11.

It was mainly because of the many disagreements between the parties concerning matters of fact which seemed capable of being of decisive importance in the settlement of the case and because account was taken of the way in which Mr Guillot had contradicted himself in respect of one of those matters that the Court decided that the applicant should appear in person and that four witnesses should be examined: Mr Benco, Mr Dominici, Mr Collard and Mr Malvicini. The applicant was subsequently given an opportunity of submitting in writing his observations on the evidence proffered. The oral phase of inquiry was especially useful in clarifying certain aspects which had until then been obscure of Mr Malvicini's behaviour, in particular, the way in which he had recovered the strips referring to the applicant's experiments, and the reason why a period of six months elapsed between the date when the strips were recovered and the further details of the charge of falsification in his memorandum, referred to above, of October 1971. Questioned on this point when making his statement, Mr Malvicini replied that after managing, during the first half of May, to trace and piece together the various pieces of strip relating to the experiments at issue, analysing the information and reaching the conclusions stated, he informed his immediate superior and the Director-General of the Centre by word of mouth. During May and June Mr Guillot was in hospital for a surgical operation and remained absent from work. On 24 June Mr Malvicini, as a result of the meetings he had had with his immediate superior and with Mr Blaise, another scientific officer, decided to ask Guillot for explanations conerning the experiments in question and Mr Guillot replied in a note of 9 July which reached Malvicini's office after the latter's departure for the summer holidays, which lasted for the whole of July. On his return, Guillot was again absent, this time on holiday, and so, too, was the Director General. Thus it was only at the end of September that Malvicini could ask for the Director-General's views on the question of the falsification of Guillot's experiments. The Director-General then asked Malvicini to put his comments in writing, which the latter did in the memorandum of 21 October. In his comments on what emerged during the hearing, the applicant submitted nothing capable of casting doubt on the accuracy of this account of the way in which events developed. On the other hand, the oral inquiry failed to supply any reasons for the conflicting statements made by the applicant and produced others which, taken as a whole, seriously reflect on his credibility. It was first of all established that on 26 and 27 April, immediately prior to the period in which Mr Guillot carried out the experiments in question, Mr Malvicini had, with the help of his colleagues, carried out a preliminary experiment of the same type, which had negative reaults, that is to say, which did not demonstrate the gas dissolution phenomenon asserted by the applicant. It is clear from the evidence of the witnesses that Guillot was perfectly well aware of the experiment and it is impossible to understand why he persisted so long in saying that he was not. It was only in the written observations submitted after the examination of the witnesses that the applicant for the first time admitted to having been aware of the preparations and of the ‘essais’ carried out by Mr Malvicini on 26 and 27 April 1971, while at the same time claiming that they could not be described as proper experiments because of the use of a hand-pump in place of the electric pump, subsequently used by the applicant, which was more watertight. Again, in his statement, the applicant maintained that the xenon-131 which he used in the experiments at issue, had been prepared by him at the Ispra establishment and then mixed with xenon-133 from the Mol Research Centre. On the other hand, in the said ‘technical appendix’, submitted together with the memorandum of 7 May 1971 to the Director-General of the Centre, he had declared that the mixture of xenon-131 and xenon-133 was supplied ready prepared by the Mol Centre. As Mr Collard pointed out, if everything which the applicant stated orally were true, it would have been hardly proper on his part never to have said a word about it earlier since the use, for the mixture of the two gases, of a different type of xenon-131, which in various important respects differed from that supplied by the Mol Centre, would have produced unavoidable repercussions on the course of the experiments and, accordingly, on the assessment of their results. However, the evidence of Mr Dominici would appear to confirm what the applicant had previously written in the report referred to, namely that gases prepared in the Mol Centre were alone involved. A further contradiction is to be found in Mr Guillot's statements concerning the length of time taken in bubbling the gases through the liquid the morning of Thursday 29 April. In his written report he had indicated that this lasted from 10 to 15 minutes; in oral evidence he claimed to have carried out the operation for about an hour. It must be borne in mind that it is important to establish the precise length of this period if the results of the experiments are to be correctly calculated. Again, on the subject of the correction factor stated to have been used to allow for the disturbance caused by the alleged accidental displacing of a flask, the applicant claimed, in his handwritten report to Mr Malvicini, to have applied this factor (expressed as a four-figure value, determined apparently with a view to restoring the line of the curve to correspond to that of the previous day) to the results relating to xenon-131, but not to those relating to xenon-133. But in the subsequent report for the Director-General he stated that he had applied the correction factor to both gases, thus depriving the results of any value, as he himself had later to acknowledge in reply to a question put to him during his examination by the Judge-Rapporteur. Again, on the question of the correction factor, the witness Collard confirmed what had already been pointed out in the ‘Boulenger Report’, namely that Mr Guillot had also applied the said coefficient to the measurements preceding the last six. This justifies the conclusion that Guillot's statement about the tilting of the flask is untrue; it is quite possible that the applicant invented the alleged incident of the flask in order to answer Mr Malvicini's criticisms relating only to the last six measurements (namely those for which Malvicini had recovered the Olivetti computer strips at the time of his conversation with Guillot on 3 May 1971 and which therefore were the sole subject of his original remarks). This supposition is confirmed by the fact, now proved, that in his first report to Malvicini Guillot made no reference to any incident which occurred during the experiments or to any corrections made by him to the data supplied by the analyser. Mr Dominici was present at the meeting during the morning of Monday 3 May 1971 between Malvicini and Guillot, in the course of which the latter was questioned about the difference between the data in his written report concerning xenon-131 and the data given on the computer strip which Malvicini had been able to recover two days earlier. Mr Dominici's evidence confirms Malvicini's statement that Guillot had informed him, only after being obliged to do so as a result of Malvicini's challenge, of the corrections he had made to the data provided by the automatic printer in the case of one of the gases. Conscious of the equivocal nature of his conduct the applicant has, since his note of 9 July 1971 to the Director-General and, later, during the whole of the present proceedings, maintained that since 30 April 1971, the final day of the experiments in question, he voluntarily informed Malvicini by word of mouth that the results had been ‘corrected’. In the light, however, of Mr Dominici's evidence about the way in which the discussion developed on the morning of 3 May, it is difficult to attach any credence to the applicant's statement. Even on the question of the way in which, in working out the results, Mr Guillot remedied the defect in the printing mechanism affecting the units column, the applicant's explanations are vague and inconsistent, he stated that he had on occasion inserted 1 for the missing figure, and 9 on other occasions, without however explaining on the basis of what standard of frequency he chose one figure on one occasion and another on others. Moreover, from the strips which are not in dispute and from the figures given by Mr Guillot in his report, there is every reason for believing that he consistently used the average value 5 for the missing figure. In conclusion I should like to draw attention to the fact that, in giving his evidence, the applicant for the first time confessed to a belief that part of the handwritten entries of figures and words made on the automatic printer strip referring to measurements Nos 37 to 41 were in his own hand. This admission considerably weakens the attitude of total denial which he had previously adopted. Finally, the fact that, in an attempt to demonstrate that the experts' reports submitted by the Commission are unreliable, the applicant has become entangled in this web of untrue, contradictory and inconsistent statements shows up the weakness of his position. In my view, the foregoing considerations, taken as a whole corroborate the statements and technical opinions contained in the reports put in by the Commission, particularly in the reports drawn up independently by the experts at the Mol Centre and by the administrative committee of inquiry. I have, moreover, already emphasized that for the application to be dismissed it is necessary to do no more than establish that the conduct of the applicant was such as to justify the accusations made against him by his immediate superior and, in addition, that the Commission was guilty of no illegal act in refusing to disavow Mr Malvicini. I consider these facts to have been established.