Issue 39 November 2007 - Human Rights Stop Press

In Scotland, the decision of the House of Lords in Somerville (digested in this issue) has been seen in some sections of the media as opening the floodgates to more claims from prisoners based on their having to slop out. The ruling in Somerville makes it clear that such claims when brought under the Scotland Act are not subject to the one year time bar which applies to claims brought under the Human Rights Act. As a result, claims which go back many years may now be capable of being brought.

 

The controversial human rights lawyer Aamer Anwar is to be the subject of proceedings for contempt of court arising from remarks he is said to have made following the conviction of his client, Arif Siddique, for contraventions of the Terrorism Act 2000. In a Note of November 6, Lord Carloway, the trial judge, considered that the remarks should be referred to another judge to determine if they constituted contempt of court in accordance with the requirements of Art.6(1) ECHR in light of the decision of January 27, 2004 in Kyprianou v Cyprus (App. No.73797/01).

 

This case looks set to raise interesting issues as to the balance to be struck between the clear need to ensure respect for the judicial process and the dignity of the Court on the one hand, and the extent to which a verdict can be criticised by legal representatives, other than through the appellate process on the other.

 

Looking at Strasbourg, the right to freedom of expression has been considered in a number of recent cases before the Strasbourg Court.

 

The first of these cases is one which involved the publication of material which was highly critical of the controversial French politician Jean-Marie Le Pen and was decided by the Grand Chamber. No violation of Art.10 was found arising from the conviction of the author and publishers of the material. It is a salutary reminder that freedom of expression is not unlimited under Art.10 and that even controversial public figures may still be protected from criticism by the criminal law.

 

In Lindon, Otchakovsky-Laurens and July v France (App. Nos 21279/02 and 36448/02) a Grand Chamber of the Court held, by 13 votes to 4, that there had been no violation of Art.l0 concerning either (1) the convictions of the writer and publisher of a novel based on murders by Front National militants; or (2) the conviction for defamation of the publication director of the national daily newspaper Liberation, which had published a petition signed by 97 contemporary writers in support of the novelist. The Court further held, unanimously, that there had been no violation of Art.6 (1).

 

Mr Lindon is a writer; Mr Otchakovsky- Laurens is the chairman of the board of directors of the publishing company P.O.L., and Mr July was the publication director of Liberation. In August 1998 P.O.L. published a novel by Mr Lindon, Le Proces de Jean-Marie Le Pen ("Jean-Marie Le Pen on Trial"). The novel recounts the trial of a Front National militant, who, while putting up posters for his party with other militants, committed the cold-blooded murder of a young man of North African descent and admitted that it was a racist crime. The novel is based on real events and in particular the murders, in 1995, of Brahim Bouaram, a young Moroccan who was thrown into the River Seine by skinheads during a Front National march, and of Ibrahim Ali, a young Frenchman of Comorian origin who was killed in Marseilles by Front National militants. The novel raised questions about the responsibility of Mr Le Pen, Chairman of the Front National, for murders committed by militants, and about the effectiveness of strategies to combat the far right. Following the publication of the novel, the Front National and Mr Le Pen brought defamation proceedings against Mr Lindon and Mr Otchakovsky-Laurens.

 

On October 11, 1999, Paris Criminal Court convicted Mr Otchakovsky-Laurens of defamation and Mr Lindon of complicity in that offence. They were each fined the equivalent of EUR 2,286.74 and ordered to pay, jointly, EUR 3,811.23 in damages both to Mr Le Pen and the Front National. The court found four passages from the book to be defamatory: (1) that Mr Le Pen led "a gang of killers" and that "people would have voted for Al Capone too"; (2) that the Front National used violence against anyone who left the party; (3) that behind each of Mr Le Pen's assertions "loomed the spectre of the worst abominations of the history of mankind"; and, (4) that he was a "vampire" who thrived on the "bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies" and that he was a liar who used defamation against his opponents to deflect accusations away from himself.

 

On November 16, 1999 Liberation published a petition signed by 97 contemporary writers in its column "Rebonds" to protest about the conviction of Mr Lindon and Mr Otchakovsky-Laurens. The petition disputed whether the passages in question were in fact defamatory and reproduced them verbatim.

 

Mr July was subsequently summoned by the Front National and Mr Le Pen to appear before Paris Criminal Court, which, in a judgment of September 7, 2000, found him guilty of defamation and sentenced him to pay a fine equivalent to EUR 2,286.74 and EUR 3,811.23 in damages, for having reproduced the relevant passages from the novel.

In a judgment of September 13, 2000, on an appeal lodged by Mr Lindon and Mr Otchakovsky-Laurens, the Paris Court of Appeal upheld their convictions in respect of three passages at (1), (3) and (4) above. The Court reasoned that the author had only sufficiently distanced himself from the views expressed in relation to passage (2); the other three passages had not been subjected to basic verification and were not sufficiently dispassionate. A further appeal on points of law was dismissed by the Court of Cassation.

 

On March 21, 2001, Mr July's conviction was upheld by Paris Court of Appeal, which found that the authors of the petition had intended to show their support for Mr Lindon "by repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks". The Court went on: "its line of argument is built around reference to precise facts. There was therefore an obligation to carry out a meaningful investigation before making particularly serious accusations such as incitement to commit murder and to avoid offensive expressions". The Court of Cassation dismissed Mr July's appeal on points of law.

 

Those convicted applied to the European Court. On the application relating to the writer and publisher, the Court reiterated that those who created or distributed a work, e.g. of a literary nature, contributed to the exchange of ideas and opinions which was essential for a democratic society. However, it appeared that the penalty imposed on Mr Lindon and Mr Otchakovsky-Laurens concerned not the arguments expounded in the novel, but the content of certain passages.

 

The Court recalled that novelists, other creators and anyone exercising freedom of expression had duties and responsibilities. The domestic courts' view on whether the passages in question were defamatory could not be criticised in view of the virulent content of those passages and the fact that they specifically named the Front National and its chairman. It was also apparent that it was for the author's benefit that the Court of Appeal sought to determine those remarks from which the author really distanced himself in his work. As a result, the Court found that one of the four passages was not defamatory.

 

The Court of Appeal's findings that the three passages had not been subjected to basic verification was in line with the European Court's case-law. In order to assess the justification of a statement, a distinction needed to be made between statements of fact and value judgments. While the existence of facts could be demonstrated, the truth, of value judgments was not susceptible of proof. Even where a statement amounted to a value judgment, however, there had to exist a sufficient factual basis to support it. Generally speaking, there was no need to make that distinction when dealing with extracts from a novel. It nevertheless became fully pertinent when, as in the applicants' case, the work in question was not one of pure fiction but introduced real characters or facts. It was all the more acceptable to require the applicants to show that the allegations contained in the passages from the novel that were found to be defamatory had a "sufficient factual basis" as they were not merely value judgments but also allegations of fact. The Court considered that the Court of Appeal had adopted a measured and reasonable approach.

 

Having regard to the content of the offending passages, the Court also considered that the Court of Appeal's finding that they were not sufficiently "dispassionate" was compatible with its case-law.

 

It was true that, while an individual taking part in a public debate on a matter of general concern was required not to overstep certain limits as regards respect for the reputation and rights of others, he or she was allowed to have recourse to a degree of exaggeration or even provocation, or to make somewhat immoderate statements. It was also true that the limits of acceptable criticism were wider as regards a politician-or a political party-such as Mr Le Pen and the

Front National, where as a result, Mr Le Pen had exposed himself to harsh criticism and had therefore to display a particularly high degree of tolerance in that context.

 

The Court considered that the Court of Appeal made a reasonable assessment of the facts in the applicants' case in finding that to liken an individual, though he be a politician, to the leader of "a gang of killers", to assert that a murder, even one committed by a fictional character, was "advocated" by him, and to describe him as a "vampire who thrives on the bitterness of his electorate, but sometimes also on their blood", "oversteps the permissible limits in such matters".  The passages were such as to stir up violence and hatred, going beyond what was tolerable in political debate, even in respect of a figure who occupied an extremist position in the political spectrum.

 

The Court therefore found that the "penalty" imposed on the applicants was based on "relevant and sufficient" reasons and the amount of the fine was moderate. The Court concluded that the measures taken against the applicants were not disproportionate to the legitimate aim pursued and that the interference with the applicants' right to freedom of expression was necessary in a democratic society.

 

As regards Liberation it appeared to the Court that Mr July was convicted because Liberation had published a petition which reproduced extracts from the novel containing "particularly serious allegations" and offensive remarks, and whose signatories, repeating those allegations and remarks with approval, denied that the extracts were defamatory in spite of a finding to that effect against Mr Lindon and Mr Otchakovsky- Laurens.

 

The Court reiterated that protection of the right of journalists to impart information on issues of general interest required that they act in good faith and on an accurate factual basis and provide "reliable and precise" information in accordance with the ethics of journalism. Special grounds were required before the media could be dispensed from their ordinary obligation to verify factual statements that were defamatory of private individuals.

 

Having regard to the moderate nature of the fine and the damages that Mr July was ordered to pay, to the content of the passages and to the potential impact on the public of the remarks found to be defamatory on account of their publication by a national daily newspaper with a large circulation, the Court found that the interference was proportionate to the aim pursued.

 

On Art.6 (1) in Mr July's case, the fear of a lack of impartiality stemmed from the fact that two of the three judges on the bench which upheld his conviction for defamation had already ruled on the defamatory nature of three of the offending passages from the novel which were cited in the petition. The Court understood that that situation might have aroused doubts in Mr July's mind as to the impartiality of the "tribunal" which heard his case, but considered that such doubts were not objectively justified. In addition, the Court was unable to find the slightest indication that those judges might have felt personally targeted by the offending article. There was therefore no evidence to suggest that the two judges in question were influenced by personal prejudice when they passed judgment.

 

The Court noted that, even though they were connected, the facts in the two cases differed and the "accused" was not the same. It was moreover clear that the judgments delivered in the case of Mr Lindon and Mr Otchakovsky-Laurens did not contain any presupposition as to the guilt of Mr July.

 

In the judgment given on March 21, 2001 in Mr July's case, the Paris Court of Appeal referred back, in respect of the defamatory nature of the passages in question, to the judgment that it had given on September 13, 2000 in the case of Mr Lindon and Mr Otchakovsky-Laurens. However, in the Court's view that did not objectively justify Mr July's fears as to a lack of impartiality on the part of the judges. The judgment of September 13, 2000 had found certain passages in the book to be defamatory. That aspect of the judgment was final and the Court of Appeal, or any other domestic court, was bound by it.

 

Concluding that Mr July's doubts concerning the impartiality of the Court of Appeal were not objectively justified, the Court held, unanimously, that there had been no violation of Art.6 (1).

 

Freedom of expression outweighed reputation in Lepoji v Serbia (App. no. 13909/05). There, the applicant complained about the criminal conviction and civil judgment against him, relying on Art.l0 and Art.6 (1). He had been convicted of a crime and ordered to pay compensation because he called the mayor "nearly insane" in an article which made allegations as to how he had spent public money. He also alleged that he was not legally entitled to be mayor and had been involved in criminality.

 

The Court was not satisfied that the criminal conviction and the compensation awarded were proportionate to the legitimate aim pursued. The applicant had written the article in question in the run-up to an election in his capacity as a politician. The target of the applicant's criticism was the mayor, himself a public figure, and the words used were not used to describe the mayor's mental state but rather to explain the manner in which he had allegedly been spending local taxpayers' money. Although the applicant was unable to prove before the domestic courts that his other claims were true, even assuming that they were all statements of fact and he clearly had some reason to believe that the mayor might have been involved in criminal activity and, also, that his tenure was unlawful. In any event, although the applicant's article contained some strong language, it was not a gratuitous personal attack and focused on issues of public interest rather than the mayor's private life. The reasoning of the criminal and civil courts, in ruling against the applicant, was not "sufficient", given the amount of compensation and costs awarded (equivalent to approximately eight average monthly salaries in Serbia at the relevant time) as well as the suspended fine which could, under certain circumstances, have been converted into a prison term. Bearing in mind the seriousness of the criminal sanctions involved, as well as the dubious reasoning that the mayor's honour was more important than that of an ordinary citizen, the Court concluded that there had been a violation of Art.l0. No separate issue arose under Art 6 (1).

 

Art.l0 was found to have been violated in the Chamber judgment of Glas Nadezhda EOOD and Anatoliy Elenkov v Bulgaria (App. no.14134/02).

 

The applicants were Glas Nadezhda EOOD, a limited liability company set up in 2000 and based in Sofia, and its only member and manager, Anatoliy Elenkov, a Bulgarian national, born in 1972 and living in Sofia. Mr Elenkov is a Christian and a member of the Protestant Church in Bulgaria.

In August 2000, Glas Nadezhda EOOD applied to the State Telecommunications Commission (the "STC") for a licence to set up a radio station to broadcast Christian programmes in and around Sofia. On November 2, 2000 the STC refused to grant the licence. That refusal was based on a decision taken on October 2, 2000 by the National Radio and Television Committee (the "NRTC") which found that, on the basis of the documents submitted by Glas Nadezhda EOOD, the proposed radio station would not meet its requirements to make social and business programmes or to target regional audiences. The proposals also failed to fully meet its requirements to produce original programmes, to ensure audience satisfaction and to provide the professional and technological resources required.

 

Glas Nadezhda EOOD brought proceedings before the Supreme Administrative Court for judicial review of the STC's decision. It submitted in particular that the courts should first examine whether the NRTC's decision was lawful before ruling on the STC's decision. The NRTC had not explained why the applicants' documents had failed to meet its requirements, in breach of the rules of procedure and the requirement that administrative decisions be reasoned. The Supreme Administrative Court dismissed that application on the ground that the STC was bound by the NRTC's decision and could not review its lawfulness. That court could not examine the lawfulness of the NRTC's decision either because the proceedings in question were against the STC. It could only review the NRTC's decision in separate proceedings.

 

Glas Nadezhda EOOD's ensuing application for judicial review of the NRTC's decision was dismissed on December 28, 2002. The Supreme Administrative Court held that the NRTC had total discretion in assessing whether an application for a broadcasting licence had met certain criteria and that that discretion was not open to judicial scrutiny. In the meantime, Mr Elenkov attempted to obtain a copy of the minutes of the NRTC's deliberations, which were meant to be available to the public under the Access to Public Information Act 2000. Despite his requests and a court order, Mr Elenkov has not yet had access to those minutes.

 

The Chamber noted that the interference with the applicants' freedom of expression had stemmed entirely from the NRTC's decision, which had been binding on the STC by law. The NRTC had not held any form of public hearing and its deliberations had been kept secret, despite a court order obliging it to provide the applicants with a copy of its minutes. Furthermore, the NRTC had merely stated in its decision of October 2, 2000 that Glas Nadezhda EOOD had not or had only partially corresponded to a number of its criteria. No reasoning was given to explain why the NRTC came to that conclusion or why it had exercised its discretion to deny a broadcasting licence.

 

No redress had been given either for that lack of reasoning in the ensuing judicial review proceedings because it had been held that the NRTC's discretion had not been reviewable. That, together with the NRTC's vagueness concerning certain criteria for programmes, had denied the applicants legal protection against arbitrary interference with their freedom of expression. Indeed, guidelines adopted by the Council of Europe's Committee of Ministers in the broadcasting regulation domain called for open and transparent application of regulations governing licensing procedures and specifically recommended that "all decisions taken ... by the regulatory authorities ... be ... duly reasoned [and] open to review by the competent jurisdictions". Art.10 had been breached.

 

Given its findings under Art.l0, the Court considered that it was not necessary to examine separately whether there had been a violation of Art.9. The Court found that the approach taken by the Supreme Administrative Court in the applicant's case, which had involved refusing to interfere with the NRTC's discretionary powers, had fallen short of Art.13 requirements, which obliged the domestic authorities to examine the substance of the Convention complaint. That meant examining whether the interference with the applicants' rights had answered a pressing social need and had been proportionate to the legitimate aims pursued. The Court therefore held that there had been a violation of Art.13 in conjunction with Art.l0.