EUROPEAN COURT
OF HUMAN RIGHTS
In
the case of De Haes and Gijsels v. Belgium (1),
The
European Court of Human Rights, sitting, in accordance with
Article
43 (art. 43) of the Convention for the Protection of
Human
Rights and Fundamental Freedoms ("the Convention") and the
relevant
provisions of Rules of Court B (2), as a Chamber composed of
the
following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr J. De Meyer,
Mr I. Foighel,
Mr J.M. Morenilla,
Sir
John Freeland,
Mr A.B. Baka,
Mr K. Jungwiert,
Mr U. Lohmus,
and
also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 29 October 1996 and
27
January 1997,
Delivers the following judgment, which was adopted on the
last-mentioned
date:
_______________
Notes
by the Registrar
1. The case is numbered
7/1996/626/809. The first number
is the
case's
position on the list of cases referred to the Court in the
relevant
year (second number). The last two
numbers indicate the
case's
position on the list of cases referred to the Court since its
creation
and on the list of the corresponding originating applications
to
the Commission.
2. Rules of Court B, which came into force
on 2 October 1994, apply
to
all cases concerning the States bound by Protocol No. 9 (P9).
________________
PROCEDURE
1. The case was
referred to the Court by the European Commission
of
Human Rights ("the Commission") on 25 January 1996, within the
three-month
period laid down by Article 32 para. 1 and Article 47 of
the
Convention (art. 32-1, art. 47).
It originated in an application
(no.
19983/92) against the Kingdom of Belgium lodged with the
Commission
under Article 25 (art. 25) by two Belgian nationals,
Mr
Leo De Haes and Mr Hugo Gijsels, on 12 March 1992.
The
Commission's request referred to Articles 44 and 48
(art.
44, art. 48) and to the declaration whereby Belgium recognised
the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object
of the request was to obtain a decision as to whether the facts
of
the case disclosed a breach by the respondent State of its
obligations
under Articles 6 and 10 of the Convention (art. 6,
art.
10).
2. In response to
the enquiry made in accordance with Rule 35
para.
3 (d) of Rules of Court B, the applicants stated that they wished
to
take part in the proceedings and designated the lawyers who would
represent
them (Rule 31).
3. The Chamber to
be constituted included ex officio
Mr
J. De Meyer, the elected judge of Belgian nationality (Article 43
of
the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court
(Rule 21 para. 4 (b)). On 8
February 1996, in the presence of
the
Registrar, the President drew by lot the names of the other
seven
members, namely Mr F. Matscher, Mr I. Foighel, Mr J.M. Morenilla,
Sir
John Freeland, Mr A.B. Baka, Mr K. Jungwiert and Mr U. Lohmus
(Article
43 in fine of the Convention and Rule 21 para. 5) (art. 43).
4. As President of
the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting
through the Registrar, consulted the Agent of the
Belgian
Government ("the Government"), the applicants' lawyers and the
Delegate
of the Commission on the organisation of the proceedings
(Rules
39 para. 1 and 40). Pursuant to
the order made in consequence,
the
Registrar received the Government's and the applicants' memorials
on
26 June 1996. On 9 October the
Commission supplied him with various
documents
he had requested on the President's instructions.
5. In accordance
with the President's decision, the hearing took
place
in public in the Human Rights Building, Strasbourg, on
23
October 1996. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a)
for the Government
Mr J. Lathouwers, Deputy
Legal Adviser,
Head of
Division, Ministry of Justice,
Agent,
Mr E. Brewaeys, of the
Brussels Bar,
Counsel;
(b)
for the Commission
Mr J.-C. Geus,
Delegate;
(c)
for the applicants
Mr H. Vandenberghe, of the
Brussels Bar,
Mr E. Van der Mussele, of
the Antwerp Bar,
Counsel.
The
Court heard addresses by Mr Geus, Mr Vandenberghe and
Mr
Brewaeys.
AS
TO THE FACTS
I. Circumstances
of the case
6. Mr Leo De Haes
and Mr Hugo Gijsels live in Antwerp and work as
an
editor and journalist respectively for the weekly magazine Humo.
A. The action for damages against the
applicants
7. On 26 June, 17
July, 18 September and 6 and 27 November 1986
the
applicants published five articles (see paragraphs 19 et seq.
below)
in which they criticised judges of the Antwerp Court of Appeal
at
length and in virulent terms for having, in a divorce suit, awarded
custody
of the children to the father, Mr X, a Belgian notary
(notaire);
in 1984 the notary's wife and parents-in-law had lodged a
criminal
complaint accusing him of incest and of abusing the children,
but
in the outcome it had been ruled that there was no case to answer.
8. Mr X had
instituted proceedings for criminal libel against
those
who had lodged the complaint. The
Malines Criminal Court and
subsequently
the Antwerp Court of Appeal acquitted the defendants on
4
October 1985 and 5 June 1986 respectively. The Court of Appeal held,
inter
alia:
"At the present time the rulings that there was no case to
answer show that the allegations have been judicially held to
be
without foundation.
It
has not been proved, however, that the defendants acted in
bad
faith, that is to say with malicious intent, and they had
no
good reason to doubt the truth of the allegations.
Indeed, it was not only the defendants who were convinced that
the
allegations were true but also eminent academics, including
Professor [MA] ... and Dr [MB], a child psychiatrist, both of
whom were appointed as experts by the investigating judge,
Mr
[YE]...
At
the Criminal Court hearing on 6 September 1985 ... the
expert [MB] confirmed on oath the content of his report.
That expert, who can hardly be said to lack experience in the
field of child psychology and who studied all the evidence in
the
criminal case file, concluded on 28 August 1984 that the
children's statements were credible and put forward several
arguments in support of that view."
On
20 January 1987 the Court of Cassation dismissed an appeal
on
points of law brought by Mr X.
1. In the
Brussels tribunal de première instance
9. On 17 February
1987 three judges and an advocate-general of the
Antwerp
Court of Appeal, Mrs [YA], Mr [YB], Mr [YC] and Mr [YD],
instituted
proceedings against Mr De Haes and Mr Gijsels and against
Humo's
editor, publisher, statutory representative, printer and
distributor
in the Brussels tribunal de première instance
(court
of first instance). On the basis
of Articles 1382 and 1383 of
the
Civil Code (see paragraph 26 below), they sought compensation for
the
damage caused by the statements made in the articles in question,
statements
that were described as very defamatory (zeer lasterlijk en
eerrovend). They asked the court to order the
defendants to pay
nominal
damages of one franc each in respect of non-pecuniary damage;
to
order them to publish its judgment in Humo; and to give the
plaintiffs
leave to have the judgment published in six daily newspapers
at
the defendants' expense.
10. In order to safeguard
the principle of equality of arms and due
process,
the defendants asked the court, in their additional
submissions
of 20 May 1988, to request Crown Counsel to produce the
documents
mentioned in the disputed articles or at least to study the
opinion
of Professors [MA], [MC] and [MD] on the medical condition of
Mr
X's children, which had been filed with the judicial authorities.
They
gave the following grounds for their application:
"The issue arises whether the defendants, given the factual
evidence available to them, were entitled, within the limits
of press freedom, to publish
the impugned criticisms of the
functioning of a judicial body.
...
In
the disputed press articles the defendants relied, in
particular, on various medical reports, statements by the
parties and reports by a bailiff.
...
Nor
can it be denied that Mr X's libel action against his wife
was
dismissed.
Now
that it must be determined whether the defendants were
entitled to publish the impugned press articles on the basis
of
the information available to them, it is essential for the
proper conduct of the case that Crown Counsel, who is acting
in
the case under Article 764-4 of the Judicial Code, should
produce to the Court the documents cited as sources in the
series of articles. These
documents are to be found in various
court files.
Any
argument as to the lawfulness of the press criticism
presupposes
at the least that the Court should be able to study
the
opinion of Professors [MA], [MC] and [MD] on the treatment
of
X's children, which has been sent to the
judicial authorities.
The
opinion of those eminent professors of medicine was the
decisive factor which prompted Humo to publish the impugned
series of articles in such a forceful manner.
The
views maintained by the defendants and the language and
descriptions they used cannot be assessed in the abstract but
must be assessed in the light of these data, which go to the
substance of the case.
Thus the European Court held in the Lingens case (judgment of
the
ECHR of 8 July 1986, Series A no. 103) that the issue of
the
limits of the exercise of freedom of expression had to be
examined against the whole of the background:
'It must look at them in the light of the case as a
whole, including the articles held against the applicant
and the context in which they were written' (paragraph 40
of the judgment).
...
For
these reasons ... may it please the Court ... to hold that
it
is necessary, for the proper conduct of the proceedings, in
particular in the light of the principle of equality of arms
and
due process, to request Crown Counsel to produce the
documents cited in the disputed articles that appeared in the
magazine Humo, or at least to study the opinion of
Professors [MA], [MC] and [MD] on the medical condition of X's
children, which has been filed with the judicial authorities."
11. On 29 September 1988
the court ordered Mr De Haes and
Mr
Gijsels to pay each plaintiff one franc in respect of non-pecuniary
damage
and to publish the whole of its judgment in Humo; it also gave
the
plaintiffs leave to have the judgment published at the applicants'
expense
in six daily newspapers. Lastly,
it declared the action
inadmissible
in so far as it was directed against the other defendants.
The
court held, inter alia:
"The plaintiffs are obviously not challenging freedom of
expression and of the press as guaranteed in Articles 14 and 18
of
the Constitution and Article 10 para. 1 (art. 10-1) of the
[European Convention on Human Rights]. Equally, the defendants
cannot dispute that this freedom is not unlimited and that
there are certain bounds which cannot be overstepped. As has
already been set out ..., Article 10 para. 2 of the Convention
(art. 10-2) is no obstacle to bringing a civil action under
Article 1382 of the Civil Code where the press has acted
wrongfully.
Article 10 para. 2 of the Convention (art. 10-2) expressly
provides that freedom of the press 'may be subject to such ...
restrictions ... as are prescribed by law and are necessary ...
for the protection of the reputation or
rights of others ...
or
for maintaining the authority and impartiality of the
judiciary'. The need to
protect the plaintiffs' private life
(Article 8 para. 1 of the Convention) (art. 8-1), and more
specifically their honour and reputation, means, in the case
of
a press article, that the press must (1) strive to respect
the
truth; (2) not be gratuitously offensive; and (3) respect
the
privacy of the individual. These
criteria are taken up in
the
'Declaration of the Rights and Obligations of Journalists'
drawn up by the International Federation of Journalists.
In
the articles in question the defendants make frequent
references to the fact that the plaintiffs had allegedly erred
in
their judgment and had shown bias.
The defendants accepted
as
true, without more, the statement made by Mr X's former wife
and
her expert adviser (Professor [MA]), although it was
clearly shown in the reasons set out in the four judgments
given in the case why that statement was not reliable. More
seriously still, in the articles in question the defendants
expressed the opinion that the plaintiffs had to be regarded
as
biased, an opinion derived from the fact that they were said
to
belong to the influential circle of acquaintances of the
notary and his father, that one of them was the son of a
gendarmerie general who in 1948 had been convicted of
collaboration, that they allegedly had an extreme-right-wing
background and that they were friendly with each other.
The
plaintiffs' conduct was vigorously attacked by the
defendants in extremely virulent terms, and the defendants
clearly intended to present the plaintiffs in an unfavourable
light and expose them to public opprobrium. The defendants
sought to give their readers the impression that the plaintiffs
were siding with the children's father and that their judgments
were inspired by certain ideological views. To this end, the
defendants needlessly reminded their readers of the wartime
activities of the father of one of the plaintiffs.
The
plaintiffs rightly observed that they cannot simply be put
on
a par with members of the legislature or of the executive.
Politicians were elected and the public had to trust them.
Politicians
could, moreover, use the media to defend themselves
against any attacks.
Magistrats [a term which in Belgian law
covers both judges and members of Crown Counsel offices], on
the
other hand, were expected to discharge their duties wholly
independently and dispassionately.
Their duty of discretion
meant that they could not defend themselves in the same way as
politicians.
That being so, the defendants committed a fault in attacking
the
plaintiffs' honour and reputation by means of irresponsible
accusations and offensive insinuations. The orders sought by
the
plaintiffs will provide appropriate redress for the
non-pecuniary damage they have sustained ..."
2. In the
Brussels Court of Appeal
12. The applicants
appealed against that judgment. In
their
submissions
of 10 November 1989 they pointed out, among other things,
that
the sole purpose of the articles in question had been to criticise
the
functioning of the judicial system following the proceedings
conducted
by the respondent judges and Advocate-General concerning
possible
abuse and incestuous acts suffered by the children. At no
time
had they attacked the respondents' private life without reference
to
their part in the impugned decision.
Mr De Haes and Mr Gijsels
repeated
their offer to prove the facts described in the articles and
asked
the court to request Antwerp Principal Crown Counsel to produce
the
documents they had mentioned, at least those emanating from
Professors
[MA], [MC] and [MD] and those from the file on X's divorce,
in
particular certain reports and a letter to Principal Crown Counsel
from
Professor [MA].
13. The respondents
sought to have the judgment of the court below
upheld. In their submission, the applicants'
conduct had been all the
more
reprehensible and offensive as in an article that had appeared in
Humo
on 14 October 1988 (see paragraph 24 below) the applicants had not
only
maintained their accusations that the three judges and the
Advocate-General
were biased but also criticised by name, in
humiliating
terms, the judges who had given the judgment of
29
September 1988 (see paragraph 11 above).
14. On 5 February 1990
the Brussels Court of Appeal affirmed that
judgment,
holding inter alia:
"..., as submitted by the prosecution, no action must or can
be
taken on the appellants' application to the Court to
'request Antwerp Principal Crown Counsel to produce to the
Court the documents cited in the disputed articles that
appeared in the weekly magazine Humo', and in particular -
under Article 877 of the Judicial Code - 'all the documents
from the X file'.
As
already indicated, it is not the Court's task - nor is it
within its jurisdiction - to consider the case already
determined by the Antwerp Court of Appeal, on appeal from the
Youth Court. It follows
that the possible course - which is
purely discretionary (Court of Cassation, 2 June 1977,
Pas[icrisie] 1977, I, 1012) - provided in Article 877 of the
Judicial Code of ordering that the documents in question should
be
added to the file of the present case would serve no useful
purpose whatever.
The
appellants are accordingly bound to admit that they
commented on a court case and besmirched the honour of
magistrats without being in possession of all the necessary
information, and this makes the complete irresponsibility of
their malicious attacks even more flagrant.
They further aggravate their position by offering 'to prove the
facts referred to in the relevant articles by any legal means,
including an examination of witnesses, before the case is
decided' - an offer which not only must be rejected as being
out
of time but also clearly indicates - and this is the main
point to be considered here - with what lack of care and
information the articles in question were written and their
accusations made, before the appellants even had sufficient
evidence that they were true.
In
the present case the offer in question could not in any way
support the appellants' case; on the contrary, it clearly shows
that the original plaintiffs' arguments were well-founded and
it
also lacks the requisite precision.
It
is not sufficient for the appellants to offer - as they
nevertheless do - to prove that everything they have written
in
the past concerning 'the case' is the truth; it has to be
specified minutely, point by point, what precise and clearly
described fact - 'precise and relevant' in the words of
Article 915 of the Judicial Code - is being offered as
evidence. This is in order
to make it possible for the
opposing side to adduce rebutting evidence and to enable the
Court to assess the relevance and importance of the facts
adduced; the appellants did not even take the trouble to comply
with this requirement.
Furthermore, the Court already has before it all the
information necessary to enable it to decide, in full knowledge
of
the facts, whether there has really been defamation.
...
As
regards the merits of the case, the court below, for ...
relevant reasons that have not been refuted and with which this
Court agrees, held that the original claim against the
appellants was well-founded because the appellants had
undeniably committed a gross fault in casting serious slurs on
the
honour and reputation of the original plaintiffs by means
of
unjustified accusations and offensive insinuations.
Freedom of expression and of the press as guaranteed in
Articles 14 and 18 of the Constitution and Article 10 para. 1
(art. 10-1) of the [European Convention on Human Rights] is not
unlimited; certain bounds must not be overstepped and, as has
already been pointed out, it is even possible, under
Articles 1382 and 1383 of the Civil Code, to bring an action
for
damages where the press has acted wrongfully.
Moreover, in relation to the tort in question, Articles 443
et
seq. of the Criminal Code also refer to acts which may
injure a person's honour or expose a person to public contempt.
Defamation of public authorities is punishable in the same way
as
defamation of individuals. Such
defamation was precisely
what the original plaintiffs in this case complained of and
they undeniably constitute unlawful 'acts', as referred to in
Article 1382 of the Civil Code, 'that cause damage to another'.
There is no basis for the appellants' contention that
'Article 443 of the Criminal Code is the sole provision in
Belgian law which authorises the courts to restrict freedom to
hold opinions with a view to protecting the honour and
reputation of others; neither Article 764, 4, of the
Judicial Code nor Article 1382 of the Civil Code does so'.
According to that argument, the press, and it alone, is not
subject to the ordinary, general rule in Articles 1382 and 1383
of
the Civil Code, which impose a duty on 'everyone' to act
lawfully and make everyone responsible for any damage caused
through his own 'act', 'failure to act' or 'negligence'.
Under Article 10 para. 2 of the Convention (art. 10-2), freedom
of
the press may be subject to such restrictions as are
prescribed by law and are necessary, as in the instant case,
for
the protection of the reputation or rights of others or for
maintaining the authority and impartiality of the judiciary.
Pursuant to Article 8 para.
1 (art. 8-1) of the Convention for
the
Protection of Human Rights and Fundamental Freedoms, the
guarantee of respect for private life requires that press
articles should be truthful, must not be gratuitously offensive
and
must respect the privacy of the individual, criteria which
were taken up in the 'Declaration of Rights and Obligations of
Journalists' drawn up by the International Federation of
Journalists and approved by the journalists of daily newspapers
in
different countries of the European Community in Munich on
24
and 25 November 1971, where Belgium was represented by the
Professional Union of the Belgian Press.
The
appellants cannot in any way rely on Article 19 of the
UN
Covenant or of the Universal Declaration, since these
similarly make no reference to unlimited freedom of expression.
Furthermore, the appellants did not explain, and it cannot be
discerned, why the generally applicable concept of fault,
expressly provided in Articles 1382 et seq. of the Civil Code,
should be incompatible with Articles 8 para. 1 and 10 para. 2
of
the Convention (art. 8-1, art. 10-2) (whose precedence is
not
being called into question here) in relation to
restrictions on freedom prescribed by law and the protection
of
private life, which is at issue here; nor why only
journalists should not be subject to those provisions.
In
this connection, the Court wholly agrees with the relevant
reasons set out in the judgment of the court below, which it
adopts in their entirety.
...
Admittedly, the European Court of Human Rights held in the
Bruno Kreisky case that the Austrian journalist Lingens, who
was
concerned in that case, had attacked Mr Kreisky exclusively
as
a politician and consequently had not violated his right to
respect
for private life. In the instant
case, on the
contrary, that right was well and truly - indeed grossly -
challenged by the appellants.
The
words used and the insinuations and imputations made in the
articles and passages in question are extremely virulent and
dishonouring, since the original plaintiffs, referred to by
name, were accused of having been biased as senior magistrats,
and
it was gratuitously insinuated that they had links with the
VMO
[Vlaamse Militanten Orde] and that they came from an
extreme-right-wing background and belonged to the circle of
friends of the children's father - who was also, in the
appellants' opinion, extremely right-wing - so that the
judicial decisions made by the original plaintiffs in respect
of
the children's custody were only to be expected - all this
without any serious and objective evidence whatever being
adduced or existing to show that the accusations against these
magistrats had any factual basis.
...
The
appellants manifestly intended to give their readers the
impression that the judges and Advocate-General concerned had
sided
with one of the parties to the case and, furthermore,
that their judgments were inspired by certain ideological
views.
Additionally, they needlessly and in a quite uncalled-for
manner reminded their readers of the wartime activities of the
second respondent's late father, which the second respondent
had
absolutely nothing to do with and which - despite the
appellants' opinion to the contrary - belong exclusively to the
protected sphere of private life.
Even if the appellants believed that certain ideological views
could be ascribed to the respondents (views which they have
failed to prove that the respondents held), they cannot in any
event be permitted purely and simply to infer from those
views - even if they had been proved - that the judges and the
Advocate-General were biased and to criticise that bias in
public.
In
none of these suspicions or pieces of gossip directed
against the judges and Advocate-General who brought the
original action is there a shred of truth, and the applicants
even lied in their article of 6 November 1986 (p. 19) when they
stated that the case decided by those judges had been withdrawn
from them by the Court of Cassation, whereas they have now had
to
admit in their additional pleadings (p. 6) that
'Principal Crown Counsel at the Court of Cassation refused to
order that the case should
be transferred to another court
(under Article 651 of the Judicial Code)'.
On
6 November 1986 they announced: 'Last Thursday the Wim and
Jan
case took a dramatic legal turn.
On an application by
Principal Crown Counsel ...,
the Court of Cassation withdrew
the
X case from the Antwerp court and transferred it to the
Ghent tribunal [de première instance] in the hope that the
Ghent magistrats would adopt a less biased approach ...'
Admittedly, they went back on this point on 27 November,
writing: '... Our prediction of a fortnight ago that the
agonisingly slow progress being made in the Wim and Jan case
was
likely to leave the case stranded in the Antwerp courts has
come true. In the teeth of
all the evidence, the
Court of Cassation has held that the Antwerp judiciary cannot
be
accused of any bias in this incest case and that the whole
case can therefore continue to be dealt with in Antwerp ...'
False reports of this kind, however, caused the original
plaintiffs irreparable damage, since to be accused of bias is
the
worst possible insult that can be levelled at a magistrat.
The
exceptional virulence of the appellants' irresponsible
criticisms can probably be explained - but not excused - by
certain political quarrels (which, indeed, do not serve the
interests of justice), as was acknowledged by the appellants
themselves in the 12 February 1987 issue of Humo: '... If any
further proof were needed of behind-the-scenes intrigues in the
case of Mr X and of the fact that political allegiances are
definitely playing a role, this (premature?) leak to the press
is
one of the most persuasive pieces of evidence ...'
Because of the unacceptable way in which they were attacked in
the
impugned articles, the original plaintiffs were shown in
a
particularly unpleasant light and their honour and reputation
were seriously undermined by insulting statements which without
any
doubt went far beyond what the appellants described as
'their ability to take flak'.
The
appellants in fact nevertheless consider their aggressive
style and offensive disparagements justifiable in a little
paper like Humo, which they describe as 'clearly critical and
anti-bourgeois'.
However, although, when ruling on the defamatory nature of
contributions published in a magazine of this kind with a clear
critical stance towards bourgeois society, one must not apply
the
same criteria as when ruling on libellous articles in an
'ordinary' newspaper, it nevertheless remains true that even
in
an avowedly critical magazine certain standards must be
respected when criticisms are made, certain bounds must not be
overstepped and it is not permissible to publish false
information and unproved accusations with the clear aim of
humiliating and wounding particular persons, as to do so
undeniably amounts to an abuse of press freedom.
While people are certainly entitled to be 'anti-bourgeois' (?),
this does not authorise them to pour out pure gossip to the
public - however limited their readership - by writing, for
example: 'The Advocate-General [YD] has since very properly
been
removed from this case for having exceeded his authority'
(Humo, 17 July 1986, pp. 6 and 7).
Nevertheless, although the appellants have now, in their
additional submissions, backed down and, saying that their
earlier statement that the Advocate-General had been 'removed'
had
been a 'personal interpretation' of the 'fact that at a
given point he had ceased to sit', such an 'interpretation'
should impel these 'journalists' - however particularly
'personal' their style may be - to practise their profession
in
future in a less unscrupulous manner.
In
the 14 October 1988 issue of Humo (p. 15) - that is to say
during the present proceedings and although they had announced
in
the same short piece that they would be appealing - the
appellants made their position considerably worse still by
again accusing the original plaintiffs of bias and criticising,
in
similarly degrading terms, the judges who delivered the
judgment at first instance, who were mentioned by name.
This article stated, among other things: '... The
Vice-President, [YF], and the other judges, [YG] and [YH],
dealt with the case carelessly (sic) ... We wonder whether
their Lordships actually read Humo's submissions ... But at
no
time has Humo ever brought up anything to do with the
judges' private lives (sic) ...
Clearly, the Brussels judges
[YF], [YG] and [YH] did not manage to give judgment with the
necessary detachment and independence on their fellow judges
of
the Antwerp Court of Appeal. They
are thus adhering to the
line of biased judgments ...'
This could be interpreted as a particularly misplaced and
culpable attempt to influence [the members of this Court],
especially as the appellants predict, through counsel in their
pleading (p. 27), that no newspaper will be prepared to publish
the
present judgment, a step that has in any case not been
sought.
As
regards the question of the case having been dealt with
'carelessly', the appellants have still not grasped that
usually - and rightly - the courts must attach greater weight -
as
they did in the instant case - to the findings of expert
witnesses that the courts themselves have appointed and who
have no connection with the litigants and whose objectivity
therefore cannot be called in question by either of the parties
rather than - as the appellants do - to the parties' own
experts, whose investigations, assessments and findings,
however, form the main or even sole evidence on which the
appellants believe they are entitled to rely to make their
attacks.
As
is unfortunately only too often to be found, notably in
court cases, even excellent university professors and
specialists
- in the instant case no fewer than three on each
side - disagree among themselves and, particularly in the
fields of psychology and psychiatry, hold diametrically opposed
views - of which each claims to be 100% certain; this should
prompt everyone - particularly journalists - to refrain from
making accusations of bias - that is to say the most serious
of
all - against judges who have to make the final decision on
issues as thorny as the custody of children, where strong
passions are always aroused, and who must necessarily prefer
one
of the different versions put forward by the parties to the
proceedings.
In
the instant case the appellants dared to go one step further
by
maintaining, without a shred of evidence, that they were
entitled to infer the alleged bias from the very personalities
of
the judges and the Advocate-General and thus interfere with
private life, which is without any doubt unlawful.
Furthermore, the purpose of the present proceedings is not to
decide what ultimately was the objective truth in the case that
the
original plaintiffs finally determined at the time but
merely whether the comments in issue are to be considered
defamatory, which is not in the slightest doubt.
Although the appellants refused to acknowledge the fact,
magistrats cannot be unreservedly put on the same footing as
politicians, who can always adequately and promptly defend
themselves, orally or in writing, against reprehensible
personal attacks and are therefore less vulnerable than a
magistrat, who is neither able nor entitled to do likewise.
The
status of a magistrat is radically different from that of
all
other holders of public office and of politicians and is
in
no way based on privileges or traditions but on the fact
that it is necessary for the administration of justice, which
entails particular tasks and responsibilities (see the speech
delivered by F. Dumon, formerly Principal Crown Counsel at the
Court of Cassation, at the opening session of the new
judicial term on 1 September 1981, 'Le
pouvoir judiciaire,
inconnu et méconnu', p. 64).
Given the discretion incumbent upon them by virtue of their
office, magistrats cannot defend themselves in the same way as,
for
example, politicians, if certain newspapers, apparently
hungry for lucrative sensational stories, attack them and drag
them through the mud.
Purely political cases are precisely what most of the case-law
and
legal opinion cited by the appellants in this connection
relates to, however, and it is therefore not relevant to the
instant case.
Unlike a politician, a judge cannot discuss in public a case
pending before him with a view to justifying his conduct, so
that [the original plaintiffs'] failure to exercise their right
of
reply certainly cannot be held against them by the
appellants (see Ganshof van der Meersch, formerly
Principal Crown Counsel at the Court of Cassation,
'Considérations sur l'art de dire le droit', esp. p. 20); this
duty of discretion has again recently been referred to by the
Court of Cassation (Court of Cassation, 14 May 1987,
[Journal des Tribunaux] 1988, p. 58)."
3. In the Court
of Cassation
15. Mr De Haes and Mr
Gijsels applied to the Court of Cassation,
which
dismissed their appeal on points of law on 13 September 1991
(Pasicrisie
1992, I, p. 41).
16. In their first ground
of appeal, they alleged a violation of
the
right to an independent and impartial tribunal, relying, in
particular,
on Article 6 para. 1 of the Convention (art. 6-1). In
their
submission, certain passages of the Court of Appeal's judgment
raised
legitimate doubts as to the impartiality of those who had
written
it. This was true, for instance,
of the words "a little paper
like
Humo", the word "sic" in the extract from the article of
14
October 1988 (see paragraph 24 below) concerning the judgment of
29
September 1988 (see paragraph 11 above), a number of punctuation
marks,
such as the question mark after the term "anti-bourgeois", and
the
statement that the article of 14 October 1988 was "a particularly
misplaced
and culpable attempt to influence [the members of the
Court
of Appeal]". The applicants
also complained that due process had
been
disregarded in that, as they alleged, the Court of Appeal had
referred
to the article of 14 October 1988 of its own motion without
their
having been able to defend themselves on that point.
The
Court of Cassation rejected this ground, considering that
"it
could not be inferred from the mere fact that in their decision the
appellate
judges had shown that they preferred the arguments of one of
the
parties and disapproved of those of the other parties that there
had
been an infringement of the statutory provision and general
principles
relied on in this limb of the ground of appeal". As to the
article
that had appeared in Humo on 14 October 1988, the appellate
judges
had not referred to it of their own motion, since the
respondents
to the appeal on points of law had mentioned it in their
submissions
to the Court of Appeal.
17. In their second
ground of appeal Mr De Haes and Mr Gijsels
complained
of a violation of Articles 8 and 10 of the Convention
(art.
8, art. 10). In finding against
them on the basis of the general
concept
of fault in Articles 1382 and 1383 of the Civil Code, the
Court
of Appeal had, they said, made their freedom of expression
subject
to formalities, conditions, restrictions and penalties not
prescribed
by "law" within the meaning of Article 10 para. 2 of the
Convention
(art. 10-2) (first limb).
Furthermore, by holding that
press
articles must strive to respect the truth, must not be
gratuitously
offensive and must respect the privacy of the individual,
the
Court of Appeal had created restrictions which went beyond what was
strictly
necessary in a democratic society; public discussion of the
functioning
of the judicial system was of greater importance than the
interest
of magistrats in protecting themselves from criticism
(second
limb). Lastly, the evidence in the
file did not justify the
Court
of Appeal's finding that the articles in dispute had disregarded
the
aforementioned restrictions (third limb).
The
Court of Cassation dismissed this ground of appeal, holding
in
particular:
"As to the first limb:
In
reaching the conclusion that the appellants are liable for
the
consequences of their press articles, the Court of Appeal
based its judgment not only on the finding - partly cited in
this limb of the ground of appeal - that the appellants had
committed an unlawful act and that they 'did not explain, and
it
cannot be discerned, why the generally applicable concept
of
fault, expressly provided in Articles 1382 et seq. of the
Civil Code, should be incompatible with Articles 8 para. 1 and
10
para. 2 of the Convention (art. 8-1, art. 10-2)' but also
on
the undisputed finding, rightly raised by the respondents,
that the appellants had been guilty of defamation as defined
in
Articles 443 et seq. of the Criminal Code.
The
Court of Appeal's judgment sets out reasons (not challenged
in
this limb of the ground of appeal) for the finding that the
appellants had committed a fault within the meaning of
Article 1382 of the Civil Code.
This limb cannot justify quashing the judgment of the court
below and is accordingly inadmissible, as argued by the
respondents.
As
to the second limb:
Under Article 10 (art. 10) cited above, the exercise of the
right to freedom of expression may be subject to the
restrictions or penalties necessary in a democratic society for
the
protection of the reputation or rights of others or for
maintaining
the authority and impartiality of the judiciary.
When asked to punish a given abuse of freedom of expression
affecting members of the judiciary, the courts must endeavour
to
maintain a fair balance between the requirements of freedom
of
expression and the restrictions applicable under Article 10
para. 2 (art. 10-2) of the aforementioned Convention.
In
the instant case the Court of Appeal based its decision that
the
appellants had abused the freedom of expression secured in
Article 10 para. 1 (art. 10-1) of the Convention for the
Protection of Human Rights and Fundamental Freedoms not only
on
the need to protect the respondents' private life but also
on
the unchallenged grounds that the accusations made had not
been proved, the criticism had been directed against named
judges, the matters relied on were irrelevant to the decisions
that had been taken and the accusations had been inspired by
a
desire to harm the respondents personally and damage their
reputation.
In
holding, as appears from the text of its judgment, that,
'pursuant to Article 8 para. 1 (art. 8-1) of the Convention for
the Protection of Human
Rights and Fundamental Freedoms, the
guarantee of respect for private life requires that
press articles should be truthful, must not be gratuitously
offensive and must respect the privacy of the individual', the
Court of Appeal took the view that a balance had to be sought
between the interests of a free press and private interests;
it
did not thereby decide that the general interest of a public
discussion of the functioning of the judiciary was less
important than private interests, nor did it add any
restriction to the exceptions exhaustively set out in
Article 10 para. 2 (art. 10-2).
This limb of the ground of appeal cannot be allowed.
As to the third limb:
Regard being had to the foregoing considerations, the
third limb lacks any basis in fact."
18. In their third ground
of appeal the applicants complained of
the
Brussels Court of Appeal's refusal to take into consideration all
the
evidence that had been before the Antwerp Court of Appeal and to
allow
them to prove by any means the truth of their assertions. In
their
submission, Articles 6 and 10 of the Convention (art. 6, art. 10)
had
thereby been contravened.
The
Court of Cassation held:
"The Court of Appeal decided not to grant the appellants'
application for leave to prove the truth of their accusations;
in
particular, it refused to order that the files of the cases
which had given rise to the decisions criticised in the press
should be admitted in evidence.
It
based its decision not only on the grounds cited in the
ground of appeal but also on separate, undisputed findings:
that the appellants had admitted besmirching the reputation of
magistrats without being in possession of all the necessary
information, which in itself constituted a fault; that the
offer to bring evidence was out of time and ineffective; and
that the Court of Appeal had before it all the information
necessary to enable it to decide, in full knowledge of the
facts, whether there had really been defamation.
This
ground of appeal cannot justify quashing the judgment of
the
court below and is accordingly inadmissible."
B. The articles in issue
19. The judgments against
Mr De Haes and Mr Gijsels related to
five
articles that appeared in Humo (see paragraph 7 above). The first
of
these, published on 26 June 1986, included the following:
"...
Today, Thursday 26 June, the courts are due to rule in the
long-running case of a well-known Antwerp notary who has been
sexually abusing his two young sons. The notary himself comes
from a distinguished Flemish family with close links to the
most select financial circles in the country. All the
indications are that the reputation of the father and
grandfather count for more than the physical and mental health
of
the children. Up to now, the court
has rejected, without
batting an eyelid, all medical and psychiatric reports
unfavourable to the notary.
How
can this be? Louis De Lentdecker
has already written about
this case in De Standaard, albeit in veiled terms. However,
he
was promptly taken to task by the Antwerp Advocate-General
on
the ground that his report had 'seriously compromised' the
children's father. Yet De
Lentdecker had mentioned absolutely
no
names. For our part, we will also
refrain from mentioning
the
father's name or those of the two under-age children (for
convenience, we will call the three-year-old boy 'Wim' and the
six-year-old 'Jan' and give the family's surname as 'X'). For
the
rest, we have every intention of mentioning the other names
involved as this is not the first time that the Antwerp courts
have shown a lack of independence and given extremely odd
judgments.
This report is not for those of a sensitive disposition. We
put
the facts to a psychologist working in a centre for
psychological, medical and social therapy, a magistrat, a
paediatrician and two lawyers, none of whom has anything to do
with the case. Each of
them, independently of the others,
advised us to report on the case in the interests of the
children.
...
After Jan was born, things started to go wrong within the
family. The husband was
having affairs and even had another
home. Divorce proceedings
are filed in October 1983. The
mother is awarded interim custody of the children; the father
is
given fortnightly access. At the
end of 1983 the children
return home after spending the Christmas holidays with their
father; their mother finds them in a state of total exhaustion.
Her
paediatrician, Dr [ME], diagnoses them as having been
overtaxed. While playing,
the elder boy tells a story from
which it is apparent that his father has raped him. Dr [ME]
is notified and advises the mother to
consult a forensic
medical examiner.
The
same thing happens on 8 January 1984.
Following her paediatrician's advice, the mother tries to
consult a forensic medical examiner, but he advises her to see
a
general practitioner first. There
is no answer when she
rings Dr [ME], so she turns to the duty doctor, [MF]. He finds
that the elder boy has an 'irritation of the anus' and refers
the
mother to a paediatrician in Malines, Dr [MG]. He in turn
observes the following injuries to the elder boy: 'slight
anal fissure, pronounced redness around the anus, rectal smear
showing presence of sperm'.
That evening, at his request,
Dr
[ME], the paediatrician, re-examines the children and, given
the
seriousness of the situation, refers them to Dr [MH], of
the
Mental Health Centre.
On
the basis of these medical reports, amongst other things,
Judge [YI] of the Antwerp tribunal de première instance, acting
on
an urgent application, decides on 29 January 1984 to suspend
the
father's right of access.
However, on 31 January the Third Division of the Antwerp Court
of
Appeal restores the notary's right of access, although the
children are not to spend the night at his home and access has
to
take place in the presence of the grandparents.
The
nightmare begins, not only for the children, but also for
their mother.
...
On
4 February 1984, for the first time in four weeks, the
notary has an access visit.
At 10 o'clock in the morning he
picks up the children in Malines, returning them to their
mother at around 6.30 p.m.
In a report the mother, shocked and
bewildered, says: 'State of the children: distraught. Wim
(aged 3) lies down on the ground and sobs. Jan (aged 6) sits
down apathetically on a chair.
He has visible clinical
injuries: a very painful mouth, which he cannot close, severe
swelling of the lower lip and problems with his eyes; four of
his
upper teeth come out at once; he also has a swelling of the
neck below the left ear, a reddish irritation of the cheeks and
scratches on the left cheek.'
Her lawyer urges her to report
the
matter to the police at all costs, but she thinks there is
no longer any point. In her statement she writes,
despairingly, 'I did not want to, seeing that the gendarmerie
were so sympathetic to the family and that I had already
discovered from experience that the gendarmes did not take me
seriously where the children were concerned.'
...
The
mother's despairing protests are to no avail. On
18
February, 26 February and 3 March 1984, the father rapes his
children again.
Enough is enough. On 6
March 1984, at the request of
Malines Crown Counsel, Detective Sergeant Luc R. interviews
little Jan. A tape
recording of the interview is filed with
the
Malines Criminal Court. We have
seen the transcript of
this interview. In childish
words, but coherently and without
contradicting himself, Jan describes sexual acts performed by
his
father on him and on his brother, who is even younger. The
content of this interview is far too sensitive for us to
reproduce it here.
...
The
mother no longer has any alternative.
Since her urgent
request for a renowned expert to be appointed has twice been
rejected, she herself calls in the child psychiatrist [MA], a
professor at the Catholic University of Louvain. On 6 and
11
April he examines the children and finds that during the
weekend of 8-9 April the father has again ill-treated and raped
his
children. According to Professor
[MA]'s findings, the
children's story essentially corresponds to what is stated in
the
mother's complaint. Moreover, the
children reveal certain
details to him which even the mother has not mentioned and
which her children manifestly cannot have invented.
Professor [MA] concludes: 'We are convinced that the children's
visits to their father are manifestly likely to have an adverse
effect on their future development. It is already clear that
the
immediate effect of access is that the children are
extremely upset and disorientated; after the two days spent
with their father, they present as anxious and aggressive. If
these
visits continue, we fear that both children may develop
problems, in the nature of mental illness in the case of the
elder and, in the case of the younger, a tendency to regress,
with arrested development.
We therefore request that the
children should undergo a thorough psychiatric examination;
that all the parties, including the father, should be
interviewed; and that, pending this examination, the father's
right of access be temporarily withdrawn.'
On
28 May 1984 Professor [MA] sent a detailed report on the
case to Principal Crown Counsel [YJ] and the
Advocate-General [YD]. It
is an impressive document recording
the
results of a number of psychiatric examinations of the
children in the form of interviews (both with and without the
mother present). The
children were examined both immediately
after an access visit and at less stressful times during the
week. Professor [MA]
concluded: 'The two children confirm,
independently of each other, the various types of sexual abuse
which have been inflicted on them.' Could the mother have
coached the children in these stories? Professor [MA] says
'Jan's version of events always coincides with his mother's.
I
see this in itself as an indication that Jan's story reflects
real experiences. A child
of six does not in fact yet have the
intellectual capacity, in the context of a guided interview,
to
faithfully reproduce, exactly as it has been told to him,
a
story which he has been "fed".
Furthermore, there were times
when Jan replied to very specific questions with equally
specific answers, which he had never given his mother (and
which his mother had therefore never mentioned). Thus when
asked whether "he bites the willy when it comes into his
mouth", he answers, very specifically: "I can't, because he
(the father) puts his fingers between my teeth." I do not
consider that a six-year-old child is capable of inventing so
specific a response, nor do I believe that such specific
responses could have been "prepared" in advance by the
mother.'
On
22 June Professor [MA] sent a supplementary report to
Principal Crown Counsel [YJ] and the Advocate-General [YD].
In
it the child psychiatrist confirms his earlier findings with
the
aid of even more convincing arguments and again calls,
insistently, for a judicial investigation and a further
expert psychiatric report.
But to no avail. The
unthinkable
happens: three days later the Third Division of the
Antwerp Court of Appeal grants Mr X custody of his children.
The
court holds, inter alia: 'An expert opinion is not required
and, indeed, is not desirable in that the expert would
inevitably find himself faced with the issue of fault, which
must be left to the courts alone to decide.' Those responsible
for
this extremely odd judgment are [YA] (the presiding judge),
[YC] and [YB] (the other judges) and [YD] (the
Advocate-General).
...
In
July, pursuant to the custody award in his favour, the
notary has the children staying with him; they are again raped.
In
a tape-recorded interview Jan tells Professor [MA] that his
Daddy has done 'the same thing' again, that Daddy 'thumped' him
and
hit him on his tummy and that he wasn't allowed to tell
anyone about it. Jan
doesn't know how many times his father
has
raped him - 'several times, I can't count them'.
Professor [MA] sends his umpteenth letter on the matter to
Principal Crown Counsel [YJ], stating, without mincing his
words: 'In an emergency the State is bound to intervene under
section 36 (2) of the Child Protection Act ... It is
impossible and unacceptable for two children to remain exposed
to
an extremely dangerous situation as a result of a
court decision.'
All
Professor [MA]'s findings are subsequently confirmed in 'an
expert report' by Dr [MB], a child psychiatrist and
psychoanalyst appointed by the investigating judge [YE] of the
Malines tribunal de première instance. The following few
extracts from Dr [MB]'s report may suffice: '(1) After a little
embarrassment Jan nevertheless finds
it fairly easy to talk
about his experiences with Daddy.
His clearest memory is of
the
events of July 1984. He describes
how Daddy sometimes used
to
sit on him, how Daddy used to put his sexual organ into his
anus, or sometimes his mouth, and wee-wee. He says that Daddy
threatened him, saying that he would saw Grandma and Grandpa
in
half, and really hurt Jan, if he said anything about it all.
He
says that Daddy didn't act like that when Daddy and Mummy
were still together, Daddy just used to hit him; (2) Jan
describes these experiences fairly readily and there are no
contradictions in what he says.
However, he presents as
shocked and embarrassed when recounting certain things. He
blushes and sometimes protests vigorously that Daddy was
hurting him. He does not
give the impression of making things
up
or merely seeking attention.'
Psychoanalysis of Jan's emotional life reveals, moreover, that
the
little boy is constantly anxious and traumatised. The
findings concerning the younger child are similar. According
to
Dr [MB], 'His [Wim's] fantasies create a strong impression
that there has been sexual abuse by the father and that his
unconscious is trying to assimilate these uncomfortable
impressions.'
In
October little Wim is again interviewed by
two
detective sergeants and his (female) schoolteacher. The
interview takes place in Wim's usual classroom, in the presence
of
the headmistress. The child
repeatedly confirms what has
happened to him. The
interview was transcribed verbatim and
the tape filed as an exhibit at
the
Malines tribunal de première instance.
...
How
can a father reach the point of committing such atrocities
against his own children?
In his report Professor [MA] says:
'The problems between husband and wife became more serious
after Jan was born. It was
then that X, for the first time,
overtly displayed his sympathies with Hitler. Thus, for
example:
·
The family had to live according to Hitler's principles:
women do not count - at most, they are instruments of
procreation. Anyone who
fails to become an "Übermensch"
(superman) had better die.
An "Übermensch" can legitimately
lie
and be dishonest. [X] is in fact
awaiting the coming of
a
new Hitler. His whole way of life
is dominated by that.
·
The children were to be brought up in Hitler's doctrine.
They were made to give the Nazi salute; they were taught not
to
play but only to fight and make war.
The children were to
venerate their father just as the German people venerated
Hitler at the time; their mother is merely an intruder in the
X
family.
· Lastly, it is worth noting that Mr X has
also declared on
several occasions that he possesses supernatural powers and can
crush anyone who opposes him.
In particular, he says "We are
leeches, we squeeze someone like a lemon, then we drop them."
He
certainly feels very powerful. He
has also spoken to the
children on several occasions about his "supernatural powers",
saying that he was going to change Jan into a brown sheep and
leave him in a field and that he was going to change little Wim
into an owl. He also used
to talk to the children a lot about
skeletons and skulls. As a
result, little Wim once asked his
mother out of the blue "not to put him under the ground in a
box".'
Professor [MA] ends his remarks on the father thus:
'His manifest sympathies with Hitler and his regime, and his
fantasies concerning his own supernatural powers and
omnipotence reveal, at the very least, in my opinion, a
pathological personality. I
accordingly consider that a much
more thoroughgoing judicial investigation and
psychiatric report are imperative in this case.'
...
The
X family's almost daily contacts with the legal world are
not
enough to explain how he has remained almost immune. The
large network of contacts which the family has woven over the
years is proving useful in this respect, especially their
contacts in extreme-right-wing and/or
Flemish nationalist circles.
For example, members of the
X
family are militants in the Stracke Noodfonds, the
Marnixring, the Orde van de Prince, the Vlaamse Kulturele
Produkties (an offshoot of Were Di), the Nationalistich Jong
Studenten Verbond (NJSV) and the Vlaams Blok. It is a
well-known fact that the X family gives financial support to
the
VMO. In 1971 they helped create
the 'new' VMPO under
Bert Eriksson, and at the time of the VMO trials they launched
an
appeal through the Stracke Noodfonds for members to make a
financial contribution in support of 'dozens of young
Flemish people facing ridiculous penalties and fines'.
Witnesses confirm that the cellar of the X family's house is
decorated with Nazi swastika flags, the ideal décor for
nostalgic little 'brown' parties.
Equally remarkable are the
X
family's efforts in support of apartheid.
One of the members
of
the family was even a founder of the pro-South-African club
Protea. Why is this network
of contacts so important in the
notary's incest case?
Most of the judges of the Third Division of the
Court of Appeal, who awarded custody to the notary, also belong
to
extreme-right-wing circles. Judge
[YB] is the son of a
bigwig in the gendarmerie who was convicted in 1948 of
collaboration: he had, in close collaboration with the
'Feldgendarmerie', restructured the Belgian gendarmerie along
Nazi lines. [YB] is no less
controversial as a magistrat.
During the judicial investigation into the VMO training camps
in
the Ardennes, he managed, in the teeth of all the evidence,
to
sustain the theory that the photographs of the training camp
had
nothing to do with the VMO but came from German neo-Nazis.
Another judge in this incest case is [YA]; she is the President
of
the Antwerp Court of Appeal.
During the VMO trial, over
which she presided, the organisation was acquitted on the
charge of constituting a private militia. This judgment was
subsequently reversed by the Ghent
Court of Appeal.
And
then there is Principal Crown Counsel [YJ], whom
Professor [MA] has bombarded with reports denouncing the
sexual abuse of the children.
It just so happens that
Principal Crown Counsel [YJ] has the same political sympathies
as
the X family. He was one of the
founders of Protea but had
to
resign after a question was asked in Parliament. He is
still a member of the Marnixring and of the Orde van de Prince
in
Malines, with both of which the X family maintains very
special links.
Since the very beginning of the investigation the gendarmerie
too
have played a dubious role. The
abused children and their
mother have consistently been treated like dirt, whereas the
notary accused of incest and his father have been treated with
the
greatest consideration. Is it a
coincidence that the
X
family maintains contacts with several of the (present or
past) bigwigs of the gendarmerie: former
Lieutenant-General [ZC] (Protea and the Orde van de Prince),
General [ZD] (the Marnixring) and General [ZE] (the Marnixring
and
Orde van de Prince)?
...
The children are not in good
shape. They are receiving
treatment and, according to well-informed sources, are still
'at
risk'. There are only two possible
solutions. Either the
prosecuting authorities have the courage, in the light of
recent events and findings, to prosecute the notary or else the
Youth Court must begin new proceedings with a view to restoring
custody to the mother. This
last point is not unimportant
since Mrs X has been summoned to appear before the
Antwerp Court of Appeal on 26 June on the grounds that she has
twice attempted to keep the children with her at the end of an
access visit.
In
the meantime, the mother and her parents have been duly
acquitted on appeal in proceedings instituted against them by
the
notary for making a defamatory witness statement. They had
already been acquitted at first instance. There are only
two
possibilities: either the mother's complaint is defamatory
or
it is not, in which case the notary is guilty of incest.
There is no other possibility."
20. Mr De Haes and Mr
Gijsels published their second article on
17
July 1986. It included the
following:
"...
On
Tuesday 24 June Humo published in issue no. 2390 an article
that caused a sensation: 'Incest authorised in Flanders'. In
that article Mr X, a notary from a distinguished Flemish family
with close links to the highest financial circles in the land,
was
accused of having repeatedly raped and beaten his little
boys, Wim and Jan. Those
allegations were supported by a
number of medical and psychiatric reports. Despite the
evidence, the notary was awarded custody of the children.
In
the report, we paid due attention to the dubious role played
by
the gendarmerie and the network of extreme-right-wing
contacts maintained by the X family, whose tentacles have
reached the Antwerp law
courts. This network of contacts
is
principally centred on staunch brown organisations like the
VMO, Protea, the Stracke Noodfonds and the Marnixring. We also
showed how Judges [YJ], [YA] and [YB] - who saw to it that the
father gained custody - fitted into and around these shady
movements.
From the large number of letters we have received, it appears
that half Flanders is shocked by such warped justice. The same
question comes up again and again: what kind of a country are
we
living in? In the meantime, we
have obtained even more
information about what some of the most highly placed circles
have been allowed to get away with, hand in hand with their
lackeys in the courts and the gendarmerie.
...
Humo had hardly come off the presses when Mr X personally
telephoned one of the authors of the article to say, in a
threatening tone: 'I am not a pederast. I am not a paedophile.
The
time will come when you will apologise to me!!!' And then
he
hung up.
In
the course of the legal proceedings, Mr X has devoted
himself to making even more brutal intimidation attempts. For
instance, he assaulted one of his children's uncles in broad
daylight on the Meir in Antwerp.
When the children's mother
was
acquitted of libel, he hurled abuse at her counsel within
the
precincts of the Antwerp law courts and in front of other
people. His own counsel had to intervene to calm him down. One
of
the doctors who had found evidence of sexual abuse received
a
registered letter threatening him with criminal libel
proceedings unless he withdrew the findings in his examination
report. At least one other
doctor has been bombarded with
letters containing the crudest threats. The journalist
covering the Antwerp Court of Appeal hearing on 26 June was
pursued
by the notary when he went out for some fresh air
during a brief adjournment.
The reporter had no choice but to
escape by running between the fairground stalls of the
Whitsun fair.
The
management of Humo and of the Dupuis publishing house have
also been put under strong pressure. The X family were tipped
off
that an article was about to be published concerning the
incest case. What
happened? The printing was held up
for
hours, but the article was nevertheless published.
...
This kind of brutal pressurising seems to 'work' very well
within the system of justice.
After the article was published,
a
mass of new information came in from all sorts of quarters.
This unique incest case has been gathering notoriety for quite
some time, not only in the professional circles of
paediatricians and child psychiatrists but also in
Crown Counsel offices, the youth courts and children's refuges.
Thanks to the fresh data, we now have an even better picture
of
how often and how treacherously the courts have manipulated
the
case - with, up to now, only one apparent aim: to promote,
not
the welfare of the children, but that of the notary.
...
·
Likewise accepted were the results of an hour's
questioning by Detective Sergeants [ZF] and [ZG], during which
Jan
was once again forced to withdraw his accusations.
Louis De Lentdecker, who was on the spot when Jan came out,
wrote in De Standaard: 'He started crying, sobbing. He was
completely distraught.
Shaking with sobs, he said that he had
been questioned again by two men, that he had said that none
of
it was true because he had been afraid and that he didn't
want to go home to his father's but wanted to stay with his
mother. And he clung to his
(maternal) grandmother, crying his
heart out.' What
credibility can such an interview have?
One
of
the statements obtained under duress certainly does not fit:
according to [interview record] no. 2873, Jan stated that he
had
never seen his father naked. The
notary himself told
Louis De Lentdecker: 'It is said I used to stand around naked
in
front of them. There were evenings
when the children would
come rushing into the bathroom while I was having a bath. When
that happened, I would send them out straight away.'
Interviewed by [MN], a psychiatrist, the notary, anxious to
defend himself, was even more categorical: 'Prior to the
divorce, there were a few times when the children came upon X
naked in the bathroom. It
is understandable that the
children's attention was particularly attracted to the
genitals.'
Is
it also a coincidence that Detective Sergeant [ZG] and his
wife were the notary's guests for Easter lunch?
·
In the middle of 1984, following a private meeting with
Principal Crown Counsel [YJ] and the Advocate-General [YD],
Professor [MA], a well-known child psychiatrist, is informally
given the job of studying the criminal case file in detail. To
this end, Principal Crown Counsel's office sends him the
various typescripts and tapes of the questioning sessions.
Professor [MA]'s conclusions are contained in a number of
reports sent to Principal Crown Counsel and the
Antwerp Court of Appeal.
His provisional conclusions are
contained in a report of 22 June - just in time, as judgment
is
due to be given on 27 June.
Principal Crown Counsel [YJ]
knows that this supplementary report is being drafted, and what
happens? Out of the blue,
the Third Division of the
Court of Appeal sits two days early and awards custody to the
notary, 'without taking into account the documents filed by
Professor [MA] after the close of the hearing'. Was the
Court of Appeal informed that Professor [MA]'s report, which
was
very unfavourable to the notary, might be filed before the
close of the hearing, and is that why the Third Division sat
two
days early? What is more, not all
Professor [MA]'s reports
were filed after the close of the hearing. In fact, the
Third Division had at least three other reports by
Professor [MA] at its disposal, all of them to the same effect.
So
the judges are lying in their judgment.
On 6 November 1984
the
case again comes before the court, and this time the
division relies on a totally different argument in order to
dismiss Professor [MA]'s reports:
'Despite what he
(Professor [MA]) appears to believe, he has not been appointed
by
Principal Crown Counsel at this Court to assist the Court
in
any way in relation to this case.'
There are only two
possibilities: either Professor [MA] was given
Principal Crown Counsel's office's tapes so that he could study
them, or else he stole them and must be prosecuted and
convicted. If he has not
been appointed by the court,
Professor [MA] is not authorised to be in possession of
documents from the criminal file.
The courts are therefore
once again using dirty tricks to give a veneer of honesty to
an
inexcusable judgment.
·
On 26 June 1984, to general astonishment, the President
of
the Third Division of the Antwerp Court of Appeal, Mrs [YA],
together with her fellow judges [YB] and [YC], award custody
to
the notary who stands accused of incest.
However, he can
exercise his right of custody only under the supervision of his
parents. Here we find
ourselves faced with the most tortuous
reasoning: either the notary is to be wholly trusted as far as
his
children are concerned and he can have custody; or he is
not
to be trusted and the children are at risk with him.
Mrs
[YA], however, opted for a hypocritical judgment. If the
notary has to be supervised by his parents, he is obviously not
trustworthy. And yet he is
given custody. Can anyone make
head or tail of this? The
Third Division had already moved in
this direction. At the
hearing on 6 June the notary's parents
had
been asked whether they would be willing to take on this
onerous responsibility. To
which, of course, they said 'yes'.
Coincidence or no, it was the only time that the notary's
parents attended a hearing.
That fact makes it look very much
like a put-up job. Had they
been told in advance that this
question was going to be put to them?
·
The grandparents are not the only ones to have been given
information in advance. On
25 June, two days before judgment
was
officially given, the notary was waiting to pick his
children up from school. He
already knew that the
Court of Appeal was going to award him custody. How could that
be?
·
In the previous article, we mentioned the mother's
complaint that the detectives constantly twisted her words or
simply did not write down what she said. That is not all.
Statements by eyewitnesses have also been falsified ...
·
At a certain point the investigating judge in Malines,
Mr
[YE], a former CVP [Christian People's Party] councillor for
Willebroeck, appoints Dr [MB] as a (medical) expert. Dr [MB]
comes to the same conclusions as Professor [MA]: Jan and Wim
have been sexually abused.
Dr [MB] warns the
investigating judge unequivocally: 'It is important to avoid
aggravating the father's psychological problems and turning him
into a confirmed homosexual or pederast.' Despite this, on
6
November Mrs [YA] and her fellow judges [YB] and [YC]
confirmed the custody order in favour of the father. It is the
most cowardly judgment we have ever read. The children's
mother is blamed for not having filed a copy of the report by
the expert [MB], 'with the result that
it is not possible to
examine its contents'. But
how could the mother have filed
this report? She is not
even entitled to consult it, let alone
to
study it. In Belgium the law
prevents anyone from obtaining
any
information so long as a judicial investigation is under
way, because the investigation is secret. The Court of Appeal
expressly acknowledges in its judgment that the
judicial investigation is still under way, and yet Mrs [YA]
blames the mother for failing to file this report! When it is
for
Principal Crown Counsel's office to file an expert's
report! Despite the fact
that the investigating judge [YE] has
been in possession of Dr [MB]'s report since the end of August,
we
read in the Third Division's judgment that
'Principal Crown Counsel's office did not consider it necessary
to
inform the Court of this fact'.
Why did
Principal Crown Counsel's office
refuse to forward this crucial
expert report to the Court of Appeal? Because it was too
unfavourable to Mr X?
However that may be, Mrs [YA] put her
name to a mass of legal nonsense.
· On 5 September 1984 Louis De
Lentdecker publishes his
first article on the incest case under the title, 'Justice goes
mad. A young woman fights
for her children'. Very shortly
afterwards the Advocate-General [YD] summons De Lentdecker by
telephone. As De Lentdecker
comments in his second article,
on
28 September, 'It is rare for a judge or Crown Counsel to
summon a journalist to an interview in connection with pending
legal proceedings.'
The
following extract from De Lentdecker's article is also
telling: 'When I asked why the court had not appointed
three experts to look into the case from the psychiatric,
medical and forensic points of view, the Advocate-General
replied, and I quote his exact
words, "These kids (i.e. Wim and
Jan) have already had to drop their trousers too much for all
sorts of examinations. The
best thing is to leave them in
peace." When I
retorted that the court had, however, appointed
an
expert (De Lentdecker is referring to Dr [MB]) and that his
report had barely been raised if at all, presumably because it
contained damning findings as regards the father, the
Advocate-General replied: "It is not true that the
expert report ordered by the court damns the father. In any
event, I do not know what it says.
Besides, the man's findings
are
not valid - he completed his examination in five days."'
What crass bias on the part of the Advocate-General [YD] is
revealed in those quotations.
And what on earth could have
made him take a journalist to task in this way? That is not
one
of his duties. The Advocate-General
[YD] has since very
properly been removed from this case for having exceeded his
authority and he has been replaced by the
Senior Advocate-General [YK].
...
There are also a few positive developments. On
Thursday 26 June the Ninth Division of the
Antwerp Court of Appeal upheld the October 1985 judgment of the
Malines Criminal Court, which had acquitted the mother on the
charge of removing the children from the notary's custody. The
important thing about that case, apart from the mother's
acquittal, is that the court duly took into account the
evidence of Professor [MA] and the court-appointed expert [MB],
who
both testified under oath at the hearing that the children
had
indeed been sexually abused. The
bench in this case was
composed of judges other than [YA], [YB] and [YC], and
Principal Crown Counsel was not [YJ]."
21. The applicants
published their third article on
18
September 1986. It contained the
following:
"...
In
this article we reproduce photographs, drawings and
quotations which we would have preferred not to publish. Most
of these documents have been in our
possession from the outset,
but
we did not want to run the risk of being accused of
sensationalism. The courts
are likewise in possession of this
irrefutable evidence, and it is precisely because the
Antwerp Court of Appeal and Youth Court refuse to have regard
to
it that we find ourselves obliged to publish it.
The
astonishment, anger and incredulity our readers feel are
fully shared by us.
Astonishment that such a thing is
possible; anger because it is allowed; and incredulity because
the
ultimate guarantee of our democracy, an independent system
of
justice, has been undermined at its very roots. This is
why, for the sake of the children Wim and Jan, we are
publishing evidence which we would rather have left to rot
under lock and key in cupboards in our archives.
Guy Mortier
Editor
On
Tuesday 2 September a Youth Court judge, Mrs [YL], made an
interim order in the scandalous incest case involving an
Antwerp notary. As everyone
knows, this tragedy is being
played out in the most highly placed financial spheres in the
country, against the background of extreme-right-wing circles
in
Flanders. The Antwerp notary is
accused by his wife of
having sexually abused his two little boys, whom we are calling
Wim
and Jan, of having physically ill-treated them and of
continuing to ill-treat them. The Youth Court judge has now
decided that the father should be awarded custody of his
children, or rather should retain custody, since he had already
been given it, in defiance of any concept of justice, by the
Antwerp Court of Appeal.
Yet the mother, who has not been
accused of anything, and who has already been twice acquitted
on
a charge of libelling the notary, is not allowed to see her
children more than once a month.
...
This inexplicable judgment once again stands reason on its
head. The case file is
getting thicker and thicker and
contains
numerous medical certificates, horrifying drawings by
the
children of being raped by their father, photographs of
anal irritations and marks left on the children's bodies after
blows from a cudgel - not to mention detailed psychiatric
reports on the children: one by the court expert [MB], five by
Professor [MA], an eminent Louvain paediatrician, and two,
including a very up-to-date one, by Professor [MC], who
recently examined the children in the greatest secrecy. Each
time, it emerges clearly that the two children have been
sexually and physically abused.
Why does the Youth Court judge
[YL] refuse to take account of this solid evidence in her
judgment, especially as not one of the medical reports
questions that there has been physical abuse? Does Mr X's
family really have so much influence and money that the Antwerp
courts are incapable of giving an independent ruling?
It
is not for the press to usurp the role of the judiciary, but
in
this outrageous case it is impossible and unthinkable that
we
should remain silent. Up to now,
we have dealt with this
incest case as sensitively as possible. Now that the courts
have definitively taken a wrong turning, we feel obliged, in
the
interests of the children, to reveal more details, however
horrible and distasteful they may be for the reader.
...
On
what evidence did the Youth Court judge [YL] base her
interim order? According to
an article (the first of several)
in
Het Volk, the source of which appears to be the notary
himself, [YL] allegedly based the interim order on a report by
three experts she had appointed.
According to Het Volk, that
report makes it clear that 'there can never have been any
question of any sexual abuse'.
The least that can be said is
that Het Volk has been misinformed (indeed, it has since gone
back on its first article).
What exactly is the truth?
Three court-appointed experts, Dr [MI], Dr [MJ] and Dr [MK],
had
Wim and Jan for observation during the holidays at the
Algemeen Kinderziekenhuis Antwerpen ("the AKA" [a
paediatric hospital]).
Their report is not yet ready and
therefore has certainly not yet been filed. The
Youth Court judge and the parties have nothing in writing from
them. The Youth Court judge
[YL] has therefore rushed a
decision through even before the experts' report is finished.
This procedure in itself appears extremely suspect. But what
is
worse is that it leaves the mother completely defenceless.
Since there is nothing official on paper, she cannot appeal
against the Youth Court judge's decision.
Secondly, contrary to what is suggested, the three doctors
referred to are not independent experts. Dr [MJ] and Dr [MK]
work under Dr [MI] at the AKA.
It is therefore difficult for
them to challenge their superior's findings. At the AKA these
two
doctors are not known for being the kind to put a spoke in
their boss's wheel.
Thirdly, there is the question whether it was advisable to put
Dr
[MI] in charge of the team of experts.
We do not wish to
prejudge the report before knowing what it contains, but is it
not
singularly unfortunate that a person belonging to the same
ideological camp as the extreme-right-wing notary should have
been appointed in this case, which is already so politicised?
Dr
[MI] is married to the daughter of [ZH], who was a governor
during the war. Readers
will also remember that Mr X's family
has
a very close relationship with 'blackshirt' circles.
Dr
[MI] also boasts, in front of hospital staff, that he
supports the apartheid regime in South Africa, just like Mr X's
family. This is the same Dr
[MI] who, some time ago, treated
a
maladjusted child by enrolling him in the extreme-right-wing
Vlaams Nationaal Jeugdverbond (VNJ), just to teach him some
discipline. Everyone is
entitled to their political opinions,
but
in this sensitive case it would have been reassuring to see
a
less politically charged expert appointed.
Just as inexplicable is the fact that the Youth Court judge
[YL] keeps Mrs [ZI] on as the Child Protection Department
officer attached to the court.
Judge [YL] has to rely very
considerably on the child protection officer for all her
information, and therefore also for her view of the case; yet
we
have already disclosed that Mr X knows Mrs [ZI] well.
Moreover, that fact appears in an interview record dated
6
October 1984. In this interview
the notary repeatedly cites
Mrs
[ZI] as one of the people whom the courts can ask to
testify to his basic kindheartedness. Is it really impossible
to
remove from this case everyone who has ideological or
friendship ties with the X family?
...
How
does the notary defend himself against his children's
accusation that in May he beat Wim with 'a spiked cudgel'? In
a
very confused way. It emerges from a transcript of the
children's story and a bailiff's report that he beat Wim on
14
May. That day, the notary and his
little boys were visiting
Dr
[MJ]. In the presence of his
father, Wim told the doctor
some very compromising things about him. As soon as they got
home, the father started beating Wim. The next day, the notary
went to see Dr [MJ] on his own and, strangely, said not a word
about his son's injuries.
It was not until several days later,
when the photographs were sent to the relevant authorities,
that he came up with a story about Wim having fallen
downstairs. Why did he not
say this at the outset? The
children confirm to Professor [MC] that Wim was beaten and that
he
did not fall downstairs at all. So
the notary changes tack.
On
2 June he calls in a bailiff who is a friend of his and who
draws up a report according to which the children deny
everything. Strangely, it
is not the bailiff but the father
himself who questions his little boys. So this report is
worthless.
On
5 June the notary comes up with yet another idea. A Dr [ML]
issues a certificate stating that he can find no injuries.
Which is quite possible, since three weeks have gone by in the
meantime. Why does the
notary have the fact that there are no
injuries certified three weeks later, when he originally stated
that the injuries were caused by a fall downstairs?
The
latest version is that Jan hit Wim.
This figment of the
imagination comes from the Youth Court judge herself. There's
bias for you.
...
The
ill-treatment which occurred in May was not an isolated
incident (as we have already indicated on several occasions).
As
early as 10 January 1984 Dr [MG] sent the following results
of
his examination of four smear tests to a forensic
medical examiner, Dr [MM]: 'Apart from amorphous matter,
epithelial and mucous cells, I observed, in three out of the
four samples, a structure with a triangular head on a long,
more or less straight tail, which matches the description of
spermatozoa. I observed the
presence of one such structure in
two
of the three samples, and two in the third.' Other doctors
also made the same findings.
Subsequently, Professor [MA] and
the
court expert [MB] reach the conclusion, independently of
each other, that Wim and Jan have been sexually and physically
abused. The latest report
is by Professor [MC]. In order to
supplement an earlier report, this expert examined the children
on
twelve occasions between 1 August 1985 and 31 May 1986 - the
elder without his mother present, Wim normally in his mother's
presence because at the beginning it was practically impossible
to
examine him without her. As
Director of 'Kind en Gezin in
Nood' ['Children and Families in Need'], one of the departments
of
Leuvense Universitaire Ziekenhuizen
[Louvain University Hospitals], Professor [MC] is one of the
principal authorities in the field. In order to remain
entirely uninfluenced in his work, he expressly decided to
refuse any form of payment.
His report contains the most
horrific findings.
According to it, the children have been
beaten not once but several times with a spiked cudgel. This
abuse is, moreover, inflicted as a form of ritual. Candles are
lit; sometimes, the father wears a brown uniform and the cudgel
has
a 'sign of the devil' on it.
Through the children,
Professor [MC] was also able to discover where the father took
his inspiration from. He found the sign of the devil in
Volume I of the Rode Ridder ('The Red Knight')(!), entitled
De
barst in de Ronde Tafel ('The cleft in the Round Table').
The
sign is accompanied by the following text: 'This is the
symbol of the Prince of Darkness, an unknown magician and
Grand Master of Black Magic!
Even before the Round Table was
created, he went away and no one knows where he is today! He
devotes his exceptional knowledge and power to everything that
is
evil and negative! His sole
objective is to sow confusion
and
destruction. He is a symbol of the
violence which reigns
in
these times over humanity and justice!'
Professor [MC] does not mince his words in his report: 'By way
of
conclusion, it can be said that Wim is the victim of
repeated sexual and physical abuse and that his brother Jan is
subjected to the same abuse to a lesser degree but, under very
strong psychological pressure, is becoming increasingly
psychologically disturbed, hence the drop in his school marks
and
the occasional inconsistencies in what he says in different
interviews. In the interests of both children a court order
should be made immediately to remove them completely and
permanently from their father's orbit. Any further delay would
be
medically unjustifiable.'
Appended to the professor's two reports are very precise
descriptions of the children's injuries, the statements made
by
the children, sinister drawings by Wim and Jan of sex scenes
with their father (often represented with horns), and
photographs. Both reports are in the hands of the
experts
[MI], [MJ] and [MK]. Judge
[YL] also has them. Just as she
has
Professor [MA]'s five reports and the report by the
court expert [MB]. How can
Mrs [YL] maintain that there is no
evidence? Do the children
have to be beaten or raped before
her
eyes before she believes it?
...
Similar accusations by the children against their father were
also subsequently recorded by Professor [MA], the
court expert [MB], the two detective sergeants [ZF] and [ZG]
in
the presence of Wim's schoolteacher, and, lastly,
Professor [MC]. On the
other hand, there is one retraction of
the
statements in an interview (of which there is only a
single, confused minute on tape) carried out by
Detective Sergeant [ZJ], since suspended, who intimidated Jan
with a weapon; one in an interview with
Detective Sergeants [ZF] and
[ZG], at the end of which Jan
broke down completely (as Louis De Lentdecker happened to
witness); and one retraction made by Jan to Professor [MC], in
his
father's presence.
The
crucial question remains: is any mother capable of
inventing all this? Even
more to the point, would
two
young children - they will be 6 and 9 respectively this
month - be capable of keeping up their accusations for over
two
and a half years if those accusations had been invented and
forced on them by their mother?
And when could the mother have
coached her children in accusations such as these?
It
should not be forgotten that since 25 June 1984 the notary
has
had custody of the children by order of the Third Division
of
the Antwerp Court of Appeal. For
more than two years the
father has had a great deal more influence over these children
than their mother, who has the right to see her children only
from time to time - a right of access with which the notary has
frequently not complied.
What is more, if the notary has such a clear conscience, why
does he declare war on anyone who puts legal or other obstacles
in
his path? Why has he already
threatened so many people in
connection with this case?
In this article we shall mention
only the most recent threats and acts of intimidation.
...
The
case file also contains the report of an interview
Professor [MA] had on 23 May 1984 with
Principal Crown Counsel [YJ] and the Advocate-General [YD].
We
realise how delicate it is to quote from letters that were
not
intended for publication, but needs must when the devil
drives. Professor [MA]
describes how the interview went:
'After I had discussed my problem and my request, namely that
three experts should be appointed, I quickly realised that
Principal Crown Counsel wished to proceed with the case
impartially and without prejudging the issues, but that Mr [YD]
already had a very clear idea of what should be done - "The
children's story was made up, perhaps fed to them by the
mother, and the children should be
entrusted to the care of
their grandparents, with the father also being involved in the
process." Mr [YD]
brushed aside my request for an
expert report rather brusquely.
In his view, judges had far
more expertise than doctors in this field, and subjecting the
children to further expert investigations and interviews could
only do them more harm.
Principal Crown Counsel was much more
balanced in his response and considered that an expert report
was
indeed called for. Moreover,
Principal Crown Counsel
expressed serious reservations about Mr [YD]'s suggestion. He
said that the children's paternal grandfather, to whose care
Mr
[YD] proposed entrusting the children, was, and I quote,
"mad". At every
reception at which he encountered Mr X, he
would see Mr X senior explaining, very clearly and without
attempting
to disguise his meaning, that Hitler should come
back to this country. He
added that this impression that the
grandfather was "mad" was shared generally by all the guests
at
such receptions. And he expressly
told Mr [YD] that he
would consider it totally unjustified to entrust the children
to
the care of their paternal grandfather.'
Despite being in possession of this preliminary information,
the
Antwerp courts entrusted the children, at first instance,
to
the care of the notary under the supervision of his 'mad'
father. In the course of
the meeting with Professor [MA],
Principal Crown Counsel [YJ] also cast doubt on the notary's
probity. Professor [MA] gave
the following evidence in his own
defence before the Ordre des Médecins [Medical Association]:
'He
(Principal Crown Counsel) described how Mr X had been made
a
notary, against the advice of the judicial bodies, on the
last day in office of the late Mr [ZK] (then
Minister of Justice) and that, furthermore, in a very short
space of time (a few years) he had succeeded in transforming
an
almost defunct practice into one with an official profit of
32
million francs a year. He
obviously doubted whether a
notary could make such an annual profit by legal and honest
means in view of the property crisis at the time, and thought
he
remembered that Mr X had already been the subject of legal
proceedings at the time in connection with his activities as
a
notary.'
He
was right. In 1984 the notary was
even suspended by the
Disciplinary Board.
Principal Crown Counsel's office (once
again!)
took no account of that penalty.
In the meantime a
fresh criminal complaint has been lodged against the notary
alleging forgery.
The
worst thing is the notary's publicly expressed
Nazi sympathies. A
statement taken by Malines CID shows that
he
calls the genocide of six million Jews an 'American lie'.
At
his wedding the notary and his father gave the Nazi salute
and
struck up the 'Horst-Wessel Song' at the top of their
voices.
But the notary goes much
further. He wants to bring his
children up according to Hitler's principles. That is why they
must learn to bear pain and to endure humiliation and fear.
Hitler himself described a Hitlerite education:
'My educational philosophy is tough. The weak must be
beaten and driven out. My
élite schools will produce
young people whom the world will fear. I want young
people to be violent, imperious, impassive, cruel. That
is what young people should be like. They must be
capable of bearing pain.
They must not show any weakness
or tenderness. Their eyes
must shine with the brilliant,
free look of a beast of prey.
I want my young people to
be strong and beautiful ...
Then I can build something
new.'
There is little to add.
Except to say that it is high time
that, in the interests of the children, the
medical certificates, the
reports and evidence produced by the
court expert, the bailiff and the child psychiatrists should
at
last be taken seriously and that a decision in this case be
given on the basis of facts and not on the basis of the
influential status of one of the parties. Public confidence
in
the judiciary is at stake."
The
article was illustrated with what the applicants described
as
photos of injuries sustained by "Wim" in May, two drawings said to
be
by "Jan" and another said to be by "Wim"; it also contained
a
transcript
of part of Detective Sergeant [ZB]'s alleged questioning of
"Jan"
on 6 March 1984.
22. On 6 November 1986
the fourth article by Mr De Haes and
Mr
Gijsels appeared. It read as
follows:
"...
Last Thursday the Wim and Jan case took a dramatic legal turn.
On
an application by Principal Crown Counsel [YM], the
Court of Cassation withdrew the X case from the Antwerp court
and
transferred it to the Ghent tribunal [de première instance]
in
the hope that the Ghent magistrats would adopt a less biased
approach. It is certainly
none too soon. The battle between
the
legal and medical professions in the Wim and Jan case had
reached a climax. In a
final attempt to make the
Antwerp magistrats see reason, four eminent experts sent a
joint letter to Principal Crown Counsel [YJ], declaring on
their honour that they were 100% convinced that Mr X's children
were the victims of sexual and physical abuse. The
professional competence of these four experts cannot be
questioned - even by the Antwerp magistrats. They are
Professor [MD] (Professor of Paediatrics at UIA
[Antwerp University Institution], Medical Director of the
Algemeen Kinderziekenhuis Antwerpen and Director of the
Antwerp Vertrouwensartscentrum [medical reception centre for
abused children]); Professor [MC] (Professor of Paediatrics at
Louvain C[atholic] U[niversity], Head of the
Gasthuisberg [University Hospital] Paediatric Clinic in Louvain
and
President of the National Council on Child Abuse);
Professor [MA] (Professor of Child and Youth Psychiatry at
Gasthuisberg [Hospital], Louvain C[atholic] U[niversity], who
was
appointed by Principal Crown Counsel [YJ] to study the
case); and Dr [MB] (a child psychiatrist and psychoanalyst,
appointed as an expert by the court).
With their letter they enclosed a note listing ten pieces of
evidence, any one of which on its own would, in any other case,
have led to criminal proceedings or even an arrest. The aim
of
these scientists was clear. They
were seeking from the
courts a temporary 'protective measure' whereby the children
would have been admitted to one of the three [medical
reception centres in Flanders for abused children] pending a
final court ruling. There
was no response. The relevant
magistrats did not react.
The Ordre des Médecins, however, did
-
it forbade Professors [MA] and [MC] to voice their opinions.
Yet
again the messenger is being shot without anyone listening
to
the message.
Politicians also reacted.
The Justice Minister, Jean Gol,
asked to see the file and is following the case closely but is
powerless to intervene because of the constitutional separation
of
powers. And the MEPs Jef Ulburghs,
Anne-Marie Lizin ... and
Pol
Staes ... have laid a draft resolution before the
European Parliament requesting a proper investigation and
urgent measures to put an end to the children's dangerous
predicament.
The
public are finding the case harder and harder to 'swallow'.
The
Justice Minister's office is inundated with dozens of
indignant letters. The
weekly silent demonstrations on the
steps of the Antwerp law courts continue
and last week, during
Monday night, posters were stuck up all over the centre of town
revealing Mr X's surname and forename. The poster campaign,
which aroused mixed feelings among journalists and lawyers, has
given a new dimension to the controversy surrounding the
X
case.
..."
23. On 27 November 1986
the applicants' fifth article appeared.
It
read as follows:
"...
Our
prediction of a fortnight ago that the agonisingly slow
progress being made in the Wim and Jan case was likely to leave
the
case stranded in the Antwerp courts has come true. In the
teeth of all the evidence, the Court of Cassation has held that
the
Antwerp judiciary cannot be accused of any bias in this
incest case and that the whole case can therefore continue to
be
dealt with in Antwerp.
In
parallel with the Court of Cassation's decision there have
been some remarkable events. The notary Mr X, so called in
order to protect the identities of Wim and Jan, now shows
himself in public and is giving interviews, sometimes even
accompanied by his children.
The fact that his name (and
therefore the names of his little boys) now appears in the
press does not appear to bother him.
Another consequence is that the media are now breaking several
months' silence, and some editors have really gone off the
rails.
It
is very worrying, for example, that certain daily and
weekly newspapers are trying to play down the X case, depicting
it
as a run-of-the-mill divorce case in which both parties are
hurling the most disgusting accusations at each other. In
these really not very cheering proceedings the 'divorce' aspect
is
only an insignificant detail, and moreover is quite another
matter. Indeed, we have not
published a single word on that
subject, nor do we wish to do so, since it is a purely private
matter.
The
real issues in the case with which we are concerned are
very serious accusations of incest
and child abuse, supported
by
medical certificates and examinations, and the extremely
questionable manner in which those accusations are being dealt
with by the courts. This
state of affairs is no longer part
of
two people's private life but concerns us all. Moreover,
the
case of Mr X is simply the tip of the iceberg and is
representative of other incest cases. It is for that reason,
and
that reason only, that we have written about it.
In
the meantime, certain daily and weekly newspapers are
indulging in the most unsavoury sensationalism and, without
really knowing the case, allowing the notary whole pages in
which to proclaim his version of the facts. Of course, freedom
of
expression is sacred. But have we
ever pushed Wim and Jan's
mother into the foreground?
Have we ever published her opinion
of
the case? No. Humo's reports on Wim and Jan have
always
been based on our own investigations alone and on innumerable
authentic documents.
We
have not written a single word that was not based on the
reports of doctors, paediatricians, court experts and a
bailiff. Since our first
'Incest authorised in Flanders'
article came out as far back as 26 June, the notary's family
has
tried to get Humo's management round the dinner table to
'discuss' the case. The
editorial staff have always taken a
consistent line: no discussion - send us
documents proving us
wrong and we will publish them.
We also made this offer on
[the television programme] Argus, but up to now Mr X has not
got
round to sending us his 'equally numerous pieces of expert
evidence in rebuttal'. For
all his assertions in Knack and
De
Nieuwe Gazet that these exist, it is strange that those
papers' journalists have yet to receive this rebutting
evidence. All the notary
has tried to do so far is to muddy
the
waters and present the case as if it were a matter of his
word against his wife's, an argument along the lines of 'Oh no,
I
didn't' and 'Oh yes, you did'.
...
In
the 5 November issue of Knack the notary reveals yet another
new
discovery: the photographs were not taken by the bailiff
but
by his ex-wife, and were faked with 'red ointment'. We
repeat: if the bruises were caused by falling downstairs, why
would
they need to be faked with red ointment?
It is true that
his
wife took photographs, but in the presence of the bailiff.
And
they were expressly annexed to the bailiff's report.
But
irrespective of that, the relevant point is that the
bailiff did take photographs himself.
...
Nothing but red ointment?
The whole thing rigged so as to be
more visible?
...
Besides, those are not the only photos of injuries to have been
taken. Dr [MC] also took
numerous photographs of the injuries
and
of an 'abnormal irritation of the penis and the peri-
anal region', and they were annexed to his reports. There is
no evidence, the notary
asserts. Will it really be
necessary
to
publish a photo of his little boys' sore anuses?
The
court, for which the bailiff's report was drawn up and the
photographs taken, does not appear to have entertained any
doubts as to their authenticity and added them to the case file
four months ago without comment.
With good reason. [ZM], the
bailiff, took the photos with a polaroid camera in the presence
of
witnesses. That type of camera
takes just seconds to
produce a photograph. It is not possible to tamper with them.
Mr
X knows very well why he has not instituted proceedings
against the bailiff and why he has published his insinuations
only in certain newspapers and magazines.
This is not the first time that the notary has tried bluff
tactics. The following
extract from Knack is telling: 'He
freely admits that he has put pressure on several doctors,
beaten up his brother-in-law and, after
receiving a tip-off
from inside the Humo editorial team, issued threats against
Albert Frère's magazine in order to try to get his name deleted
from the articles, but he does not see any of this as
intimidation and considers that in his unhappy situation,
others would have behaved much worse.'
The
allegation that Mr X tried to have his name deleted from
Humo is one of his many lies.
At that time he was asking for
no
more and no less than complete censorship: the article was
not
to be published! For our part, it
has never for a moment
even crossed our minds to mention the name of the notary and
his
family. That name has therefore
never appeared in a single
draft, not even a preliminary one.
For Humo it has never been
a
matter of attacking an individual (and in this connection we
dissociate ourselves completely from the billposters who are
plastering the notary's name all over Antwerp) but of the
dubious way in which the case has been handled.
...
Mr
X delights in telling everyone that he knows that the courts
and
the officially appointed experts are on his side. 'He told
us
that the report by the three experts from the AKA (appointed
by
the Youth Court judge [YL] - Ed.) would be published on
Wednesday, but that he could already reveal that the report
proves his total innocence' (Algemeen Dagblad, 1.11.86).
'This week he hopes to distribute the reports by Dr [MI],
Dr
[MK] and Dr [MJ], appointed as experts by the Youth Court
a
year ago(!). "They are unanimous and totally favourable to
me" [he says] ...' (Knack, 5.11.86)
Mr
X was so positive that we fell into the trap (see our
previous article) of believing that the reports cleared him of
all
suspicion. Since at that point the
reports had not been
filed, we asked: 'Does the notary have a hitherto unsuspected
gift of clairvoyance or has he had an opportunity to consult
the
reports even before they are filed with the Youth Court?'
We
don't know. But what we do know is
that in his interviews
the
notary is cocking a snook at the truth.
The three reports
are
not entirely favourable to him.
The conclusions of the
report by the psychiatrist [MK], wholly confused though they
indeed are, explicitly indicate that the evidence on the case
file raises a strong presumption of sexual and physical abuse
but
that there is no absolute, irrefutable proof. Using the
conditional mood, [MK] adds that Wim and Jan's stories could
have been the product of 'coaching', not to say spoon-feeding,
by
the mother. In other words, [MK]
is saying that in fact he
doesn't know. At all
events, one can hardly say that this
report is entirely favourable to Mr X. The notary has also
lied to the press about other things. According to him, the
children are afraid of Malines, the mother's environment -
whereas according to [MK]'s report, one of the children is very
positive towards his mother and very negative towards his
father. The other child
sometimes would prefer to stay in
Antwerp and at other times to live in Malines. Moreover,
[MK]'s opinion is that the children should be placed with a
foster family, with access for both parents.
Last week Dr [MJ]'s expert report also came in. A key witness
in
relation to the ill-treatment of 16 May, [MJ] concludes that
it
never took place. Yet another
sample of the expert's
wisdom: on the one hand, he states in his report that the
children want to stay with their mother but, on the other, he
recommends placing them with the father after the divorce, with
limited access for the mother.
As an immediate step, he
recommends, just like [MK], that the children should be placed
in
a neutral setting, with generous access for both parents.
No
doubt you have to be an expert in order to understand so
many contradictions.
...
In
contrast to the contradictory and inconsistent reports of
these doctors, there are the irrefutable, unequivocal reports
of
Professor [MA]:
'Given that the children have again been subjected to
sexual abuse by their father, I consider that any further
contact between the father and the children would for the time
being be extremely prejudicial to the children's subsequent
development, and the situation is particularly dangerous for
them in that their mental development and that of their
personalities are seriously jeopardised. This being so, I
consider it necessary to intervene as a matter of urgency under
section 36 (2) (children at risk) of the Child Protection Act.'
(August 1984)
The
court expert [MB], appointed by the
investigating judge [YE], stated:
'All the examinations of Wim and Jan lead to the same
conclusion: the two children describe sexual contact with
Daddy. Wim is in the midst
of assimilating the psychological
trauma into his subconscious.
For Jan this process of
assimilation is more difficult.
The children's statements
appear credible and I have set out a series of arguments on
this point.' (August 1984)
Dr
[MC], who has examined the children twenty-two times (and
not
twelve as the notary, lying again, states in
De Nieuwe Gazet) and has found
non-accidental injuries on
seventeen occasions, states:
'In
the interests of the two children there should be an
immediate court order withdrawing them totally and permanently
from their father's orbit.
Any further delay would be
medically unjustifiable.' (May 1986)
It
remains a disgrace that the Antwerp courts refuse to take
this evidence into account."
The
article was illustrated with two other drawings said to be
by
the children; it also contained what the applicants said was an
extract
from a report by the bailiff [ZM] describing bruises on
both
legs of the younger boy.
24. Following the judgment
of 29 September 1988 (see paragraph 11
above)
Mr De Haes and Mr Gijsels published an article on
14
October 1988 that contained the following:
"...
On
29 September the Brussels tribunal de première instance gave
judgment in the case brought against Humo by the judges of the
Antwerp Court of Appeal as a result of our articles about the
notary Mr X. Humo lost all
along the line. This judgment is
not
only desperately short on reasoning but also completely
unsatisfactory. The
Vice-President, [YF], and the other
judges, [YG] and [YH], dealt with the case carelessly. They
were not willing to listen to Humo's very strong arguments,
while the debate about the relationship between the media and
the
judiciary, which was important for the press as a whole,
was
purely and simply brushed aside.
We wonder whether their
Lordships actually read Humo's submissions.
The
Brussels tribunal de première instance chose the easy way
out, holding it against us that the 'insinuations and offensive
accusations' against the judges 'have no foundation except
gossip and malicious distortions'.
What the whole of Flanders
knows, except apparently Messrs [YF], [YG] and [YH], is that
our
doubts as to the integrity of the
Antwerp Court of Appeal magistrats were (and still are) based
on
a number of medical reports, which we have always cited
verbatim, so there can be no question of
malicious distortion.
Are
journalists acting unlawfully where they confine themselves
to
verbatim extracts from medical reports and to known and
proved facts?
We
are also accused of sullying the Antwerp judges' private
lives. But at no time has
Humo ever brought up anything to do
with the judges' private lives.
We have kept, strictly and
deliberately, to those matters that were directly linked to the
case and were capable of verification in
history books and
press articles. How can
matters which are so manifestly and
indisputably in the public domain suddenly be considered
aspects of private life?
Further on in the reasons for their judgment, Judges [YF], [YG]
and
[YH] say bluntly that we '[accept] as true, without more,
the
statement made by Mr X's former wife and her expert adviser
(Professor [MA])'. We care
not a jot about Mr X's former
wife's statement. We have always concentrated solely on
the
medical findings and reports of innumerable doctors.
Yet
the tribunal de première instance simply skirts round these
facts.
Furthermore, one of the essential aspects of Mr X's case has
cleverly been evaded: the conflict between the
medical profession and the judiciary. Journalists have a duty
to
strive 'to respect the truth', says the court - a dictum to
which we gladly subscribe, but judges are under the same duty.
The
judgment of the tribunal de première instance becomes
positively Kafkaesque when it attacks the medical reports by
simply referring to the judgments of the
Court of Appeal judges, who deliberately failed to take those
reports seriously - precisely the attitude that Humo has
condemned. For which we had
our reasons. But what do the
judges of the Brussels tribunal de première instance do? They
use
their fellow judges' judgments as evidence against Humo.
In
other words, the truth is to be found only in the judgments
of
the Antwerp judges. If that is the
case, anyone who
challenges a judgment, including in the press, runs the risk
of
being put in the wrong since a judge is always right. It
is
not the truth but 'the official truth and nothing but the
official truth' which will be published in our newspapers in
future. Is that what people want?
Clearly, the Brussels judges [YF], [YG] and [YH], did not
manage to give judgment with the necessary detachment and
independence on their fellow judges of the
Antwerp Court of Appeal. They
are thus adhering to the line
of
biased judgments which we have condemned in the case of
Mr
X. Humo will accordingly be
appealing against this
judgment."
II. Relevant domestic law
25. The first paragraph
of the former Article 18 (currently
Article
25) of the Constitution provides:
"The press shall be free; there shall never be any censorship;
no
security can be demanded of writers, publishers or
printers."
26. The relevant
provisions of the Civil Code are worded as
follows:
Article 1382
"Any act committed by a person that causes damage to another
shall render the person through whose fault the damage was
caused liable to make reparation for it."
Article 1383
"Everyone shall be liable for damage he has caused not only
through his own act but also through his failure to act or his
negligence."
According to legal writers and the case-law, an offence against
the
criminal law constitutes per se a fault within the meaning of
Article
1382 of the Civil Code (see L. Cornelis, Beginselen van het
Belgische
buitencontractuele aansprakelijkheidsrecht, p. 62, no. 41;
judgments
of the Court of Cassation of 31 January 1980
(Pasicrisie
1980, I, p. 622) and 13 February 1988
(Rechtskundig
Weekblad 1988-89, col. 159)).
Articles 1382 and 1383 of
the
Civil Code accordingly provide a basis for civil proceedings for
abuse
of freedom of the press (judgment of the Court of Cassation of
4
December 1952, Pasicrisie 1953, I, p. 215). A publication is
regarded
as being an abuse where it breaches a criminal provision
(without
it being necessary, however, for all the ingredients of the
offence
to have been made out); disseminates ill-considered accusations
without
sufficient evidence; employs gratuitously offensive terms or
exaggerated
expressions; or fails to respect private life or the
individual's
privacy.
27. Articles 443 to 449
and 561, 7, of the Criminal Code make
defamation
and insults punishable. By Article
450, these offences,
where
committed against individuals, can be prosecuted only on a
complaint
by the injured party or, if that person has died, his spouse,
descendants
or statutory heirs up to and including the third degree.
Articles
275 and 276 of the same Code make it a punishable offence to
insult
members of the ordinary courts.
PROCEEDINGS
BEFORE THE COMMISSION
28. Mr De Haes and Mr
Gijsels applied to the Commission on
12
March 1992. They alleged that the
judgments against them had
infringed
their right to freedom of expression as guaranteed in
Article
10 of the Convention (art. 10) and that it had been based on
an
erroneous interpretation of Article 8 (art. 8). They also
maintained
that they had not had a fair trial by an independent and
impartial
tribunal within the meaning of Article 6 (art. 6).
29. The Commission
declared the application (no. 19983/92)
admissible
on 24 February 1995. In its report
of 29 November 1995
(Article
31) (art. 31), it expressed the opinion that there had been
a
violation of Article 10 (art. 10) (six votes to three) and
Article
6 (art. 6) (unanimously) of the Convention but not of
Article
8 (art. 8). The full text of the
Commission's opinion and of
the
two dissenting opinions contained in the report is reproduced as
an
annex to this judgment (1).
_______________
Note
by the Registrar
1. For practical reasons this annex will
appear only with the printed
version
of the judgment (in Reports of Judgments and Decisions 1997-I),
but
a copy of the Commission's report is obtainable from the registry.
_______________
FINAL
SUBMISSIONS TO THE COURT
30. In their memorial the
Government asked the Court to "hold that
there
ha[d] been no violation of Articles 6 and 10 of the Convention
(art.
6, art. 10)".
31. In their memorial the
applicants asked the Court to "hold that
there
ha[d] been a violation of Article 10 and Article 6 of the
Convention
(art. 10, art. 6)".
AS
TO THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 10 OF THE CONVENTION (art. 10)
32. The applicants
alleged that the judgment of the
Brussels
tribunal de première instance and Court of Appeal against them
had
entailed a breach of Article 10 of the Convention (art. 10), which
provides:
"1. Everyone has
the right to freedom of expression.
This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This Article (art. 10)
shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise
of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in
the interests of national security, territorial integrity
or
public safety, for the prevention of disorder or crime, for
the
protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure
of
information received in confidence, or for maintaining the
authority and impartiality of the judiciary."
33. The judgment against
the applicants indisputably amounted to
an
"interference" with their exercise of their freedom of expression.
It
was common ground that the interference had been "prescribed by law"
and
had pursued at least one of the legitimate aims referred to in
Article
10 para. 2 (art. 10-2) - the protection of the reputation or
rights
of others, in this instance the rights of the judges and
Advocate-General
who brought proceedings.
The
Court agrees. It must therefore
ascertain whether the
interference
was "necessary in a democratic society" for achieving that
aim.
34. Mr De Haes and Mr
Gijsels pointed out that their articles had
been
written against the background of a public debate, reported by
other
newspapers, on incest in Flanders and on the way in which the
judiciary
was dealing with the problem.
Before writing them, they had
undertaken
sufficient research and sought the opinion of several
experts,
and that had enabled them to base the articles on objective
evidence. The only reason why they had not
produced that evidence in
court
was that they had not wished to disclose their sources of
information. The refusal of the Brussels courts of
first instance and
appeal
to admit in evidence the documents they had mentioned had
accordingly
in itself entailed a breach of Article 10 (art. 10).
Their criticisms of the judges and Advocate-General concerned
could
not, they continued, justify a penalty merely on the ground that
the
criticisms were at odds with decisions of the
Antwerp
Court of Appeal. The determination
of the "judicial truth" in
a
court decision did not mean that any other opinion had to be
considered
wrong when the exercise of the freedom of the press was
being
reviewed. That, however, was
exactly what had happened in the
instant
case, although the impugned articles had been based on
sufficient
objective information. In short,
the interference
complained
of had not been necessary in a democratic society.
35. The Commission
accepted this argument in substance.
36. The Government maintained that, far from stimulating
discussion
of
the functioning of the system of justice in Belgium, the impugned
press
articles had contained only personal insults directed at the
Antwerp
judges and Advocate-General and had therefore not deserved the
enhanced
protection to which political views were entitled. No
immunity
could be claimed for opinions expressed by journalists merely
on
the ground that the accuracy of those opinions could not be
verified. In the instant case the authors of the
articles had incurred
a
penalty for having exceeded the limits of acceptable criticism. It
would
have been quite possible to challenge the way the courts had
dealt
with Mr X's cases without at the same time making a personal
attack
on the judges and Advocate-General concerned and accusing them
of
bias and of showing "a lack of independence". In that connection,
it
also had to be borne in mind that the duty of discretion laid upon
magistrats
prevented them from reacting and defending themselves as,
for
example, politicians did.
37. The Court reiterates
that the press plays an essential role in
a
democratic society. Although it
must not overstep certain bounds,
in
particular in respect of the reputation and rights of others, its
duty
is nevertheless to impart - in a manner consistent with its
obligations
and responsibilities - information and ideas on all matters
of
public interest, including those relating to the functioning of the
judiciary.
The
courts - the guarantors of justice, whose role is
fundamental
in a State based on the rule of law - must enjoy public
confidence. They must accordingly be protected from
destructive
attacks
that are unfounded, especially in view of the fact that judges
are
subject to a duty of discretion that precludes them from replying
to
criticism.
In
this matter as in others, it is primarily for the
national
authorities to determine the need for an interference with the
exercise
of freedom of expression. What
they may do in this connection
is,
however, subject to European supervision embracing both the
legislation
and the decisions applying it, even where they have been
given
by an independent court (see, mutatis mutandis, the
Prager
and Oberschlick v. Austria judgment of 26 April 1995, Series A
no.
313, pp. 17-18, paras. 34-35).
38. The Court notes at
the outset that the judgment against the
applicants
was based on all the articles published by them between
26
June and 27 November 1986 on the subject of the X case.
This must be taken into account for the purpose of assessing
the
scale and necessity of the interference complained of.
39. The articles contain
a mass of detailed information about the
circumstances
in which the decisions on the custody of Mr X's children
were
taken. That information was based
on thorough research into the
allegations
against Mr X and on the opinions of several experts who
were
said to have advised the applicants to disclose them in the
interests
of the children.
Even the Antwerp Court of Appeal considered that Mr X's wife
and
parents-in-law, who had been prosecuted for criminal libel, "had
no
good reason to doubt the truth of the allegations" in question
(see
paragraph 8 above).
That being so, the applicants cannot be accused of having
failed
in their professional obligations by publishing what they had
learned
about the case. It is incumbent on
the press to impart
information
and ideas of public interest. Not
only does the press have
the
task of imparting such information and ideas: the public also has
a
right to receive them (see, among other authorities, the Jersild
v.
Denmark judgment of 23 September 1994, Series A no. 298, p. 23,
para.
31, and the Goodwin v. the United Kingdom judgment of
27
March 1996, Reports of Judgments and Decisions 1996-II, p. 500,
para.
39). This was particularly true in
the instant case in view of
the
seriousness of the allegations, which concerned both the fate of
young
children and the functioning of the system of justice in Antwerp.
The
applicants, moreover, made themselves quite clear in this regard
when
they wrote in their article of 18 September 1986: "It is not for
the
press to usurp the role of the judiciary, but in this outrageous
case
it is impossible and unthinkable that we should remain silent"
(see
paragraph 21 above).
40. It should be noticed,
moreover, that the judges and
Advocate-General
who brought proceedings did not, either in their writ
or
in their submissions to the Brussels courts of first instance and
appeal,
cast doubt on the information published about the fate of the
X
children, other than on the statement that the case in question had
been
withdrawn from the Antwerp courts (see paragraphs 22 and 23
above). However, the weight of the latter item
in comparison with the
impugned
articles as a whole and the fact that the applicants corrected
it
themselves, mean that, on its own, that incident cannot put in doubt
the
reliability of the journalists' work.
41. In actual fact the
judges and Advocate-General complained
mainly
of the personal attacks to which they considered they had been
subjected
in the journalists' comments on the events in the custody
proceedings
in respect of the X children. The
applicants, in accusing
them
of marked bias and cowardice, had, they maintained, made remarks
about
them that were defamatory and constituted an attack on their
honour. The applicants had furthermore accused
two of them of
pronounced
extreme-right-wing sympathies and had thus grossly infringed
their
right to respect for their private life.
The
Brussels courts accepted that contention in substance
(see
paragraphs 11 and 14 above). The
Court of Appeal essentially
found
the applicants guilty of having made unproved statements about
the
private life of the judges and Advocate-General who had brought
proceedings
and of having drawn defamatory conclusions by alleging that
they
had not been impartial in their handling of the case of the
X
children. Its judgment says:
"In the instant case the appellants dared to go one step
further by maintaining, without a shred of evidence, that they
were entitled to infer the alleged bias from the very
personalities of the judges and the Advocate-General and thus
interfere with private life, which is without any doubt
unlawful.
Furthermore, the purpose of the present proceedings is not to
decide what ultimately was the objective truth in the case that
the
original plaintiffs finally determined at the time but
merely whether the comments in issue are to be considered
defamatory, which is not in the slightest doubt."
(see paragraph 14 above)
42. The Court reiterates
that a careful distinction needs to be
made
between facts and value judgments.
The existence of facts can be
demonstrated,
whereas the truth of value judgments is not susceptible
of
proof (see the Lingens v. Austria judgment of 8 July 1986, Series A
no.
103, p. 28, para. 46).
43. As regards, firstly,
the statements concerning the political
sympathies
of the judges and Advocate-General who brought proceedings,
it
must be noted that the Brussels Court of Appeal held:
"Even if the appellants believed that certain ideological views
could be ascribed to the respondents (views which they have
failed to prove that the respondents held), they cannot in any
event be permitted purely and simply to infer from those
views - even if they had been proved - that the judges and the
Advocate-General were biased and to criticise that bias in
public." (see paragraph 14 above)
It
is apparent from this that even if the allegations in
question
had been accurate, the applicants would not have escaped being
found
liable since that finding related not so much to the allegations
reported
as to the comments which these inspired the journalists to
make.
44. Added to the
information which the applicants had been able to
gather
about Mr X's behaviour towards his children, information which
was
in itself capable of justifying the criticism of the decisions
taken
by or with the aid of the judges and Advocate-General concerned,
the
facts which they believed they were in a position to allege
concerning
those persons' political sympathies could be regarded as
potentially
lending credibility to the idea that those sympathies were
not
irrelevant to the decisions in question.
45. One of the allusions
to the alleged political sympathies was
inadmissible
- the one concerning the past history of the father of one
of
the judges criticised (see paragraph 19 above). It is unacceptable
that
someone should be exposed to opprobrium because of matters
concerning
a member of his family. A penalty
was justifiable on
account
of that allusion by itself.
It
was, however, only one of the elements in this case. The
applicants
were convicted for the totality of the accusations of bias
they
made against the three judges and the Advocate-General in
question.
46. In this connection,
the Court reiterates that freedom of
expression
is applicable not only to "information" or "ideas" that are
favourably
received or regarded as inoffensive or as a matter of
indifference
but also to those that offend, shock or disturb the State
or
any section of the community. In
addition, journalistic freedom
also
covers possible recourse to a degree of exaggeration, or even
provocation
(see, mutatis mutandis, the Prager and Oberschlick judgment
cited
above, p. 19, para. 38).
47. Looked at against the
background of the case, the accusations
in
question amount to an opinion, whose truth, by definition, is not
susceptible
of proof. Such an opinion may,
however, be excessive, in
particular
in the absence of any factual basis, but it was not so in
this
instance; in that respect the present case differs from the
Prager
and Oberschlick case (see the judgment cited above, p. 18,
para.
37).
48. Although Mr De Haes
and Mr Gijsels' comments were without doubt
severely
critical, they nevertheless appear proportionate to the stir
and
indignation caused by the matters alleged in their articles. As
to
the journalists' polemical and even aggressive tone, which the Court
should
not be taken to approve, it must be remembered that Article 10
(art.
10) protects not only the substance of the ideas and information
expressed
but also the form in which they are conveyed (see, as the
most
recent authority, the Jersild judgment cited above, p. 23,
para.
31).
49. In conclusion, the
Court considers that, regard being had to
the
seriousness of the circumstances of the case and of the issues at
stake,
the necessity of the interference with the exercise of the
applicants'
freedom of expression has not been shown, except as regards
the
allusion to the past history of the father of one of the judges in
question
(see paragraph 45 above).
There has therefore been a breach of Article 10 (art. 10).
II. ALLEGED VIOLATION OF
ARTICLE 6 PARA. 1 OF THE CONVENTION
(art. 6-1)
50. The applicants also
complained of a breach of Article 6
para.
1 of the Convention (art. 6-1), which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by an ...
impartial tribunal ..."
They firstly criticised the Brussels tribunal de
première
instance and Court of Appeal for having refused to admit in
evidence
the documents referred to in the impugned articles or hear at
least
some of their witnesses (see paragraphs 10 and 12 above). This,
they
said, had resulted in a basic inequality of arms between, on the
one
hand, the judges and the Advocate-General, who were familiar with
the
file, and, on the other, the journalists, who with only limited
sources
had had to reconstruct the truth.
Further, in arguing against Mr De Haes and Mr Gijsels on the
basis
of their article of 14 October 1988 (see paragraph 24 above), the
Brussels
Court of Appeal had ruled on matters not before it as the
judges
criticised in that article were not parties to the case before
the
Court of Appeal and their decision had not been mentioned in the
original
writ. The Court of Appeal had thus
taken as a basis a fact
that
had not been the subject of adversarial argument and had thereby
departed
from due process.
Lastly, the derogatory terms used in the
Brussels
Court of Appeal's judgment showed that there had been a lack
of
subjective impartiality.
51. The Commission
shared, in substance, the applicants' opinion
as
to the effects of the alleged breaches on equality of arms and due
process. It did not consider it necessary to
express a view on the
Brussels
Court of Appeal's impartiality.
52. The Government
submitted that the evidence which the
journalists
proposed to submit had been calculated to call in question
the
decisions taken in the lawsuit between Mr X and his wife, which was
res
judicata. The Brussels courts had
therefore been entitled to
reject
it, seeing that the "judicial truth" was sufficiently clear from
the
judgments delivered in Mr X's cases.
In short, production of the
evidence
in question had been shown not to be decisive in the
instant
case, and the Court of Cassation had confirmed that.
As
to the Court of Appeal's reference to the press article of
14
October 1988, it was a superfluous reason, as the judgment against
the
applicants rested primarily on other grounds. The reference to
that
article in the submissions of the judges and Advocate-General who
had
brought proceedings was not intended to amend their claim but
simply
to highlight Mr De Haes and Mr Gijsels' relentless hostility.
53. The Court reiterates
that the principle of equality of arms -
a
component of the broader concept of a fair trial - requires that each
party
must be afforded a reasonable opportunity to present his case
under
conditions that do not place him at a substantial disadvantage
vis-à-vis
his opponent (see, among other authorities, the Ankerl
v.
Switzerland judgment of 23 October 1996, Reports 1996-V,
pp.
1565-66, para. 38).
54. It notes that in
their submissions to the Brussels courts of
first
instance and appeal the judges and Advocate-General concerned
maintained,
in substance and inter alia, that the criticisms made of
them
in Humo were not supported by the facts of the case and certainly
not
by the four judgments that had been delivered by them or with their
aid
in that case, which were otherwise uncontradicted. They thus
referred,
in order to deny that there was any basis for the
journalists'
argument, to the content of the case they had themselves
dealt
with and of the relevant judgments.
Coming as it did from the judges and Advocate-General who had
handled
the case, that statement had such credibility that it could
hardly
be seriously challenged in the courts if the defendants could
not
adduce at least some relevant documentary or witness evidence to
that
end.
55. In this respect, the
Court does not share the
Brussels
Court of Appeal's opinion that the request for production of
documents
demonstrated the lack of care with which Mr De Haes and
Mr
Gijsels had written their articles.
It considers that the
journalists'
concern not to risk compromising their sources of
information
by lodging the documents in question themselves was
legitimate
(see, mutatis mutandis, the Goodwin judgment cited above,
p.
502, para. 45). Furthermore, their
articles contained such a wealth
of
detail about the fate of the X children and the findings of the
medical
examinations they had undergone that it could not reasonably
be
supposed, without further inquiry, that the authors had not had at
least
some relevant information available to them.
56. It should also be
noted that the journalists' argument could
hardly
be regarded as wholly unfounded, since even before the judges
and
the Advocate-General brought proceedings against the applicants,
the
Antwerp tribunal de première instance and Court of Appeal had held
that
the defendants in the libel action Mr X had brought against his
wife
and parents-in-law had not had any good reason to doubt the truth
of
their allegations (see paragraph 8 above).
57. At all events, the
proceedings brought against the applicants
by
the judges and the Advocate-General did not relate to the merits of
the
judgment in the X case but solely to the question whether in the
circumstances
the applicants had been entitled to express themselves
as
they had. It was not necessary in
order to answer that question to
produce
the whole file of the proceedings concerning Mr X but only
documents
which were likely to prove or disprove the truth of the
applicants'
allegations.
58. It was in those terms
that Mr De Haes and Mr Gijsels made their
application. They asked the Brussels tribunal de
première instance and
Court
of Appeal at least to study the opinion of the three professors
whose
examinations had prompted the applicants to write their articles
(see
paragraph 10 above). The outright
rejection of their application
put
the journalists at a substantial disadvantage vis-à-vis the
plaintiffs. There was therefore a breach of the
principle of equality
of
arms.
59. That finding alone
constitutes a breach of Article 6 para. 1
(art.
6-1). The Court consequently
considers it unnecessary to examine
the
other complaints raised by the applicants under that provision
(art.
6-1).
III. APPLICATION OF ARTICLE 50
OF THE CONVENTION (art. 50)
60. Article 50 of the
Convention (art. 50) provides:
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations
arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to
be made for the consequences of this decision or measure,
the
decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Pecuniary damage
61. The applicants sought
113,101 Belgian francs (BEF) in respect
of
pecuniary damage. That sum
corresponded to the cost of publishing
the
Brussels Court of Appeal's judgment of 5 February 1990 in Humo,
plus
"one franc on account" for the publication of the same judgment
in
six daily newspapers, which has not yet taken place.
62. No observations were
made by either the Delegate of the
Commission
or the Government.
63. As the publishing of
the judgment was a direct consequence of
the
wrongful finding against Mr De Haes and Mr Gijsels, the Court
considers
the claim justified.
B. Non-pecuniary damage
64. The journalists also
sought compensation in the amount of
BEF
500,000 each for non-pecuniary damage caused by the adverse
publicity
and the psychological ordeals which followed their
conviction.
65. The Government
considered that the Court's judgment would be
sufficient
redress for that damage.
The Delegate of the Commission did not
express a view.
66. In the Court's
opinion, the Belgian courts' decisions against
the
applicants must have caused them certain unpleasantnesses. The
finding
of a breach of the Convention, however, affords sufficient just
satisfaction
in this regard.
C. Costs and expenses
67. Mr De Haes and Mr
Gijsels sought BEF 851,697 in respect of the
costs
and expenses relating to their legal representation, namely:
BEF
332,031 for the proceedings in the domestic courts and BEF 519,666
for
those before the Convention institutions, including BEF 179,666 for
translation
expenses.
68. No observations were
made by either the Delegate of the
Commission
or the Government.
69. That being so, the
Court allows the claim.
D. Default interest
70. According to the
information available to the Court, the
statutory
rate of interest applicable in Belgium at the date of
adoption
of the present judgment is 7% per annum.
FOR
THESE REASONS, THE COURT
1. Holds by seven
votes to two that there has been a breach of
Article 10 of the Convention (art. 10);
2. Holds
unanimously that there has been a breach of Article 6
para. 1 of the Convention (art. 6-1);
3. Holds
unanimously that the respondent State is to pay the
applicants, within three months, 113,101 (one hundred and
thirteen thousand, one hundred and one) Belgian francs in
respect of pecuniary damage and 851,697 (eight hundred and
fifty-one thousand, six hundred and ninety-seven) francs for
costs and expenses, on which sums simple interest at an
annual rate of 7% shall be payable from the expiry of the
above-mentioned three months until settlement;
4. Holds
unanimously that the present judgment in itself
constitutes sufficient just satisfaction in respect of
non-pecuniary damage.
Done in English and in French, and delivered at a public
hearing
in the Human Rights Building, Strasbourg, on 24 February 1997.
Signed:
Rolv RYSSDAL
President
Signed:
Herbert PETZOLD
Registrar
In
accordance with Article 51 para. 2 of the Convention
(art.
51-2) and Rule 55 para. 2 of Rules of Court B, the following
separate
opinions are annexed to this judgment:
(a) partly dissenting
opinion of Mr Matscher;
(b) partly dissenting
opinion of Mr Morenilla.
Initialled:
R. R.
Initialled:
H. P.
PARTLY DISSENTING OPINION OF JUDGE MATSCHER
(Translation)
I
am unable to agree with the majority of the Chamber in so far
as
it finds a breach of Article 10 (art. 10).
Although I fully endorse what the Chamber says on the subject
of
freedom of expression, and in particular about the importance of
freedom
of the press in a democratic society, I believe that the
Chamber
has failed to recognise the limits that this freedom entails,
which
are also of importance in a civilised democratic society.
Indeed,
the reference in the second paragraph of Article 10 (art. 10-2)
to
the "duties and responsibilities" inherent in freedom of the press
seems
to carry little weight in the Court's case-law.
Applying these principles to the present case, I would make the
following
observations.
The
applicants were entitled to criticise the decision of the
Antwerp
Court of Appeal awarding Mr X custody of his children since the
objective
information available to them justified the severest censure
of
that decision; having regard to the circumstances of the case, it
was
indeed legitimate to ask how the judges in question could have
taken
such a decision.
What I find fault with in the press articles that gave rise to
the
decision imposing a penalty on the applicants - albeit a nominal
one
- is the insinuation that the judges who gave that decision had
deliberately
acted in bad faith because of their political or
ideological
sympathies and thus breached their duty of independence and
impartiality,
all with the aim of protecting someone whose political
ideas
appeared to be similar to those of the judges concerned. Nothing
justified
such an insinuation, even if it had been possible to discover
the
impugned judges' political opinions.
In
those circumstances, the interference constituted by the
judgment
against the applicants was "necessary" within the meaning of
the
second paragraph of Article 10 (art. 10-2) and was not
disproportionate.
PARTLY DISSENTING OPINION OF JUDGE MORENILLA
(Translation)
1. To my regret, I
cannot agree with the majority's conclusion as
to
the breach of Article 10 of the Convention (art. 10) in this case.
In
my opinion, the Belgian civil courts' judgment against the
applicants
for defamation was necessary in a democratic society and
proportionate
within the meaning of paragraph 2 of Article 10
(art.
10-2).
In
the impugned judgments - of the Brussels tribunal de
première
instance, the Brussels Court of Appeal and the
Court
of Cassation - the defendants, Mr De Haes and Mr Gijsels, who are
journalists,
were found to have acted unlawfully.
They were ordered
to
pay each of the four plaintiffs - three judges and an
Advocate-General
at the Antwerp Court of Appeal - one franc in respect
of
non-pecuniary damage suffered and to publish the relevant decision
in
full in the weekly magazine Humo, in which they had published
five
articles between July and November 1986 criticising judgments
given
by the Third Division of that court in terms which the members
of
that division described as defamatory.
The plaintiffs were also
given
leave to have the judgment published in six daily newspapers at
the
applicants' expense.
The
decisions criticised by the applicants had been given in
divorce
proceedings in which the Court of Appeal had awarded the father
custody
of his children despite allegations by the mother that he had
committed
incest with them and subjected them to abuse.
2. Like the
majority, I take the view that the impugned judgments
undoubtedly
amounted to an interference with the applicants' exercise
of
their right to freedom of expression, including freedom to hold
opinions
and the right to impart information, which is enshrined in
Article
10 of the Convention (art. 10).
That interference was provided
for
in Articles 1382 et seq. of the Belgian Civil Code and pursued the
aim
of protecting the reputation of others - in this instance the
reputation
of the judges of the division of the Court of Appeal that
had
delivered the judgment - and maintaining the authority and
impartiality
of the judiciary, legitimate aims under Article 10
para.
2 of the Convention (art. 10-2).
3. The necessity
of the judgment against the applicants in a
democratic
society is therefore the final condition that the
interference
has to satisfy in order to be regarded as justified under
paragraph
2 of Article 10 of the Convention (art. 10-2). It is also
the
only ground for my dissent from the majority, who considered that
the
measure was neither necessary nor proportionate in view of the
fundamental
role of the press in a State governed by the rule of law
and
the relevance, in principle, of criticism of the functioning of the
system
of justice.
4. In my view,
however, the articles in question contained, in
addition
to criticism of the judicial decision on the custody of the
children
in the divorce proceedings, assessments of the
Belgian
judicial system in general and the political opinions of
members
of the Antwerp Court of Appeal, whose names were given, and
details
of the past of the father of one of the judges. They
attributed
to the judges and the Advocate-General political ideas
similar
to those of the father who had been awarded custody. I
consider
these comments to have been very offensive to the
Belgian
judiciary and defamatory of the judges and Advocate-General at
the
Court of Appeal. The latter were
intentionally accused by the
applicants
of having taken unjust decisions because of their friendship
or
their political affinities with one of the parties to the
proceedings,
and that amounts to an accusation of misfeasance in
public
office.
5.
The
articles contained expressions such as "Two children
crushed
between the jaws of blind justice.
Incest authorised in
Flanders"
or "Most of the judges of the Third Division of the
Court
of Appeal, who awarded custody to the notary, also belong to
extreme-right-wing
circles. Judge [YB] is the son of
a bigwig in the
gendarmerie
who was convicted in 1948 of collaboration ... It just so
happens
that Principal Crown Counsel [YJ] has the same political
sympathies
as the X family" (first article, of 26 June 1986). "[H]alf
Flanders
is shocked by such warped justice."
"This kind of brutal
pressurising
seems to 'work' very well within the system of justice."
"Thanks
to the fresh data, we now have an even better picture of how
often
and how treacherously the courts have manipulated the case"
(second
article, of 17 July 1986).
"[T]he ultimate guarantee of our
democracy,
an independent system of justice, has been undermined at its
very
roots" (third article, of 18 September 1986). "It remains a
disgrace
that the Antwerp courts refuse to take this evidence into
account"
(fifth article, of 27 November 1986).
6. In another case
concerning the conviction of a journalist and
a
publisher for defamation of a judge, similar to the present case,
albeit
in criminal proceedings, the case of Prager and Oberschlick
v.
Austria (judgment of 26 April 1995, Series A no. 313), the Court
stressed
the need to strike the correct balance between the role of the
press
in imparting information on matters of public interest, such as
the
functioning of the system of justice, and the protection of the
rights
of others and "the special role of the judiciary in society",
where
"as the guarantor of justice, a fundamental value in a
law-governed
State, it must enjoy public confidence if it is to be
successful
in carrying out its duties" (paragraph 34).
7. These features
of freedom of the press not only are compatible
with
freedom of expression but also confer on it the objectivity
required
to ensure truthful and serious reporting of the functioning
of
the system of justice. As the
Court said in the
Prager
and Oberschlick case, "[i]t may therefore prove necessary to
protect
such confidence against destructive attacks that are
essentially
unfounded, especially in view of the fact that judges who
have
been criticised are subject to a duty of discretion that precludes
them
from replying" (ibid.).
8. In the same
judgment the Court also said: "The assessment of
these
factors falls in the first place to the national authorities,
which
enjoy a certain margin of appreciation in determining the
existence
and extent of the necessity of an interference with the
freedom
of expression." However, this
margin of appreciation is
subject
to European supervision (paragraph 35).
In reviewing its
compatibility
with the Convention, the Court must have regard to the
fact
that "the press is one of the means by which politicians and
public
opinion can verify that judges are discharging their heavy
responsibilities
in a manner that is in conformity with the aim which
is
the basis of the task entrusted to them" (paragraph 34).
9. In my opinion,
the decision on how to classify the extracts
mentioned
in the impugned judgments concerning the lack of impartiality
of
the judges and the Advocate-General at the Antwerp Court of Appeal
and
the statements regarding the Belgian system of justice lies within
the
margin of appreciation of the national courts. The statements made
by
the applicants amounted to value judgments on the political ideas
of
the judges and Advocate-General in question or on the influence that
those
ideas and family background had on the decision commented upon.
Such
value judgments were not susceptible of proof and could not
justify
the accusation of bias on the part of the judges or the
sweeping
nature of the accusations or the virulence and
contemptuousness
of the terms employed.
10. The judicial
decisions complained of were based not on the
criticism
of the "objective truth" of the facts established in the
divorce
proceedings or on the lawfulness of the decisions taken by the
judges,
but on the dishonouring statements contained in the articles.
The
journalists nevertheless raised important questions relating to the
criticism
of the functioning of the system of justice and the courts
ought
to have considered them in full and ruled on them in their
judgments. This defect does not, in my view,
invalidate the judgment
against
the applicants for defamation, since that judgment was in fact
based
on the offensive statements used in their articles. The defect
goes
to the breach of Article 6 (art. 6), which the Court found
unanimously.
11. In the strict context
of the impugned decisions, I consider
that
the Belgian civil courts' finding that the terms employed and
statements
made in the articles had undermined the reputation for
impartiality
of the judges who had given the judgment on appeal and the
authority
and independence of the judiciary was in conformity with
Article
10 para. 2 of the Convention (art. 10-2), as was the relief
afforded
to the plaintiffs on this account.