 1942.

Michel Junot, who was to remain in office for exactly a year to the day, took up his post in Pithiviers on 24 August 1942, that is, less than a month before the departure, on 20 September 1942, of a fresh transport of Jewish deportees.

On that day a thousand detainees arrested during house-to-house searches in the Paris region, including 163 children under 18, were put on transport no. 35 and shipped off to Auschwitz via Drancy, the camp to the north of Paris.

On the eve of their departure, Michel Junot informed the Prefect of his concerns about maintaining order. 'I hereby inform you that I have just been notified of the entrainment of a thousand Jews from the Pithiviers camp tomorrow from 5 p.m. onwards at Pithiviers railway station, and that all the gendarmes in my district apart from one officer per squad are therefore required to assist with the entrainment ... .' ...

Two days later, on 22 September, Junot did not hide his satisfaction when sending the Prefect the following report: 'The day of 20 September 1942 went very smoothly throughout my district. The limited police presence planned for the afternoon of 20 September could not be deployed ... because all the gendarmes in the area, except for one officer per squad, were required for the entrainment of the Jewish detainees of the Pithiviers camp, whose departure I was suddenly notified of on 19 September at 3 p.m. The entrainment was to take place between 4 and 7 p.m. at Pithiviers station at the far end of the avenue de la République where the communists had called on ... the inhabitants of Pithiviers to demonstrate at 6.30 p.m., and I was concerned that some incidents might occur which could disrupt an orderly departure. But nothing of the sort happened and the town remained perfectly calm.' ...

Then, in a 'monthly report' drafted eight days later for his superiors, he scrupulously went over the events again.

On 30 September 1942 he reported in detail on the situation in the two 'internment camps', as he headed the third paragraph of his report. 'The Beaune-la-Rolande camp, which has been empty since the end of August, has been cleaned', Junot stated. 'The conditions there are now excellent. Two transports of Jews passed through and spent twenty-four hours there before leaving for Drancy. There are only about twenty detainees left at the camp, doing maintenance work.'

Michel Junot went on: 'The Pithiviers camp had been occupied since the end of August by 1,800 Jewish internees of all categories, French and foreign, men, women and children, some arrested during the August and December 1941 round-ups, others for having infringed the regulations of the occupying forces (demarcation line, wearing the star of David, etc.). All of them, except those married to Aryans and a few mothers of young children, were placed on trains bound for Germany on 20 September. Finally the last internees left Pithiviers in the evening of the 24th for Beaune-la-Rolande so as to clear the camp, which was due to receive communist internees. In fact this last Jewish transport spent only twenty-four hours in Beaune before being sent on to Drancy on the orders of the occupying forces.'

Drancy was the last stop in France before they were deported to Germany and the final solution: their physical destruction. ...

On reading this dry civil servant's prose, the Acting Prefect of Loiret, Jacques Marti-Sane, expressed his satisfaction in writing. He was pleased with the orderliness which had prevailed during the entrainment of the deportees, who until then had been crammed into huts surrounded by barbed wire and picked out by searchlight beams from the watchtowers.

In an internal memorandum dated 1 October 1942 – another document not previously published – the Acting Prefect informed the head of the first division of the prefecture, who was responsible for organisation and surveillance: 'The Pithiviers Deputy Prefect may be called upon to intervene in the matter of the camps in an emergency and on my express instructions. In any event, in his capacity as the government representative in Pithiviers, he has the right to monitor the proper functioning of the camps. Accordingly, it seems to me essential that all instructions sent to the camp commandant should be copied to the Pithiviers Deputy Prefect, so that he is not bypassed.' ...

No fewer than seven transports left from camps in Loiret between June and September 1942, the last one under Junot's responsibility.

In his October report, the Deputy Prefect expressed his concerns over the difficulty in maintaining order in Beaune-la-Rolande, which was full of 'French and foreign Jews who have contravened the regulations of the occupying forces (in particular, attempts to cross the demarcation line) and whom the German police have sent to the Beaune camp'. As a conscientious official, Michel Junot went so far as to suggest: 'If there is a further rise in the number of internees, we should make plans to strengthen the security arrangements.'

In the same report, he pointed out that communists were gradually replacing the Jews in Pithiviers, though there were still 1,574 of the latter on 30 October 1942 compared with 1,798 on 26 September.

'The presence of this camp inside my district means that the sub-prefecture is receiving a number of letters asking for leave to visit and even for people to be released. I have had some standard-form replies drafted explaining that I have no power to take such measures and that only the Prefect who took the internment decision has any authority in that respect. There is nothing to report from the camp, which is guarded most efficiently by a detachment of gendarmes', he wrote.

On the day of the liberation of Orléans, 16 August 1944, Michel Junot was present. He waved the tricolour from the balcony of Loiret's prefecture. And he stood at the head of the prefecture steps to welcome André Mars, the commissaire de la République sent by General de Gaulle. But that did not stop him being swept away in the subsequent purge. On 14 December 1945, ten months after awarding Junot a 'certificate of participation in the Resistance', de Gaulle signed a decree removing him from office. The hero of Free France was acting in response to a decision of the National Purification Commission based on a report from the Loiret departmental liberation committee stating that Junot was 'a typical careerist, devoid of all moral scruples, not to be allowed to hold any kind of public office'.

However, like many servants of the French State, Junot claimed to have been playing a double game. He explained that he had worked for a 'network' of the Central Intelligence and Action Bureau ... citing his activity on behalf of General de Gaulle's intelligence service in London under the Occupation and the medals he had received as a result. He must have been persuasive, because when peace returned he was to be found once more as permanent secretary to various Ministers, before becoming a deputy prefect again in 1956 and then prefect in 1957. ...”

An interview with Mr Junot was also published as part of the investigation. It included the following statement by him:

“... It was only when I reported to the Prefect of Loiret that I discovered the existence of the camps. At that time I did not know who was interned there. There had been communists, at the time of the breaking of the Germano-Soviet pact. And there were foreign Jews. We did not know their ultimate destination. We only knew that they were going to Drancy. Rumour had it that they were being sent to work in salt mines in Poland. We obviously knew that they were not going off on a pleasant holiday. But I did not learn of the existence of the extermination camps until April 1945 when the first deportees returned.

When I took up office, on 24 August 1942, all the transports except one had already left.”

When the interviewer asked Mr Junot if he thought this “renewed interest in those dark years” was “necessary for the young generations” he replied: “If Frenchmen in those days made mistakes, or sometimes committed war crimes, I think there is the discreet veil of history...”

At 5 p.m. on 31 January 1997 the third applicant, who is a journalist with France Info (a radio station controlled by the applicant company), broadcast the following report:

“According to the weekly magazine Le Point, a former deputy mayor of Paris supervised the deportation of a thousand French and foreign Jews in 1942. Michel Junot, now aged 80, was Deputy Prefect of Pithiviers at the time. He admits that he organised the departure of a transport of deportees to Drancy. Michel Junot, whom General de Gaulle removed from office at the end of the war, claims to have been in the Resistance and subsequently rose through the ranks of the civil service. In his defence, the former deputy mayor of Paris between 1977 and 1995 maintains, like Maurice Papon, that he knew nothing of the fate of the deported Jews and says that the discreet veil of history should be drawn over the crimes of those days.”

The way in which France Info operates is for the presenter to broadcast live, with two news bulletins and two news flashes per half-hour. He then breaks for an hour to update his information before going on air again. The above-mentioned broadcast was accordingly repeated by the third applicant and by other journalists sixty-two times between 6 p.m. on 31 January and 11.04 a.m. on 1 February, in either the same or a slightly different form. However, the broadcasts systematically specified that the report was based on an article published in Le Point. After 11 p.m., a number of news bulletins and flashes mentioned the fact that, “unlike Maurice Papon”, Michel Junot had never issued any orders for anyone to be arrested, interned or transferred to Drancy, sometimes adding that he was “responsible only for keeping order”.

On 1 February 1997, from 5.45 a.m. onwards, several news bulletins and flashes (broadcast at 6.45, 7, 7.15, 8, 8.15, 8.23, 8.30, 8.45 and 9.33 a.m.) mentioned that Mr Junot denied the allegations published in Le Point. According to the applicants, this point was made systematically after 11.04 a.m.

Mr Junot brought proceedings in the Paris Criminal Court against the second applicant, who is publishing director of the applicant company (the publisher), the third applicant and the applicant company as principal, accessory and civilly liable respectively for the offence of public defamation of a civil servant, contrary to sections 29, first paragraph, and 31, first paragraph, of the Freedom of the Press Act of 29 July 1881 (“the 1881 Act”).

In their defence, the applicants argued that the case under section 31 of the 1881 Act was inadmissible, because Mr Junot had been retrospectively stripped of his status as a civil servant at the time of the Liberation. They also contended that the prosecution's case against the second applicant was inadmissible: the disputed statement had been broadcast live and its content could not therefore be construed as having been “fixed prior to being communicated to the public” within the meaning of section 93-3 of the Audiovisual Communication Act of 29 July 1982 (“the 1982 Act”). Moreover, they submitted that the third applicant had acted in good faith. In that connection, they argued that public interest in the period of the Occupation had been revived by the news of the Papon trial; that the third applicant had been in possession of the article published in Le Point on the previous day along with three agency dispatches; that it had been reasonable to link the cases of Mr Junot and Mr Papon because both men had held high public office during the Occupation and had subsequently enjoyed brilliant political careers; that the use of the conditional tense and the absence of any personal comment about Mr Junot demonstrated the journalist's caution; and that France Info had reported Mr Junot's denials from 6 a.m. on 1 February onwards.

By a judgment of 25 November 1997, the Paris Criminal Court (Seventeenth Division) found the second and third applicants guilty as principal and accessory respectively of the offence of public defamation of a civil servant. It fined them 20,000 French francs (FRF) each and ordered them jointly to pay FRF 50,000 in damages. It also found the applicant company civilly liable and ordered by way of civil remedy that an announcement informing the public of the content of its judgment be broadcast on France Info every thirty minutes during a twenty-four hour period in the month following the date on which the judgment became final.

With regard to the defamatory nature of the disputed allegations, the judgment reads as follows:

“Mr Junot is alleged ... to have personally played an active role in the deportation of Jews in his capacity as Deputy Prefect of Pithiviers. This allegation, which undoubtedly damages the honour of the civil party, is moreover aggravated by the connection made between the case of Mr Papon – who has been committed for trial before the Gironde Assize Court to answer charges that he participated in crimes against humanity – and that of Mr Junot, with the suggestion that the latter was seeking to evade responsibility for the crimes committed during that period, over which he believes that 'the discreet veil of history should be drawn'.

The fact that it was specified that, 'unlike Maurice Papon', Michel Junot 'did not issue any orders for anyone to be arrested, interned or transferred to Drancy' in no way detracts from the seriousness of the charge levelled at the civil party; the same can be said of the use of the conditional tense throughout the broadcasts.

The allegations in question also cast doubt on Mr Junot's membership of the Resistance, which was reported as a mere 'claim' on his part, and suggested that he had been stripped of his status by General de Gaulle at the end of the war. These words also damage the civil party's honour and reputation.”

The court found that Mr Junot had never lost the rank of Deputy Prefect, and that he should be considered as having been acting in that capacity in Pithiviers at the time of the facts alleged against him and accordingly to have been exercising public authority. It found that section 31 of the 1881 Act was therefore applicable.

With regard to the good faith of the third applicant, the court found as follows:

“There being a presumption that defamatory statements are made in bad faith, it is for the defendants to prove their good faith.

It should first be noted that the repetition of defamatory statements already published in another medium does not in any way provide the person who repeats them with a defence; such journalistic practice is particularly to be deprecated, because it means that a statement that has not been verified by anyone subsequently reporting it acquires the appearance of an absolute certainty.

This is what happened with Mr Junot: having assumed that the enquiries made by his fellow journalists at Le Point were reliable, Bertrand Gallicher simply repeated the magazine's allegations against the civil party without checking them.

As evidence that he had carried out a serious investigation, Bertrand Gallicher told the Court that he had been in possession of the article published in Le Point on the previous day, and of three agency dispatches; however these dispatches, which simply quoted large sections of the magazine article, could not, without more, provide the journalist with a legal defence.

The journalist also produced the documents mentioned in Le Point: the Prefect's memorandum of 1 October 1942, Michel Junot's notes of 19 and 22 September 1942 and the monthly reports for September and October 1942; however, these documents did not give him grounds for asserting that Michel Junot, Pithiviers Deputy Prefect, had supervised the deportation of a thousand Jews or that he had admitted having organised the departure of a transport of Jewish deportees.

Neither the memorandum from the Prefect of Loiret dated 1 October 1942 specifying that the Pithiviers Deputy Prefect must be copied in on all the instructions given to the camp commandant, nor the memorandum of 19 September 1942 to the Prefect signed by Michel Junot and expressing his concerns about keeping order on 20 September 1942 in the event of communist demonstrations because all the gendarmes in the district had been drafted in to help with the 'entrainment of a thousand Jews', nor the report drawn up by Michel Junot on 22 September 1942 on the events of the day, which had been 'perfectly calm', prove that Michel Junot, Deputy Prefect, had played a personal part in the organisation and departure of that transport for Drancy. In fact, what these documents show is that he complained of having been notified only belatedly of the 'entrainment of a thousand Jews', that he did not receive copies of all the instructions sent to the camp commandant, a memorandum from the Prefect having been required to ensure that he was not 'bypassed' and that his concern was to maintain order outside the camps.

Michel Junot's monthly reports for September and October 1942 do not carry any more evidential weight in this respect; while the first mentions that most of the Jews in the Pithiviers camp had been 'entrained' on transports bound for Germany on 20 September 1942; while both report on the occupancy rate of the two internment camps situated in his district and thus establish his 'responsibility in principle' for the camps (using Mr Serge Klarsfeld's formula); while they keep the Prefect informed of relations with the German forces and the circumstances in which the anti-Jewish laws were being applied and certainly show that Mr Junot was performing his functions of Deputy Prefect under the Occupation with zeal and determination, and without being troubled by too many scruples, they nonetheless do not prove that he played a personal part in the deportation of Jews or that he organised the departure of a transport of Jewish deportees.

Turning to the other documents cited by the defence, namely a letter dated 19 September 1942 from the secretary-general for the police on the Conseil d'Etat to the Orléans Regional Prefect and the latter's reply dated 21 September 1942, and a memorandum dated 19 September 1942 from the Pithiviers Deputy Prefect to the captain of the gendarmerie and police superintendent, they cannot be regarded by the Court as having any evidential weight, since they are merely summarised on a plain sheet of paper.

In short, the documents in Bertrand Gallicher's possession did not give him grounds for alleging that Mr Junot was guilty of having participated in crimes against humanity.

Nor did these documents entitle the presenters who came on air after 0.33 a.m. on 1 February to repeat the allegation that the plaintiff had supervised the Jewish internment camps of Pithiviers and Beaune-la-Rolande and the maintenance of order in both camps.

Lastly, the testimony of Mrs Mouchard-Zay recounting the dramatic circumstances of the various round-ups of Jewish men, women and children, the conditions in which they were transferred to and arrived in the two camps of Pithiviers and Beaune-la-Rolande, and the dramatic change in public opinion which coincided with these events, does not prove that Mr Junot played any part in the organisation of these deportations.

While being aware of the professional constraints imposed by the need to break news rapidly, which is inherent in the very nature of radio, the Court notes that the journalists, far from merely reporting raw news objectively, endorsed the interpretation adopted by some of their fellow journalists, while going further by making a connection with the 'Papon case', no doubt with the intention of making the story more sensational.

The disputed broadcasts were therefore particularly careless and contributed to the spread of rumour by repeating defamatory allegations.

In relation to the allegation that Mr Junot was not a genuine member of the Resistance, the Court finds that the evidence produced by the defence is insufficient to cast doubt on his Resistance activities, which in any event have been vouched for by Jean-Claude Aaron, the leader of the Masséna network, by Colonel Rémy and by several people of Jewish descent who described the help he had given them during the Occupation.

For all of the above reasons, the Court is unable to accept that [the third applicant] acted in good faith.”

The court found the second applicant, in his capacity as publishing director, not liable for the first broadcast, which had been made live by the third applicant on 31 January at 6 p.m. It found, however, that the same statement had been repeated either in full or in condensed form by the various presenters who subsequently went on air, and considered that such “systematic repetition of the disputed statements” should be construed as “rolling broadcasting” within the meaning of section 93-3 of the 1982 Act. The court concluded as follows:

“[The second applicant], as publishing director, whose duty it is to control what is broadcast on the channel for which he is responsible, is therefore liable in law as principal for the offence of defamation.”

On appeal by the applicants, the Paris Court of Appeal (Eleventh Criminal Appeal Division) upheld the judgment of 25 November 1997 by a decision of 17 June 1998.

On the question of the defamatory nature of the offending bulletin's content, it ruled as follows:

“Words may be defamatory as the result of an insinuation, a question or an assertion. In addition, words must be assessed both in terms of their intrinsic meaning and in the light of their context.

Attributing to Mr Junot responsibility for supervising the deportation of a thousand Jews and organising their despatch to Drancy was plainly an attack on his honour and dignity. The defence arguments ... tending towards proving the truth of the facts is not relevant here, quite apart from the fact that no evidence to that effect has been adduced. Moreover, comparing Mr Junot's position to that of Mr Papon, who had indeed just been committed for trial in the Bordeaux Assize Court, also necessarily had a defamatory resonance.

The same defamatory classification must also be given to the passage '[Mr Junot] ... claims to have been in the Resistance'. Coming as it does between the reference to his being sacked by General de Gaulle and the comparison to Mr Papon, this can only insinuate that Mr Junot's assertion was false.”

On the question of good faith, the judgment said:

“Calumnious imputations are deemed to be in bad faith unless it can be established that they were made in pursuit of a legitimate aim, without any personal animosity, after a serious investigation and in temperate language.

There is no doubt that providing information about the attitude of administrative officials during the period of the Occupation, particularly as regards one of the main dramas of that time, the deportation and extermination of Jews, is perfectly legitimate.

Nothing in the file reveals any particular animosity on the journalist's part towards the civil party.

On the other hand, the preliminary investigation was singularly lacking in rigour. The civil party has rightly observed that Mr Gallicher began to broadcast his remarks at 6 p.m. on 31 January, in other words when the issue of Le Point dated 1 and 2 February had just come out.

In seeking to establish their good faith the defence cite three dispatches (AFP, AP and Reuters) which mentioned the article in Le Point and the content of a television programme in which Mr Junot had taken part. But the use of agency dispatches as one's main source, especially when they are purely repetitive and reproduce an article that has already been published does not constitute evidence that an attempt has been made, if not to conduct an investigation, then at least to check the information. In addition, the wholly gratuitous assertion that Mr Junot admitted his culpability is particularly reprehensible from both the criminal and the ethical points of view.

As regards the debate about whether Mr Junot had been a member of the Resistance, the Criminal Court rightly noted that the documents produced by the defence were not sufficient evidence to the contrary, whereas his participation has been attested to by the leader of the Masséna network, Jean-Claude Aaron, by Colonel Rémy and by a number of persons of Jewish origin who have drawn attention to Mr Junot's courageous attitude.

Moreover, the imputations contained in the message sent out were disproportionate in relation to the objective material that the accused maintained they had at their disposal, and here it should be noted, as clarification of this point may be helpful, that neither the use of the conditional tense pleaded in defence, nor the mention – very late in the day – of Mr Junot's denials, affect the gravity of the allegations made in dispatches broadcast several dozen times.

The content of the documents which the defendants learned of in Le Point is not convincing in terms of the construction that has been placed upon them if they are to be considered to reflect Deputy Prefect Junot's attitude at the time of the departure of the last transport of Jewish deportees on 20 September 1942.

The memo of 19 September from the deputy prefect to his prefect ... said: 'I have just been notified of the entrainment of a thousand Jews ... tomorrow', and he complained that he would therefore not have sufficient manpower to control a communist demonstration.

The same deputy prefect sent a memo, dated 22 September, informing the prefect that there had been no incidents on account of the demonstration and that the departure of the transport had been orderly.

The memo of 1 October 1942 from the Prefect of Loiret seems to echo his subordinate's concerns about being informed in stipulating that the deputy prefect 'in his capacity as the government representative ..., has the right to monitor the proper functioning of the camps'.

The reports sent by Michel Junot to his prefect in September and October 1942 describe the situation in the camps but do not reveal that he had any power over them or initiative regarding them.

The witness evidence heard in court did not provide any additional information about Mr Junot's duties.

As to the other documents produced in court, the Criminal Court rightly found, for reasons which the Court of Appeal endorses, that they did not appear to have been in the defendants' possession at the time when the statement was broadcast. Moreover, they do not necessarily weaken Mr Junot's argument, since they include one memo he wrote on 15 April 1943 to the Prefect of Orléans about improving the food and bedding in the camps. It ends with the following sentence: 'Although the management and administration of the camps does not form any part of my duties, I wish to bring this state of affairs to your attention ...'

All these texts portray an official dedicated to fulfilling his functions of maintaining public order and defending the political interests of the government. They do not support, without overstating the case, an assertion that Mr Junot supervised the camps or played a role in the deportation of the Jews.

The plea of good faith is accordingly rejected.”

The Court of Appeal noted the following in relation to the liability of the second applicant under section 93-3 of the 1982 Act:

“... This section is intended to absolve the publishing director of an audiovisual operator of liability for live broadcasts whose contents he is unable effectively to monitor and control. But this cannot be said of a rolling news bulletin whose content may be monitored and controlled by making the necessary arrangements to that effect. It is significant in this respect that such steps were taken from the morning of 1 February onwards, when the content of the offending statement was amended. Moreover, it would be stretching the concept of prior fixing to contend that it must involve mechanical recording. Content may also be fixed by a communication method based on repetition which effectively requires it to be fixed but not necessarily by mechanical means. Therein lies the difference from 'live' broadcasting involving no repetition.”

Moreover, by way of civil remedy, the court ordered the following announcement to be read out on France Info every two hours during a twenty-four hour period in the month following the date when the judgment became final:

“By a judgment of the Paris Court of Appeal (Eleventh Division – Section A), Mr Bertrand Gallicher, journalist, and Mr Michel Boyon, publishing director of Radio France, were each fined FRF 20,000 and ordered to pay damages for having defamed Mr Michel Junot, former Deputy Prefect of Pithiviers. This judgment follows the broadcasting, on 31 January and 1 February 1997, of news bulletins falsely alleging that Mr Michel Junot had played a part in the deportation of a thousand Jews and wrongly casting doubt on his membership of the Resistance.”

On the subject of the broadcasting of the above announcement, the judgment reads as follows:

“The Court is minded to uphold the order for the broadcasting of an announcement by France Info, which seems to be a remedy proportionate to the damage suffered but which the defence considers to be contrary to the provisions of Articles 6 and 10 of [the Convention] ...

The Court does not agree, because freedom of expression under Article 10 of [the Convention] may be subject to such restrictions as may be necessary ... for the protection of the reputation of others, which is the case here. It is true that the effect of this order, as indicated by the defence, will be to reduce the 'editorial space' available to France Info, but the written press are already in the same position and it is difficult to find a justification for discriminating between the various media in that respect.

Lastly, it would be wrong to deny the claimant, whose rights are equally important, the concrete remedy of broadcasting an announcement purely on the ground that the audiovisual medium is different from the traditional medium of the written press.

Further, nothing in the order to broadcast an announcement may be construed as infringing the right to a fair trial within the meaning of Article 6 of the Convention ...”

The applicants appealed on points of law. They submitted that the Court of Appeal had failed to apply the principle whereby the criminal law must be strictly interpreted, in that it had extended the scope of the presumption raised by section 93-3 of the 1982 Act (whereby the publishing director is liable as principal where “the content of the offending statement has been fixed prior to being communicated to the public”) to cover a “communication method based on repetition”. Relying in particular on Articles 6 and 10 of the Convention , they also complained of the order in the disputed ruling to broadcast the above announcement on France Info, the essence of their argument being that “there [was] no basis in legislation for the publication of a judicial announcement, which [was] nothing less than punishment for a civil wrong”.

By a judgment of 8 June 1999, the Court of Cassation (Criminal Division) dismissed the appeal for the following reasons, inter alia:

“... In finding the publishing director liable as principal for the offence created by section 93-3 of the Audiovisual Communication Act of 29 July 1982, the Court of Appeal both for its own and for adopted reasons ruled that the broadcasts containing the offending remarks had been, with the exception of the first bulletin, systematically broadcast on a rolling basis in exactly the same or in condensed form over a twenty-four hour period.

It further found that this type of broadcasting allowed the publishing director to exercise control over the content before it was broadcast to the public.

The court applied the law correctly in so ruling.

The content of an announcement which is broadcast on a rolling basis must properly be construed as having been fixed prior to being communicated to the public within the meaning of section 93-3 [cited above]. ...

... although the criminal courts may order the publication of their judgments by way of penalty only if they are expressly authorised to do so by law, they may issue such an order by way of a remedy at the request of the civil party. Such a remedy, when ordered in a form achievable under the technical constraints of the medium in which publication is ordered, [does not breach] the Convention provisions cited in the appeal.”

The announcement referred to in paragraph 12 above was broadcast on France Info between 31 July and 1 August 1999.

The relevant provisions of Chapter IV of the Freedom of the Press Act of 29 July 1881 (as amended) are as follows:

Section 29

“It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches, shouts, threats, written or printed matter, placards or posters.

It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact.”

Section 31

“Defamation by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, a representative or officer of the law, a minister of religion in receipt of a State salary, a citizen temporarily or permanently responsible for a public service or discharging a public mandate, a member of a jury or a witness on the basis of his witness statement [in speeches, shouts or threats made or uttered in public places or meetings, or in written or printed matter, drawings, engravings, paintings, emblems, images or any other written, spoken or pictorial medium sold or distributed, offered for sale or exhibited in public places or meetings, or on placards or posters on public display, or in any audiovisual medium] shall be punishable [by a fine of 45,000 euros].

Defamatory statements about the private lives of the above persons shall be punishable under section 32 below.”

Section 41

“The following persons shall be liable, as principals, in the following order, to penalties for offences committed via the press:

Publishing directors and publishers, irrespective of their occupation or title ...”

Section 93-3 of the Audiovisual Communication Act of 29 July 1982 states:

“In the event of one of the offences provided for in Chapter IV of the Freedom of the Press Act of 29 July 1881 being committed by an audiovisual operator, the publishing director ...shall be prosecuted as the principal offender provided that the content of the offending statement has been fixed prior to being communicated to the public.

When the ... publishing director is prosecuted, the maker of the statement shall be prosecuted as an accessory.