ITEMID: 001-69418
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BLACKSTOCK v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 8. The applicant was born in 1954 and lives in Bedford.
9. On 5 June 1981 the applicant was convicted of wounding (the deliberate shooting of a police officer) with intent to resist arrest, for which he was sentenced to life imprisonment. He was also sentenced to concurrent terms of 15 years for attempted robbery and firearms offences. His tariff was set at 17 years.
10. On 8 June 1998, upon the expiry of his tariff, the applicant’s detention was reviewed by a “Discretionary Lifer Panel” (“DLP”) of the Parole Board. At the time of his review, the applicant was a “category B” prisoner (prisoners being given a security classification ranging from category A (most serious) to category D). Life prisoners are normally expected to pass through each of the categories prior to release. While he would therefore ordinarily have been expected to progress to a category C prison before being considered suitable for transfer to a category D (“open”) prison, the applicant applied to be transferred directly to an open prison. His legal representative at the review hearing made it clear that he was seeking a transfer only, not release on licence.
11. Among the material which the DLP had before it were two reports (from Mr Cochrane, the prison probation officer, and Dr Williams, a psychiatrist commissioned on behalf of the applicant) which recommended a transfer of the applicant to a category D prison. Those reports stated that the applicant needed to be tested with a view to preparing him and considering him for release on licence, and that such testing could not take place in a category C prison and needed to take place in category D conditions. They were of the view that the risk to the safety of the public of a transfer to category D was acceptable. The third report in front of the DLP from Dr Narayana, a visiting consultant psychiatrist, was unfavourable to the applicant and neither recommended transferring him to category D nor directing his release. Mr Cochrane and Dr Williams gave oral evidence to the DLP. Dr Narayana did not. The conclusions of the latter were criticised by Dr Williams as being unsupported by evidence or reasoning.
12. The DLP did not recommend that the applicant should be released. However, it recommended that he should be transferred from a category B to a category D prison. Were that recommendation not to be accepted by the Secretary of State, the DLP recommended an early review after 12 months (i.e. in June 1999).
13. The decision letter of the DLP to the applicant of 10 June 1998 stated, in relevant part:
“1. The Crime (Sentences) Act 1997 requires the Parole Board to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you be confined. The panel of the Board who considered your case on 8 June 1998 were not so satisfied and therefore have not directed your release at this stage. This decision is binding upon the Secretary of State.
...
2. In reaching their decision that you are not yet suitable for release on licence, the panel took particular account of the contents of the reports which were before them, most of which did not recommend release and concluded that you remain a risk, at least until further work has been done on social skills and enhanced thinking. The panel noted the fact that your representative expressly stated that she did not ask for a recommendation for release at this stage.
3. The panel recommended to the Secretary of State that you should be transferred to a category D prison. They made this recommendation on the basis of the opinions expressed by Mr Cochrane and Dr Tegwyn Williams that while recognising the progress which you have made, and improved behaviour and attitude, further work remains to be done, but that this could more appropriately be carried out in open conditions, which would give an opportunity to test out your commitment in less structured conditions which are closer to the community. The panel concluded, on the basis of the opinions of these witnesses, that the risk of a transfer to category D conditions would be acceptable.
4. The panel preferred the evidence and report of Dr Tegwyn Williams to the report of Dr Narayana. The panel felt that Dr Narayana’s conclusions (upon which the Secretary of State relied) were not supported by evidence or by any reasoning which preceded them.
5. The panel made no recommendation to the Secretary of State with regard to an early review. However, in the event of the Secretary of State not accepting the panel’s recommendation for transfer to category D conditions, the panel would recommend an early review in 12 months time, and would hope that consideration would be given to a transfer to less secure conditions meanwhile.
6. The decision not [to] release you is binding upon the Secretary of State but it is for him to decide whether to accept the recommendation to transfer to category D conditions.”
14. On 29 September 1998 the Secretary of State rejected the Parole Board’s recommendation that the applicant should be transferred to a category D prison. He directed that the applicant should be moved to a category C prison. The reasons for his decision were set out as follows in a memorandum of 29 September 1998:
“The Secretary of State has carefully considered all the papers which were prepared for your recent Parole Board review, including the reports from staff at both Full Sutton and Nottingham, your own and your solicitor’s representations and the recommendation of the Parole Board. He is not prepared to accept the Parole Board’s recommendation for your transfer to open conditions for the reasons set out below.
The Secretary of State notes the recommendations made by the Board and by report writers, the majority of whom support a progressive move. He notes in particular, your willingness to co-operate with offence-related treatment work and the progress you have made as a result, your improved behaviour and the remorse you have shown. However, he is concerned by references to your tendency, on occasions, to be aggressive, unwilling or unable to consider fully the likely consequences of your actions or behaviour or see how others perceive your behaviour.
In considering the Parole Board’s recommendation for your transfer to open conditions, which is generally a time of final testing in more normal conditions as a prelude to release, the Secretary of State needs to be satisfied that you have made sufficient progress towards tackling your behavioural problems so as to minimise the risk of your reoffending, or risk to the public while in open conditions or when release takes place.
The Secretary of State notes that you have not been tested in category C conditions. Life sentenced prisoners are normally required to spend a period in the lower security conditions of a category C prison to enable them to adjust to, and experience, a less secure environment before eventually progressing to open conditions. He considers this to be all the more important in your case in view of the very long period you have spent in maximum security conditions, much of which has been spent in segregation units, and notes that you are still held in category B conditions.
He also considers that, although you have attended offending behaviour courses, and appear to have benefited from them, that work needs to be reinforced and tested in the lower security environment of category C conditions before consideration is given to your transfer to open conditions. In particular, further offence-related work needs to be tackled, together with continuing work to develop more mature, reflective styles of thinking and behaving and enhanced interpersonal skills.
You will therefore be transferred to a suitable category C establishment. However, in the light of the positive reports from staff at both Full Sutton and Nottingham, your next review will begin 12 months thereafter.”
15. On 7 October 1998, transfer instructions were issued for the applicant’s transfer to HMP Ranby, a Category C prison. This was endorsed as a "priority career move" in view of the need for a review of the applicant’s continued detention to commence twelve months after transfer.
16. On 14 October 1998, the applicant submitted a complaint/request form objecting to the transfer to HMP Ranby as inconvenient for social visits and stating his preferences for other category C prisons.
17. In December 1998, it was decided to move the applicant to HMP Wayland (category C) and the applicant was informed that the other prisons which he had listed were either unsuitable or had long waiting lists. At this time no place at Wayland was immediately available: he was fifth on the list.
18. On 1 April 1999, the applicant was moved to Wayland.
19. On 3 November 1999 the applicant’s application for judicial review of the Secretary of State’s decision not to reclassify him from a category B to a category D prisoner was dismissed by the High Court. This was on the basis that there had not been any procedural irregularity in the decision-making process. During the course of his judgment, Mr Justice Jowitt said the following:
“It is clear that the decision which the Secretary of State had to make in this case was an important one. It was important because such a decision has a potential to affect the release date of a prisoner in that delay in transfer to category D has the potential to delay of release on parole.”
20. Mr Justice Jowitt also made, inter alia, the following observations:
(a) there had not been any finding by the DLP that there would be a regression in the behaviour or the attitude of the applicant were he to be placed in a category C prison;
(b) the DLP had taken “an unusual course” in recommending that the applicant should be transferred from a category B to a category D prison, as, ordinarily, a life prisoner would pass through the categories from which he had started, therefore going through category C into category D;
(c) counsel for the applicant had not suggested that the decision of the Secretary of State not to accede to the recommendation of the DLP was open to attack other than on procedural grounds.
21. The applicant did not seek leave to appeal and was advised that he did not have any right of appeal against the judgment of the High Court.
22. The applicant’s subsequent review by the DLP took place at an oral hearing on 25 April 2000, over 12 months after his arrival in category C conditions and over 22 months after his previous review in June 1998. On that occasion, the DLP decided not to direct his release, but recommended that he should be transferred to open conditions. Its decision letter to the applicant of 2 May 2000 stated, inter alia, as follows:
“5. Until your arrival at Wayland you had been in conditions of greater security. During your year at Wayland the panel accepts that you have continued to make progress and your behaviour has been good. You have done all that has been required by your sentence plan and you have made sufficient progress towards tackling your offending behaviour to justify your move to open conditions. So far as risk is concerned, however, you have experienced testing only in closed conditions.
6. Having regard to your serious offending, your behaviour in prison up to May 1994 and the fact that you have never been tested in open conditions, the panel considers that your risk is not as yet sufficiently reduced to justify your immediate release.
7. ... Most report writers recommended you for open conditions but not for release. Until you have been tested in open conditions the panel cannot be satisfied that your risk is sufficiently reduced for your release.
8. Furthermore your release plan was not realistic or reasonable ...
9. Your move to open conditions is needed primarily to test further your motivation to remain of good behaviour and your ability to cope with stress and frustration and to enable you to be gradually reintroduced to life in the community outside prison. ... In view of the fact that in June 1998 you were recommended as suitable for release and your progress since then, the panel recommended that you should move to open conditions at the earliest opportunity. Although several report writers recommended a review after 12 months from your arrival in open conditions the panel considered that this period was probably insufficient to enable you to complete the testing which you need and therefore made no recommendation for an early review.”
23. The recommendation that the applicant be moved to open conditions was accepted by the Secretary of State on 24 July 2000.
24. At the applicant’s subsequent review on 30 April 2002, the DLP was satisfied that it was no longer necessary for the protection of public that he be detained and therefore directed his release from prison.
25. A person convicted of certain serious offences may be sentenced to life imprisonment at the discretion of the trial judge. At the time of sentence, a “tariff” is imposed which represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. A life prisoner will not be released on licence until after the tariff period has been completed.
26. Pursuant to section 28 of the Crime (Sentences) Act 1997, after the tariff has expired, a discretionary life prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public.
27. The Parole Board further has power, should it choose not to direct the release of a prisoner, to make recommendations to the Secretary of State concerning the detained person’s future progress.
28. Following a review, a discretionary life prisoner has a statutory right to have his case reviewed again by the Parole Board two years after the previous review.
29. If the Parole Board decides not to order release, it frequently gives a recommendation as to the timing of the next review. That is only a recommendation and the decision whether to accept that recommendation is taken by the Secretary of State. If the prisoner seeks an earlier review, he can make representations to the Secretary of State, whose decision may be challenged by judicial review. The Secretary of State, of his own motion, can direct an earlier review.
30. The categorisation of prisoners is the function of the Secretary of State. There are four categories of classification of prisoners, namely:
(i) category A prisoners, whose escape would be highly dangerous to the public or to the police or to the security of the nation;
(ii) category B prisoners, for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult;
(iii) category C prisoners, who cannot be trusted in open conditions, but who do not have the ability or the resources to make a determined escape attempt;
(iv) category D prisoners, who can be trusted in open conditions.
31. On 7 December 1994 the Secretary of State stated:
“In recent years, successive Secretaries of State have recognised that, for the majority of life sentenced prisoners, a period in open prison conditions is generally vital in terms of testing the prisoner’s suitability for release and in preparing him for a successful return to the community. It is, therefore, now normally the practice to require the prisoner to spend some time in open conditions before release and to arrange a further review while the prisoner is in an open prison for a formal assessment of his or her progress. I intend to continue with this practice and the first Parole Board review will therefore normally serve the purpose of assessing the prisoner for open conditions.”
32. On 9 July 1998 the Secretary of State stated:
“... the first Parole Board review in the case of a life sentenced prisoner begins three years before the expiry of tariff. The purpose of this review is normally to enable the prisoner to be assessed for, and, where appropriate, transferred to, open conditions (category D) where he or she may be tested in conditions of lower security, fully assessed by staff and prepared for release. A further Parole Board review is then held to determine whether the level of risk is low enough to enable the prisoner to be safely released on life licence. Where the level of risk is considered to be acceptable, the objective is to release the prisoner on or very shortly after tariff expiry.”
33. A direction to the Parole Board from the Secretary of State under section 32(6) of the Criminal Justice Act 1991 (which preceded the Crime (Sentences) Act 1997) stated:
“A period in open conditions is essential for most life sentence prisoners (“lifers”). It allows the testing of areas of concern in conditions which are nearer to those in the community than can be found in closed prisons. Lifers have the opportunity to take home leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.”
34. On 2 October 2000, the Human Rights Act 1998 came into force, permitting the provisions of the Convention to be invoked in domestic proceedings in the United Kingdom.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
5-5


ITEMID: 001-24064
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: REEVES v. NORWAY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Ms Pamela Kay Reeves, is a national of the United States of America (the USA), who was born in 1969 and lives in Smyrna, Georgia, the USA. She is represented before the Court by Mr T. Randby, a lawyer practising in Oslo.
The respondent Government were represented by Mr H. Harborg of the Attorney general’s Office (Civil Matters) as Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant and T.F. met in New York in 1993. The same year she moved to Norway and settled in Bergen. In December 1994 they married. Together they have a daughter born in September 1998. The couple separated in the spring 1998 and later divorced. The applicant and her former husband had acquired an undetached house in Bergen in 1995, in which she continued to live with her daughter until 30 December 1998.
On the latter date, at around 11 p.m., the house was severely damaged by fire. As was subsequently found established in the ensuing judicial proceedings mentioned below, ten, or maximum fifteen, minutes elapsed between the applicant’s leaving the house and a neighbour discovering the fire.
On 15 September 1999 the applicant was charged with (1) having set fire, on her own or together with others, to her own main residence home and causing arson, entailing damages amounting to NOK 1,000,000; (2) having done so in order to obtain insurance compensation; (3) having reported to the police a theft of a Rolex watch and other valuables, worth NOK 90,000, despite the fact that she was in the possession of the watch and the other objects were lent to friends of her (Articles 291, 292, 272, first and second paragraphs, 171 (1) of the Penal Code and section 13 of the Fire Prevention Act together with Article 62 of the Penal Code).
The Bergen City Court (byrett) held a trial hearing over 7 days, during which it heard 26 witnesses, including fire experts, and carried out an on site visit of the property. On 23 March 2000 the City Court convicted the applicant of the charges and sentenced her to two years’ imprisonment, from which the 30 days she had spent in pre-trial dentition were to be deducted. In addition, she was ordered to pay to the Vesta Forsikring AS, the insurance company with which the house was insured, NOK 1,430,347 in compensation, corresponding to the insurance payments made by the company. She was held liable under the general principle of law on civil compensation (“culpa-grunnlag”) because she had with intent caused the insurance company damage.
The applicant appealed against the conviction and sentence as well as the compensation order to the High Court. Sitting with three professional judges and four lay judges (meddommere), the High Court heard the case between 8 and 23 January 2001, during which it took evidence from 34 witnesses, including fire experts, and made an on site visit of the property.
On 16 February 2001 the High Court maintained the conviction of the applicant on the charges of insurance fraud with respect to her declarations of thefts of certain objects, but acquitted her with respect to the remaining charges. It sentenced the applicant to 30 days’ imprisonment, from which the period (30 days) spent in custody were to be deducted. Moreover, the High Court upheld the City Court’s judgment in so far as concerns the order that the applicant pay compensation.
In reaching the above conclusions the High Court was divided. All the professional judges and two of the lay judges voted for the applicant’s conviction on the charge of false declaration of theft, the other two lay judges voted against.
As regards the charges related to arson, the majority (composed of two professional judges and two lay judges) voted for the applicant’s conviction, finding it established beyond reasonable doubt that she had with intent started the fire and this with the intention to obtain insurance compensation.
The minority (composed of one professional judge and two lay judges) voted for the applicant’s acquittal, finding it not proven beyond reasonable doubt that the house had been set fire to and that it could not be excluded that the fire had its origin in the house’s electric installations. Under Article 35 of the Code of Criminal Procedure, requiring a minimum of five votes for conviction, the votes of the minority, was decisive and the applicant was accordingly acquitted of these charges.
As to the issue whether the applicant in the specific circumstances should be held liable to pay civil compensation, the judgment contained the following reasons:
“The High Court’s majority refers to its above-mentioned observations with regard to the fire.
“Justice Einarsen finds that on the balance of probabilities there is a clear probability that the defendant is guilty of setting the fire as described in the indictment even though in his opinion the evidence in the case does not suffice to establish criminal guilt as regards these charges for the reason that he is unable to exclude that the fire could have been caused by an electrical fault.”
...
In the [new] majority’s view there is no doubt that the conditions for making an award for compensation are fulfilled, even though there is internal disagreement as to the extent to which the evidence satisfies the criminal burden of proof.... There is no dispute as to the other conditions for compensation or its size. ...
The minority ([the two lay judges of the minority]) finds that the conditions for compensation have not been fulfilled.”
The applicant sought to appeal against the above judgment and the High Court procedure but, on 29 June 2001, the Appeals Selection Committee of the Supreme Court refused her leave to appeal.
Under Norwegian criminal law there are four basic conditions that must be met in order to establish criminal liability:
(1) the accused has committed the proscribed act or omission (actus reus) which is contrary to a provision of the Penal Code or to a special statutory penal provision in force at the time when the act was committed;
(2) there are no exonerating circumstances (e.g. self-defence);
(3) the accused has acted with intent (mens rea), unless otherwise expressly stated in the relevant penal provision; and
(4) the accused was of sound mind at the time of the commission of the offence.
As a general rule, the prosecution has to prove these four elements beyond reasonable doubt. Any reasonable doubt shall benefit the accused (in dubio pro reo).
Reasons are to be given for the High Court’s decision on criminal liability, unless it sits with a jury, and for its decision on compensation (Article 40, second sub-paragraph, of the 1981 Code of Criminal Procedure and Article 144 (4) of the 1915 Code of Civil Procedure).
Pursuant to Article 35 of the Code of Criminal Procedure:
“A decision on the issue of guilt in disfavour of the person charged requires five votes in the High Court. ...
Otherwise all decisions shall be made by an ordinary majority unless otherwise provided. ...”
Under the Code of Criminal Procedure, a civil claim may be pursued in connection with a criminal trial, provided that the claim arises from the same set of facts. Consequently, the civil claim of a victim may be decided either in connection with a criminal case or in separate proceedings. Article 3 reads:
“Any legal claim that the aggrieved person or any other injured person has against the person charged may, in accordance with the provisions of chapter 29, be pursued in connection with such cases as are mentioned in Article 1 or Article 2, provided that the said claim arises from the same act that the case is concerned with. On the said conditions the following claims may also be pursued:
(4) recourse claims which an insurance company or any other person that has paid out compensation, insurance or a pension on account of the damage has against the person charged.
The claims specified in the first and second paragraphs are deemed to be civil claims and shall be dealt with in accordance with the provisions of chapter 29...”.
Other provisions concerning civil compensation claims may be found in Chapter 29 of the Code of Criminal Procedure, notably the following:
“In a public prosecution the prosecuting authority may on application pursue such civil legal claims as are specified in Article 3. ...”
“Any person who has any such civil claim as is specified in Article 3 may himself pursue it in connection with a public prosecution if a trial hearing is held. ...”
“A separate appeal against a decision on civil claims shall be brought in accordance with the provisions of the Code of Civil Procedure. The same shall apply to a reopening of the case.”
A claim for compensation for damage submitted by a victim under the general principles on the law of torts is subject to his or her showing that the alleged perpetrator, with intent or gross negligence, committed the wrongful act. The test is normally the balance of probabilities and the burden of proof lies with the claimant. This burden may be heavier where liability may have serious consequences for the respondent’s reputation, though it will be less than for criminal liability. The competent court has to determine liability in the light of all the evidence available at the time of the adjudication of the case.
The objective constitutive elements of acts which may give rise to both criminal liability and civil liability to pay compensation are not always the same. The subjective constitutive elements in principle differ: normally criminal liability requires intent whereas liability to pay compensation requires gross or simple negligence. There may be exonerating circumstances – such as self-defence, necessity, provocation or ignorance – which exclude criminal liability but which do not exclude liability to pay compensation. A person of unsound mind may be exempted from criminal liability but not necessarily from civil liability to pay compensation (see Norges Offentlige Utredninger (Norwegian Official Reports) 2000:33, “Erstatning til ofrene hvor tiltalte frifinnes for straff” (“Compensation to victims in cases where the accused has been acquitted on the criminal charge”), a study by J.T. Johnsen, Professor of Law, Chapter 1, section 1.3.2).
The purposes of the criminal law and the law on compensation are not identical. While deterrence and restoration are important considerations in both areas of law, the former places emphasis on retribution and the latter on the allocation of financial loss. The two systems also supplement one another in important respects. While criminal-law sanctions are particularly designed to deter actual and potential offenders from committing offences, those of the law of compensation are particularly designed to meet the aggrieved person’s need for economic redress (ibid., Chapter 1, section 1.2.1).


ITEMID: 001-114508
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: M.S. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The applicant, M.S., is a Somali national who was born in 1980 and lives in Swinderby.
3. The applicant arrived in the United Kingdom at the age of fifteen with his father and siblings. His mother appears to have been in the United Kingdom already. He had left Somaliland at the age of eight and spent the intervening years in Ethiopia. His father claimed asylum with his family, including the applicant, as his dependants; however, this claim was refused. The family were granted exceptional leave to remain and, in time, indefinite leave to remain.
4. The applicant was convicted of arson and abusive or threatening behaviour on 14 March 2000 and sentenced to 33 months in a young offenders’ institution. Throughout 2005 and 2006, he was convicted of numerous counts of failure to surrender to custody and shoplifting, for which he was fined or sentenced to short periods of imprisonment or community service. On 13 September 2007, he was convicted of attempted robbery with an offensive weapon in a public place and sentenced to 2 ½ years’ imprisonment. He was notified of his liability to deportation as a result of this conviction on 6 December 2007.
5. The applicant raised a fear of return to Somaliland on 16 December 2007, but on 10 May 2008 he informed the authorities in writing that he did not wish to pursue an asylum claim. He applied to and was accepted onto the facilitated voluntary return scheme on 28 July 2009, but withdrew from the scheme on 3 August 2009 on the basis that he wished to pursue an asylum claim. The basis of his claim was that he would be at risk in Somalia due to his father’s previous political involvement. The applicant’s asylum claim was refused by the Secretary of State on 17 December 2009.
6. The applicant’s appeal against the refusal to revoke his deportation order was dismissed by the First-tier Tribunal (Immigration and Asylum Chamber) on 22 April 2010. The Tribunal upheld the Secretary of State’s certification that the applicant, as a danger to the community, was excluded from protection under the Refugee Convention, but went on to consider his claim under Articles 2 and 3. It was found to be wholly incredible that he should be at risk in Somaliland on the basis of his father’s former political activities: not only had his father allegedly been involved in politics in central Somalia and not Somaliland, but his father’s asylum claim upon entry to the United Kingdom had failed. If the applicant’s father was not considered to be at risk in 1995 then, there was no reason that his son should be at risk now. The Tribunal noted that there was a functioning administration in Somaliland, unlike the rest of Somalia, and that the general security situation was stable. The applicant had been born in Somaliland; his father was from the area; and his mother was a member of the Isaaq, which was the majority clan in Somaliland. The applicant also had relatives in neighbouring Djibouti and possibly in central Somalia. He had not established that his rights under Articles 2 and 3 would be breached by his return to Somaliland. In terms of Article 8 it was not considered that the applicant had family life in the United Kingdom and his private life was limited given the amount of time he had spent incarcerated. The substantial public interest in his deportation, given his long history of offending, rendered his deportation proportionate.
7. The applicant sought permission to appeal to the Upper Tribunal; however, this application was refused on 9 August 2010. The applicant sought facilitated voluntary return to Somaliland but again withdrew from the scheme on 7 October 2010. He was released on bail on 12 October 2010 but was rearrested on 11 February 2011 for racially or religiously aggravated assault. He was remanded on bail but rearrested on 22 June 2011 pending his deportation, which was set for 20 July 2011 to Somaliland.
8. The applicant sought an interim measure from this Court to prevent his removal and on 20 July 2011, the Acting President of the Chamber decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be removed until further notice.
9. On 29 November 2011, the Chamber considered information received from the Government regarding the safety of returns to Somaliland and all the facts of the applicant’s case, and decided to lift the interim measure previously indicated under Rule 39.
10. Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good.
11. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision on the grounds, inter alia, that the decision is incompatible with the Convention.
12. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
13. The central issue arising in this case, heard by the High Court on 14 October 2009, was a claim for damages for false imprisonment by a Somali national who had been held in immigration detention from 16 April 2004 to 21 August 2007. The Government had sought his deportation, as a foreign national criminal, to Somaliland, from where it was believed that the claimant originated. However, due to various factors, the applicant’s deportation could not be arranged and he was eventually released on immigration bail. In finding that, from June 2007, the applicant’s detention had been unlawful, the High Court referred inter alia to a Memorandum of Understanding between the Government of the United Kingdom and the Somaliland authorities concluded in 2003 and renewed in 2007, which dealt with the question of returns.
14. The Memorandum of Understanding provided that the Somaliland authorities would accept the return of persons who had no right to remain in the United Kingdom and had a right of return to Somaliland. Such return might be voluntary or enforced as regards the individual, but required the prior consent of the authorities. Such consent would be granted only after the provision of adequate bio-data to satisfy the Somaliland authorities that the individual in question had a sufficient connection to Somaliland, which would generally entail that the person came from a clan with a sizeable representation in the region, and/or had been born (or had parents who had been born) in the region, and/or had family currently residing there. Such bio-data was, in practice, difficult to obtain without a significant level of cooperation from the proposed returnee. Furthermore, on a separate but related note, there had been no practical possibility of enforced returns between August 2004 and July 2006 due to a refusal by all air carriers operating flights to Somaliland to carry passengers who had not consented to travel.
15. In the case of the claimant in question, his unwillingness and inability to provide sufficient bio-data to satisfy the Somaliland authorities’ stringent requirements meant that, by June 2007, it should have become evident that his deportation to Somaliland would not be achieved within a reasonable time.
16. The latest report published by the UNHCR, Eligibility Guidelines for assessing the international protection needs of asylum-seekers from Somalia, published on 5 May 2010, stated as follows:
“The self-declared Republic of Somaliland, which has not been recognized by the international community as an independent sovereign state, has been relatively peaceful and secure with the exception of the problematic presidential elections process...
UNHCR considers that a situation of generalized violence or events seriously disturbing public order does not exist to the extent that an individual present in either Puntland or Somaliland would be at risk of serious harm.”
17. The most recent Operational Guidance Note on Somalia, published on 15 December 2011, provided:
“Somaliland and Puntland, are in general relatively safe. A long-standing dispute exists over the territories of Cayn, Sool and Sanag, with both Somaliland and Puntland claiming them and the Sool-Sanag-Cayn alliances fighting to remain part of the original state of Somalia. General insecurity resulting from armed violence continues to be the main protection concern in the North-West regions of Somaliland and there has also been an increase in violence and assassinations in Puntland, since the beginning of 2011, mostly in Galkayo, Bossaso and areas around Galgala.
There are major protection concerns around [internally displaced person] settlements both in Puntland and Somaliland, which include overcrowding, severe levels of malnourishment, economic exploitation of children and a lack of physical security, rapes, gang rapes and other instances of sexual and gender-based violence.
The authorities in Somaliland will only admit failed asylum seekers returning from European countries who originate from their territory or those who have close affiliations to the territory through clan membership. In the case of majority clan affiliates, this means those associated with the Isaaq in Somaliland. In Somaliland taxis and 4x4 vehicles can easily travel from Hargeisa, Burao, Lasanod and Garowe. The main transportation between Somaliland and South Central is by lorry. People travel by air between Mogadishu and Hargeisa. The Tribunal in AMM and others ... also found that a person from Somaliland will not, in general, be able without real risk of serious harm to travel overland from Mogadishu International Airport to a place where he or she might be able to obtain an unofficial travel document for the purposes of gaining entry to Somaliland, and then by land to Somaliland. This is particularly the case if the person is female. A proposed return by air to Hargeisa, Somaliland (whether or not via Mogadishu International Airport) will in general involve no such risks.”
18. In a report titled Human Rights Challenges: Somaliland Facing Elections and published on 17 March 2009, Amnesty International found that:
“While overall human rights and humanitarian conditions have continued to worsen in southern and central Somalia, as well as in Puntland, a stable Somaliland has devoted attention to democratization, institutional capacity-building, stability and development in its 18-year pursuit of international recognition of self-declared independence. While Amnesty International takes no position on Somaliland’s claim to independence, the international community should provide the de facto authorities of the Government of Somaliland with necessary support to promote the rights of its people, and to ensure its capacity to firmly establish broad human rights protections.”
In their Annual Report on Somalia, published on 13 May 2011, Amnesty International observed:
“Presidential elections were held on 26 June in the Republic of Somaliland. Ahmed Mohamed Mahamoud Silanyo, a former opposition politician, was declared the new President in July. According to independent observers, the elections were generally free, fair and peaceful. However, media freedom organizations reported some instances of restrictions on journalists in the lead-up to the elections.
Tensions flared in the border areas of Sool and Sanaag claimed by Puntland. A new armed group clashed with Somaliland security forces from May onwards. Thousands of people were reportedly displaced by the clashes.
Displaced people from southern and central Somalia continued to live in difficult conditions.
Minority groups continued to suffer discrimination.”
19. A Human Rights Watch report, Hostages to Peace: Threats to Human Rights and Democracy in Somaliland, was published on 13 July 2009 and stated:
“What Somaliland has accomplished over the years is both improbable and deeply impressive. While much of south/central Somalia remains mired in chaos and bloodshed, Somaliland has built a hard-won peace that it has now maintained for more than a decade. That peace has sheltered Somalilanders from the horrific abuses that have destroyed so many lives across Somalia. At the same time, Somaliland has done much to build the foundations of democratic governance grounded in respect for fundamental human rights. In 2003 and 2005 it held competitive and credible national elections, including parliamentary polls that put the territory’s House of Representatives firmly in the hands of the political opposition. There is a vibrant print media and an active and independent civil society. Somaliland has accomplished these things primarily on its own, in one of the world’s most volatile regions.”
Human Rights Watch’s more recent World Report 2011 – Somalia, published on 24 January 2011, stated:
“After almost two years of delay, Somaliland finally held its presidential election on June 26, 2010. International observers deemed the polls reasonably free and fair despite an isolated incident in the Sool region, where one person was killed. The incumbent President Dahir Riyale accepted defeat and peacefully ceded power to an opposition candidate, further advancing hopes for stability in the northern region.
The situation remains unstable in the contested regions of Sool, Sanag, and Cayn, which lie between Somaliland, in Somalia’s northwest, and the autonomous state of Puntland in the northeast. Thousands of civilians were displaced by clan-based clashes and conflicts over resources in the disputed area in June.”


ITEMID: 001-86043
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF CHERVONETS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
TEXT: 4. The applicant was born in 1940 and lives in Kharkiv.
5. On 23 October 2002 the Dzerzhinsky District Court of Kharkiv (hereinafter “the Dzerzhinsky Court”), upon the applicant’s claim, ordered the Department of the State Pension Fund in Dzerzhinsky District of Kharkiv (Дзержинське районне відділення Пенсійного Фонду України у м. Харків, hereinafter “the Pension Department”) to recalculate in Ukrainian hryvnas the applicant’s salary, which he received in 1985-1989 in Soviet roubles, in order to establish the correct amount of his pension according to the Decree of the Cabinet of Ministers of 13 January 1993 (hereinafter “the Decree”). The defendant was also obliged to pay the applicant the recalculated amount as his regular pension.
6. This judgment became final on 23 November 2002 and the writ of execution was issued on 24 November 2002.
7. On 25 February 2003 the Bailiffs’ Office in Dzerzhinsky District of Kharkiv (hereinafter “the Bailiffs”) issued the warrant for the enforcement of the judgment by 4 March 2003.
8. On 8 April 2003 the Bailiffs re-issued the warrant.
9. As the Pension Department twice submitted calculations of the applicant’s pension which were not based on the Decree, on 17 June and 28 August 2003 the Bailiffs fined the officials of the Pension Department for failure to enforce the judgment.
10. In December 2003 the applicant and the Bailiffs requested the Public Prosecutor of the Dzerzhinsky District of Kharkiv (hereinafter “the Public Prosecutor”) to institute criminal proceedings against the officials of the Pension Department for intentional non-enforcement of the judgment of 23 October 2002.
11. On 13 April 2004 the Public Prosecutor rejected this request for want of proof of a crime.
12. On 4 March 2005 the Dzerzhinsky District Court rejected the applicant’s complaint against this decision.
13. On 23 April 2004, upon the applicant’s request, the Dzerzhinsky Court issued a ruling explaining the judgment of 23 October 2002. It indicated the coefficients that should be used by the Pension Department in order to recalculate the applicant’s pension according to the Decree.
14. The Pension Department did not appeal against this ruling within the statutory time-limit and the same court, by rulings of 14 June and 21 September 2005, returned the Department’s belated appeal without considering it.
15. During 2004-2005, following numerous written requests by the Bailiffs, the Pension Department submitted recalculations of the applicant’s pension, which were not based on the ruling of 23 April 2004.
16. On 6 February 2006 the bailiff personally handed to the official of the Pension Department the ruling of 23 April 2004 and requested him to enforce it by 13 February 2006. The bailiff drew up a written report.
17. On 10 February 2006 the Public Prosecutor, on behalf of the Pension Department, lodged with the Supreme Court a cassation appeal against the rulings of 14 June and 21 September 2005.
18. On 13 February 2006, following the request of the Public Prosecutor, the Bailiffs suspended the enforcement proceedings.
19. On 22 March 2006 the Head of the Bailiffs quashed this decision on the ground that lodging a cassation appeal in itself could not suspend the enforcement of the final judgment.
20. On 24 March 2006 the enforcement proceedings were resumed.
21. On 5 and 19 May 2006 the Bailiffs fined the officials of the Pension Department for failure to enforce the judgment of 23 October 2002 and the ruling of 23 April 2004.
22. On 25 May 2006 the Bailiffs requested the Public Prosecutor to institute criminal proceedings against the officials of the Pension Department for intentional non-enforcement of the judgment of 23 October 2002 and ruling of 23 April 2004.
23. On 11 August 2006 the Public Prosecutor rejected this request for want of proof of a crime.
24. On 30 May 2007 the Higher Administrative Court rejected the Public Prosecutor’s cassation appeal against the rulings of 14 June and 21 September 2005.
25. On 8 August 2007 the Dzerzhinsky Court rejected the Public Prosecutor’s request to review the case in the light of newly disclosed circumstances and to suspend the enforcement proceedings.
26. On 4 October 2007 the Kharkiv Regional Court of Appeal (hereinafter “the Court of Appeal”) upheld this ruling.
27. The judgment of 23 October 2002 remains unenforced.
28. On 5 December 2002 the Public Prosecutor instituted criminal proceedings against the applicant for threatening a judge of the Dzerzhinsky Court (Article 376 of the Criminal Code). The applicant was obliged not to leave his place of his permanent residence.
29. On 26 February 2003, upon termination of the pre-trial investigation, the Public Prosecutor transmitted the criminal case to the Dzerzhinsky Court.
30. On 5 March 2003 the Court of Appeal, following the motion of the President of the Dzerzhinsky Court, transferred the case to the Chervonozavodsky District Court of Kharkiv (hereinafter “the Chervonozavodsky Court”).
31. November 2003 the Dzerzhinsky Court rejected the applicant’s complaint against the Public Prosecutor’s decision of 5 December 2002 as the case was pending before the first instance court.
32. In the course of its examination of the applicant’s appeal against the ruling of 20 November 2003, the Court of Appeal established that the applicant had not been not duly informed about the date of hearing before the Dzerzhinsky District Court and on 13 January 2004 requested the Judicial Administration to investigate this matter.
33. On 16 March 2004 the Court of Appeal upheld the ruling of 20 November 2003. On the same date, it issued a ruling to the Judicial Administration setting out procedural omissions by the judge of Dzerzhinsky Court who had examined the case.
34. On 10 February 2005 the Supreme Court rejected the applicant’s cassation appeal against the ruling of 20 November 2003.
35. On 30 November 2005 the Chervonozavodsky Court terminated the criminal proceedings against the applicant as time-barred.
36. On 5 December 2005 the applicant lodged an appeal seeking to be acquitted.
37. On 16 February 2006 the Court of Appeal quashed the ruling of 30 November 2005 and remitted the case for a fresh consideration.
38. In May 2006 the proceedings were resumed before the Chervonozavodsky Court.
39. Between May 2006 and February 2007 five out of six hearings scheduled were adjourned due to the witnesses’ and the victim’s failure to appear before the court.
40. In February 2007 the case was assigned to another judge.
41. The proceedings are still pending before the first instance court.
42. The relevant domestic law concerning the non-enforcement of the final judgments is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-82846
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 2007
DOCNAME: CASE OF LINDON, OTCHAKOVSKY-LAURENS AND JULY v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 10;No violation of Art. 6-1
JUDGES: Christos Rozakis;Elisabeth Steiner;Françoise Tulkens;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Loukis Loucaides;Luzius Wildhaber;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens
TEXT: 9. The first applicant is a writer and the second is the chairman of the board of directors of the publishing company P.O.L.; the third was the publication director of the daily newspaper Libération. They were born in 1955, 1944 and 1949 respectively and live in Paris.
10. The first applicant is the author of a book presented as a novel under the title Le Procès de Jean-Marie Le Pen (“Jean-Marie Le Pen on Trial”), published in August 1998 by P.O.L.
11. The novel recounts the trial of a Front National militant, Ronald Blistier, who, while putting up posters for his party with other militants, commits the cold-blooded murder of a young man of North African descent and admits that it was a racist crime. He is defended by a Jewish, left-wing and homosexual lawyer, Pierre Mine.
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 Seine by skinheads during a Front National march, and of Ibrahim Ali, a young Frenchman of Comorian origin who was killed in Marseilles by militants of the same party. Those militants were convicted in June 1998 after a trial in the Assize Court during which Front National leaders, Mr Le Pen included, declared that the case was no more than a provocation and a put-up job through which the party’s enemies sought to harm it.
The author builds the plot around the lawyer, the main protagonist, who throughout the trial finds himself embroiled in a political debate. At the very beginning he raises the question of Mr Le Pen’s responsibility: “Isn’t the Chairman of the Front National responsible for the murder committed by one of his teenage militants inflamed by his rhetoric?” (page 7). The novel focuses on a number of figures who are characterised by their moral or political positions in relation to the ideology and political party of the far right. The work also seeks to highlight the difficulties and contradictions of certain “anti-racist” stances.
12. The text on the back cover of the book describes the novel as follows:
“How can Jean-Marie Le Pen be fought effectively? The youth Ronald Blistier, member of the Front National, has committed a cold-blooded racist murder, killing an Arab youth in the open street. The case has caused an outcry and it is generally agreed that Blistier’s trial should really be that of his mentor.
Thirty-year-old Jewish lawyer Pierre Mine is defending the murderer. He has certain ideas about how best to fight Jean-Marie Le Pen.
– Set a trap for Le Pen? But it would backfire on all of us, warns his boyfriend Mahmoud Mammoudi.
Pierre Mine pursues his fight regardless. His strategy is unfathomable. Won’t he become the punchbag of the anti-racists and the champion of those he seeks to defeat? Jean-Marie Le Pen pretends to show him some respect. He is beset with troubles on all sides – it’s as if those who have no real success in their fight against the Front National are nevertheless suspicious of anyone trying a different approach.”
13. By originating summonses of 20 and 27 November 1998, the Front National and Mr Le Pen brought proceedings against the first two applicants in the Paris Criminal Court for the offence of public defamation against a private individual, as a result of the novel’s publication, under sections 29(1) and 32(1) of the Freedom of the Press Act of 29 July 1881. Six extracts from the novel were the subject of particular complaint: those (on pages 10, 86, 105-06 and 136) that were reproduced in a judgment delivered by the Paris Court of Appeal on 13 September 2000 (see paragraph 18 below), and the following two passages:
On page 28 the author attributes the following remarks to Mrs Blistier, Ronald’s mother:
“It might have crossed his mind, but he was never much good at shooting – my husband didn’t like Ronald using his rifle. But maybe the lad was humiliated because he’d never beaten anyone up, when all his mates from the Front National were bragging about their weekly clean-up rounds on the housing estates.”
On page 118, concerning a Front National demonstration, the author writes:
“The crowd assembled on Place de la Bastille, now whipped up by their master ranter, mostly consists of youths. If you searched them you’d find handguns by their hundreds. They’re ready for a fight – they’re only too pleased if far-left organisations think it’s a good strategy to confront them. The atmosphere is in some ways one of pre-insurrection, but as the journalists present have observed, the feeling on the side of the democrats is more one of disgust than of panic. A fascist coup d’état isn’t yet on the cards, there is more a fear of gangrene setting in – a social disease that can occasionally be stopped from spreading or curbed temporarily.”
14. In a judgment of 11 October 1999, the Paris Criminal Court convicted the second applicant of defamation and the first applicant of complicity in that offence, taking account, however, of only four of the six offending extracts, namely those on pages 10, 86, 105-06 and 136 of the book. They were each sentenced to pay a fine of 15,000 French francs (FRF) (equivalent to 2,286.74 euros (EUR)) and ordered jointly and severally to pay FRF 25,000 (EUR 3,811.23) in damages to each of the civil parties, together with the cost of publishing an announcement of the judgment.
In its judgment the court found as follows:
“Whether the publication was defamatory:
It should first be noted that, whilst the author chose to write a ‘novel’, as indicated on the front cover of the book, he portrays, along with a number of fictional characters, an actual and living political figure, namely Jean-Marie Le Pen, and his party, the Front National. In addition, the author announces the subject matter of his work in the title itself, ‘Jean-Marie Le Pen on Trial’. On the back cover he asks the question ‘How can Jean-Marie Le Pen be fought effectively?’ and in the first few lines of the book he raises another question: ‘Isn’t the Chairman of the Front National responsible for the murder committed by one of his teenage militants inflamed by his rhetoric?’ The reader thus immediately becomes aware that the fictional trial is a vector for direct criticism of Jean-Marie Le Pen, especially since the facts described are largely, and obviously, inspired by actual events which have had a great impact on public opinion.
Accordingly, although it is a novel, and although the offending remarks are only made by fictional characters, it can nevertheless be observed that the work seeks to impart clearly expressed ideas and to communicate a certain image of Jean-Marie Le Pen, his party and their behaviour. The classification of the charge cannot therefore be ruled out purely on the basis of the technique used to that end.
The text, regardless of its literary genre, is capable of harming the honour and reputation of the civil parties and it is appropriate to examine each of the offending extracts to establish their meaning and significance and to determine whether, for the charge of defamation to be made out, they are precise enough for the issue of proof to be addressed.
First passage, page 10: To allege that Jean-Marie Le Pen is the chief of a gang of killers – in other words, that he heads a group of murderers – constitutes, in the context of the book, an evidently defamatory allegation of sufficiently precise conduct, reference being made to the racist crime committed by the novel’s protagonist, a young Front National member whose criminal act is said to have been inspired by the ideas advocated by Jean-Marie Le Pen.
It is of no consequence that the crime of ‘Ronald Blistier’ is not real, because the author’s intention is not to write a satire about an impossible event but, on the contrary, to make the reader believe that, given Jean-Marie Le Pen’s ideology, such a scenario is quite plausible and that he would be accountable for it. The story also evokes – inevitably, for the reader – the trial in June 1998 of the Front National billstickers accused of killing a Comorian youth, Ibrahim Ali, in Marseilles. Similarly, when the author, a few passages further on, recounts the killing of a black youth called ‘Julien Thoris’, who is thrown into the Seine during a demonstration at which the Front National is present, the reader is bound to recall the real murder of Brahim Bouaram, whose killers were taking part in a march held by that party.
The precision of the facts described in the offending extract is thus sufficient to constitute defamation against the civil parties, and the facts thus alluded to were susceptible of proof.
Second passage, page 28: The assertion that ‘all his mates from the Front National were bragging about their weekly clean-up rounds on the housing estates’ is not clarified by other remarks or illustrated by any given facts. It may stem from the boastfulness attributed to the character in the novel and is too vague to justify prosecution.
Third passage, page 86: The Front National is accused of using violence against those who leave the party. The author has one of his characters warn Ronald Blistier’s lawyer against ‘the Front National’s common strategy’ of ‘battering’ anyone who leaves it (‘to beat you up ... ten against one, with metal bars, truncheons and steel-capped boots, one night as you’re leaving the house’).
This extract, which concerns facts that are precise and susceptible of proof, namely the attacking or even killing of anyone who dares to betray and leave the party, damages the honour of the Front National.
Fourth passage, pages 105-06: To accuse Jean-Marie Le Pen of making statements ‘with racist overtones that are barely concealed at best’ and to write that ‘from behind each of his assertions looms the spectre of the worst abominations of the history of mankind’ constitutes defamation against him in that he is accused of a form of racism that reminds the reader of the worst atrocities ever perpetrated. The author moreover explains a few lines further on that Jean-Marie Le Pen can put the idea of a racist murder into simple minds like that of Ronald Blistier, who ‘would not have had a gun in his hand and a North African kid at the end of it if Jean-Marie Le Pen had not made it possible’ (p. 106).
Fifth passage, page 118: This passage, which describes the young Front National militants firstly as being whipped up by their ‘master ranter’ and secondly as being armed by the hundreds and of creating an atmosphere of ‘pre-insurrection’, is certainly insulting to Jean-Marie Le Pen, but too imprecise to constitute defamation; the subsequent remarks do not concern the Front National but participants in that party’s demonstrations and cannot therefore be taken into account.
Sixth passage, page 136: Jean-Marie Le Pen is accused of being a ‘vampire’ who thrives on ‘the bitterness of his electorate’ and ‘the blood of his enemies’, and of being a liar, defaming his opponents to protect himself from the accusations against him.
The author develops this image and the term ‘vampire’ by writing, just after the offending passage: ‘... Jean-Marie Le Pen used Ronald Blistier’s life and is now using his death to stir up other Ronald Blistiers, to transform other lost youths into puppets who will have their lives and deaths manipulated by this ruthless puppeteer.’
These allegations about using the life and death of young militants, in driving them to murder and suicide, for personal political ends, are precise and damage the honour and reputation of Jean-Marie Le Pen.
As to the existence of good faith:
Defamatory allegations are, in law, deemed to have been made with the intention of causing harm, but they can be justified if the writer shows that he was acting in good faith.
The court observes in this connection that the author did not simply write a work of fiction. He portrayed to his readers Jean-Marie Le Pen, engaged in his usual activities as Chairman of the Front National, with the intention of criticising him and his party and of challenging their ideas. Mathieu Lindon indeed stated at the hearing that he had made much use of information in the news and, as a result, the reader may not be able to distinguish clearly between fact and fiction, so clear was the intention to associate the situations and remarks with recent events.
Although, in the sphere of political polemics and ideological debate, the greatest freedom of expression must be afforded to the author, that freedom is not unrestricted, and stops when it comes to personal attacks, whether they are made directly by the author or through the intermediary of fictional characters, and is discredited by the distortion of facts and by immoderate language.
Whereas the defence has asserted that this story reflects reality and does not twist it, the documents produced, which are mainly press articles, being devoid of evidentiary value, are insufficient to substantiate the defamatory allegations taken into account by the court concerning the criminal conduct imputed to the civil parties. No relevant judicial decision against them, which might have justified such assertions, was produced in the proceedings, and in the absence of documents the court can only find that Mathieu Lindon distorted the facts to reinforce the hostility of his readers towards Jean-Marie Le Pen and his party.
Furthermore, whilst authors and polemicists are afforded freedom to use a specific register, this does not authorise the particularly excessive remarks that appear in the text.
It cannot therefore be accepted that the defendants acted in good faith and the charge of defamation to the detriment of Jean-Marie Le Pen and the Front National is accordingly made out ...”
15. The first two applicants appealed against the above judgment in the Paris Court of Appeal. They challenged the finding that the offending extracts were defamatory in nature. They argued that it was simply a work of fiction portraying fictional characters, as the reader could see from the very first page. They also argued that the remarks merely amounted to value judgments about the claimants, reflecting a public debate, treated with distance and irony, about how best to combat the rise of the far right. In the alternative, pleading good faith, they submitted that the ideas of Mr Le Pen and the Front National had not been distorted by the book and its characters, and that the offending passages consisted exclusively of remarks made by the fictional characters without reflecting the ideas of the author, who, for his part, had sought to criticise the strategy adopted by anti-racist associations and left-wing intellectuals in general, in their fight against the Front National.
The applicants relied on Article 10 of the Convention, claiming that this provision precluded any conviction because a work of fiction was entitled to reflect debate as to the moral responsibility borne by the Front National and its leader’s ideas in the commission of racist crimes. They emphasised that the freedom to hold opinions would be infringed if the author of a value judgment were to be penalised on the pretext that he could not prove the pertinence of his opinion, and referred in this connection to the Lingens v. Austria judgment (8 July 1986, Series A no. 103). Lastly, they argued that equally aggressive and defamatory remarks against the civil parties had been made in the past by politicians or journalists, and that Mr Le Pen himself had been convicted several times of incitement to racial hatred.
16. In a judgment of 13 September 2000, the Paris Court of Appeal (Eleventh Division, consisting of Mr Charvet, President, Mr Blanc and Mr Deletang) upheld the judgment of 11 October 1999 as regards the defamatory nature of three out of the four passages taken into account by the Criminal Court, together with the fines imposed and the damages awarded by that court.
17. In its judgment the Court of Appeal considered, firstly, that the work in question was a “novel”, “a ‘creation of the imagination’ as defined by the Petit Robert dictionary”, whose story line was constructed around the dilemma facing the main character: “The author has developed a plot, based on that framework, running from the beginning of the proceedings against the young defendant until his suicide in prison before counsel’s address and the prosecution speech, and has given expression to many characters who mainly appear as stereotypes characterised by their moral or political position in relation to the civil parties, who themselves are explicitly real people.” It further observed that Mr Le Pen and the Front National, both appearing under their real and current identities, were constantly at the forefront not only of the debate conducted in open court but also of the exchanges between the various characters, “and even at the heart of the intimate contradictions facing the main protagonist”. The court then noted that, on a number of occasions, words had been put into the mouth of Mr Le Pen, who “express[ed] views that [were] close or identical to those [that he took] in reality, but which [had not been] regarded by the civil parties as impugning his honour and reputation or those of the party of which he [was] the leader”. It further considered that the subject of the book was the question set out on the back cover, “How can Jean-Marie Le Pen be fought effectively?”, adding that “to ask that question, even in a novel, [was] not per se defamatory against him”.
18. The court went on to point out that section 29 of the Act of 29 July 1881 defined defamation as “any statement or allegation of a fact that impugns the honour or reputation of [a] person” and that the law made no distinction based on the nature of the writing in issue. On that basis, any writing, whether political, philosophical, novelistic or even poetical, was governed by the applicable rules in such matters, with regard both to public order and to the protection of individuals. However, the court added that “the application of the rules on defamation in respect of a press article or other text directly expressing the view of its author requires, if the text is a work of fiction, an examination of the question whether the civil parties are actually the individuals concerned by the offending remarks, and then of the meaning attributed by the author to the words of his characters in the light of the ideas that he expounds in reality in his work”. As to the second point – the first being manifestly established – the court found as follows: “... a distinction has to be made between the offending passages on pages 10, 86, 105, and, lastly, 136, the only extracts now to be taken into account: some of them express the view of the narrator and coincide with the author’s ideas as they emerge from the work as a whole, whilst others can be attributed only to the character making the remarks in question, in so far as the author genuinely distances himself from those remarks throughout the work, either through the narrator or by other means.”
Using that method the court ruled as follows on the four passages in question:
“1. Page 10: ‘... an effective way to fight Le Pen is to call for him to be put in the dock and show that he isn’t the Chairman of a political party but the chief of a gang of killers – after all, people would have voted for Al Capone too’ [this view is attributed by the author to anti-racist demonstrators who have gathered outside the law courts].
This segment of text is preceded by another, which has not been mentioned by the civil parties: ‘For them, it’s not sufficient to call Ronald Blistier the murderer’, following the narrator’s description of the crowd of ‘anti-racists’ which assembles in front of the law courts during the trial of Ronald Blistier.
To assert that Jean-Marie Le Pen is not the Chairman of a political party but the chief of a gang of killers, and then in addition to equate him with Al Capone, is clearly defamatory, as was quite rightly observed by the court below.
There is nothing in the preceding or following sentences to suggest that any distance has been taken by the narrator – and therefore, in view of the book’s literary construction, by the author himself – from this statement, which is attributed to the demonstrators gathered outside the law courts, and which, moreover, echoes the question presented on the back cover as the subject of the book: ‘How can Jean-Marie Le Pen be fought effectively?’
This extract accordingly constitutes defamation against the civil parties.
2. Page 86: ‘He (Blistier [the accused]) wants to frighten you, Pierrot [the lawyer]. He wants to brand you as a member of his clan: that’s a common Front National strategy, to make you look like a traitor if you later make the slightest criticism of Le Pen or his followers, and so they’ll feel morally entitled to beat you up – to come after you, ten against one, with metal bars, truncheons and steel-capped boots, one night as you’re leaving the house, and give you a clear message that those who join the team stick together for life. Nobody leaves the Front National with impunity. Please don’t try and be clever, Pierrot. I don’t want them to kill you.’
These words are spoken by the boyfriend of the lawyer, Mr Mine, the main protagonist. The speaker is giving his own explanation about the defendant’s attitude towards his counsel during the hearing, in response to a question from Mine.
This passage contains comments that are specific to the fictional character, albeit derogatory with regard to the civil parties, as observed by the court below.
Nevertheless, and contrary to the assessment of the lower court, they do not appear to be susceptible of proof within the meaning of the Act of 29 July 1881: being attributed to a fictional character, in a situation which is itself fictional, the text does not suggest that they may necessarily be regarded as corresponding to the author’s opinion.
This passage is not found to be defamatory.
3. Pages 105-06: ‘Read the papers, listen to the radio and television, every statement by Jean-Marie Le Pen is bedecked – or rather bespotted and bespattered – with racist overtones that are barely concealed at best. Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind. Everyone knows it, everyone says it. What Ronald Blistier did was precisely what Jean-Marie Le Pen advocates. Perhaps not explicitly – he tries to abide by the law, even though he does not always manage to do so. But when you consider the situations in which he speaks, the innuendos he makes and the figures he supports, there can be no doubt’ [here the lawyer is addressing the court].
It is clearly defamatory to accuse Jean-Marie Le Pen of ‘proffering words or assertions with racist overtones that are barely concealed at best and from behind which looms the spectre of the worst abominations of the history of mankind’.
Such an accusation is susceptible of debate as to whether or not it holds true in relation to the actual discourse of Jean-Marie Le Pen and the Front National.
The defendants cannot legitimately claim impunity for such remarks on the grounds that they derive from novelistic fiction and at the same time that they are covered by the statutory impunity concerning statements made during a judicial hearing.
The allegation by the character Mr Mine, the lawyer, that ‘what Ronald Blistier did was precisely what Jean-Marie Le Pen advocates’, following the narrator’s comment – just before the paragraph containing the passage in question – that ‘once again, everyone agrees that this trial should be that of Jean-Marie Le Pen rather than that of Ronald Blistier, otherwise it would never have had such an impact’, shows that through the remarks attributed to his main protagonist it is in fact Mathieu Lindon who is expressing himself here with reference to the civil parties.
This extract constitutes defamation against the civil parties.
4. Page 136: After the defendant’s suicide in prison, his lawyer gives the following statement on television: ‘How can Jean-Marie Le Pen be allowed to play the victim after Ronald Blistier’s suicide? Isn’t the Front National Chairman a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies? Why does Le Pen accuse democrats of the alleged murder of Ronald Blistier? Because he isn’t afraid of lies – because engaging in defamation against his opponents always appears useful for him, of course, but it is also quite simply a means to deflect suspicion; he’s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself.’
To describe Jean-Marie Le Pen, Chairman of the Front National, as ‘a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies’, impugns the honour and reputation of the two civil parties.
This passage is part of a long television appearance by the main protagonist – the only one who, apart from his boyfriend, is portrayed in a positive light in the novel, as both characters convey, so to speak, the contradictions and values of the narrator – following the defendant’s suicide in prison.
It is evident that this speech, which takes the form of an indictment, and which is presented as the only interview given to the media by the lawyer, who has previously turned down many other requests, constitutes both the synthesis and the final conclusion through which the author seeks to give his character an opportunity to express, with a certain solemnity in the context of this fiction, the author’s own view as a militant writer.
Moreover, in the last two pages of the book, following the television statement, no distance whatsoever is introduced between the narrator and the remarks made.
This extract thus constitutes defamation against the civil parties.”
19. The Court of Appeal further dismissed the argument that the applicants had acted in good faith, on the following grounds:
“Defamatory allegations are deemed to have been made in bad faith unless the defendant can show that they fulfil all of the following conditions: they must correspond to the pursuit of a legitimate aim; they must not reflect any personal animosity on his part towards the civil party; there must have been a serious preliminary investigation; and the language used must be dispassionate.
In the present case, the legitimacy of the aim pursued by the defendants through the novel, namely ‘to fight against Jean-Marie Le Pen effectively’, in other words to engage in a political combat, cannot be challenged in a democratic society.
With its claim to be a ‘combative’ work, the novel in question, and in particular the passages found to be defamatory, attest to patent animosity towards the civil parties. However, that animosity is explicitly related to the aversion felt by the defendants in reaction to the ideas and values presented for public debate by the civil party as Chairman of the Front National. That animosity, which is not directed against the civil party in person, cannot be regarded as reprehensible per se.
Since this is a work of fiction, the question of the seriousness of the investigation underpinning the work cannot be assessed as if it were a text intended to inform the reader of real facts or comment on such facts. However, the principle adopted for the construction of the work in issue, as can be seen explicitly from a reading of the text and as the defendants have asserted before the court, is based on the juxtaposition within an imaginary plot of, on the one hand, various fictional characters, and on the other, the Chairman of the Front National, a real figure, who represents the focus in relation to which the imaginary characters take shape and around which they revolve throughout the novel.
Furthermore, the ideas, rhetoric, acts and gestures of Jean-Marie Le Pen are accurately described in the novel – as the defendants have claimed, producing cogent evidence to that effect – in relation to the reality of the various public manifestations of his political activity. Accordingly, it is appropriate to examine whether the use of the defamatory comments chosen by the author was preceded by an investigation sufficiently serious to justify the comments in question.
In this connection, whilst the rhetoric and ideas attributed to the civil parties, together with the ensuing debates, are unquestionably consonant with the actual representation of the ideas of the Front National in reports on French political life today, the defendants have failed to adduce any specific evidence to show that the use of the wording found to be defamatory was preceded by basic verification as to the reality supposed to be evoked by that wording.
Similarly, it cannot be said that the form of expression used in the three extracts found to be defamatory is sufficiently dispassionate: to liken Jean-Marie Le Pen to the ‘chief of a gang of killers’ (page 10), to assert that the murder committed by Blistier – a fictional character – was ‘advocated’ by Jean-Marie Le Pen – a real person – and to describe the Chairman of the Front National – a real person – as a ‘vampire who thrives on the bitterness of his electorate, but sometimes also on their blood’, clearly oversteps the permissible limits in such matters.
It cannot therefore be accepted that the defendants acted in good faith.
Lastly, the argument derived from the application of Article 10 of the European Convention on Human Rights and the Lingens v. Austria judgment of 8 July 1986, whereby ‘a value-judgment made about a politician is by nature not susceptible of proof’ is ineffective.
The allegations found in the present case to be defamatory, directed against a real politician, do not merely constitute value-judgments within the meaning of the judgment of the European Court of Human Rights cited above, in a case where a journalist had described the conduct of a politician as ‘the basest opportunism’, ‘immoral’ and ‘undignified’. In Mr Lindon’s case, he accuses the civil party of certain concrete practices (describing him as the ‘chief of a gang of killers’, ‘advocating the perpetration of a murder’ and ‘a vampire who thrives on the bitterness and the blood of his voters’).”
20. In a judgment of 27 November 2001, the Court of Cassation dismissed an appeal on points of law lodged by the first two applicants. It rejected as follows the ground based on an alleged breach of Article 10 of the Convention:
“... In finding the defendants guilty of public defamation against a private individual, taking into account three extracts from the work, the judges, who made an accurate assessment of the meaning and significance of the offending writings, justified their decision without breaching the Convention provisions referred to in the ground of appeal.
Whilst Article 10 of the Convention ... recognises, in its first paragraph, that everyone has the right to freedom of expression, that provision states, in its second paragraph, that the exercise of this right, carrying 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 for the protection of the reputation of others. ...”
21. In its edition of 16 November 1999, in a column entitled “Rebonds” (“reactions”), the daily newspaper Libération published an article signed by ninety-seven contemporary writers concerning the first two applicants’ conviction, on charges of defamation and complicity in defamation, by the Paris Criminal Court in its judgment of 11 October 1999 (see paragraph 14 above). The article took the form of a petition and read as follows:
“Petition. The passages from the book ‘Jean-Marie Le Pen on Trial’ for which Mathieu Lindon and his publisher were convicted are not defamatory. We are prepared to write them in a novel. We will write against Le Pen.
Novels cannot be granted unlimited rights. But they have the right to exist and to evoke the real world in which the author and his peers live. Mathieu Lindon and his publisher Paul Otchakovsky-Laurens were convicted of defamation against Jean-Marie Le Pen on account of four passages in the novel ‘Jean-Marie Le Pen on Trial’.
To write, in a novel, that demonstrators who pay tribute to the victim of a racist murder consider that: ‘For them, it’s not sufficient to call Ronald Blistier the murderer; an effective way to fight Le Pen is to call for him to be put in the dock and show that he isn’t the Chairman of a political party but the chief of a gang of killers – after all, people would have voted for Al Capone too’ is not defamatory in my view and I am prepared to write this in a novel.
To write, in a novel, that the boyfriend of a lawyer defending a murderer who belongs to the Front National gives the lawyer this warning: ‘He wants to frighten you, Pierrot. He wants to brand you as a member of his clan: that’s a common Front National strategy, to make you look like a traitor if you later make the slightest criticism of Le Pen or his followers, and so they’ll feel morally entitled to beat you up – to come after you, ten against one, with metal bars, truncheons and steel-capped boots, one night as you’re leaving the house, and give you a clear message that those who join the team stick together for life. Nobody leaves the Front National with impunity. Please don’t try and be clever, Pierrot. I don’t want them to kill you’ is not defamatory in my view and I am prepared to write this in a novel.
To write, in a novel, that a lawyer, in defending his client who is accused of a racist crime puts the following arguments to the court: ‘Read the papers, listen to the radio and television, every statement by Jean-Marie Le Pen is bedecked – or rather bespotted and bespattered – with racist overtones that are barely concealed at best. Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind. Everyone knows it, everyone says it. What Ronald Blistier did was precisely what Jean-Marie Le Pen advocates. Perhaps not explicitly – he tries to abide by the law, even though he does not always manage to do so. But when you consider the situations in which he speaks, the innuendos he makes and the figures he supports, there can be no doubt’ is not defamatory in my view and I am prepared to write this in a novel.
To write, in a novel, that a lawyer who has poorly defended his client, a Front National member accused of a racist murder, makes the following analysis: ‘How can Jean-Marie Le Pen be allowed to play the victim after Ronald Blistier’s suicide? Isn’t the Front National Chairman a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies? Why does Le Pen accuse the democrats of the alleged murder of Ronald Blistier? Because he isn’t afraid of lies – because engaging in defamation against his opponents always appears useful for him, of course, but it is also quite simply a means to deflect suspicion; he’s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself’ is not defamatory in my view and I am prepared to write this in a novel.
If these passages are to be considered defamatory in a novel, they are also defamatory in reality. I should be sued by Jean-Marie Le Pen and convicted by a court, if they are true to their own logic, for having reproduced those extracts here.”
22. It was on account of the above article that Mr Le Pen and his party summoned the third applicant to appear before the Paris Criminal Court in his capacity as publication director of Libération, alleging that he had committed the offence of public defamation against a private individual (under sections 29(1), 32(1) and 42 of the Freedom of the Press Act of 29 July 1881).
23. In a judgment of 7 September 2000, the court found the applicant guilty of the criminal offence of defamation and sentenced him to pay a fine of FRF 15,000 (EUR 2,286.74). It also awarded FRF 25,000 (EUR 3,811.23) in damages.
The court, after observing that Libération had reproduced in extenso passages from the work that it had characterised as defamatory in its judgment of 11 October 1999, found that “the defamatory nature of the remarks, which ha[d] already been found to have impugned the honour and reputation of another and ha[d] been repeated in the offending article, [was] ... not in doubt”. As to the question of good faith, the court found that, whilst the newspaper Libération was entitled to comment on a judicial decision and to impart ideas and information on questions that formed the subject of public debate, it was nevertheless true that there was “a distinction between the right of petition and the publicity given to a petition by the use of objectionable terms”. In the court’s view, the publication of the defamatory passages in abstracto, outside their literary context, strengthened the dishonouring force of the allegations, which were shifted to the terrain of reality and plausibility, without any debate of ideas, as the signatories of the article had emphasised in concluding: “If these extracts are to be considered defamatory in a novel, they are also defamatory in reality.” The court added that other newspapers had reported on the debate triggered by the publication of “Jean-Marie Le Pen on Trial” and the petition following the conviction of its author but had not reproduced the offending comments in extenso. It inferred that the third applicant “could ... have reported on the offending petition and informed readers of the views of numerous writers and journalists, without, however, reiterating the offence of which Mr Lindon and his publisher had been convicted by reproducing the passages that had been found to be defamatory in the court’s previous decision”.
24. On 12 September 2000 the third applicant lodged an appeal against the judgment. He contended that the impugned article was part of a broader political debate concerning the Front National and its Chairman, and that the debate was intense because of events that had actually taken place. It was those events which had provided the inspiration for the novel by the first applicant, whose cause had been defended by the signatories of the petition, reacting in a democratic spirit and out of vigilance towards the far-right movement. The third applicant explained that the column “Rebonds” was specifically reserved for the opinions of commentators from outside the newspaper who expressed their views with the intention of triggering debate and provoking reactions among readers. He added that the column, in principle, was not supposed to be objective or impartial but to convey opinions and therefore entailed the freedom to hold those opinions. He argued that the free discussion of political matters should not be hindered by excessive requirements relating to the protection of the rights of others or the prevention of disorder.
25. In a judgment of 21 March 2001, the Eleventh Division of the Paris Court of Appeal (consisting of Mr Charvet, President, and Judges Deletang and Waechter) upheld all the provisions of the judgment under appeal.
The court pointed out that, in its judgment of 13 September 2000 (see paragraphs 16-19 above), it had upheld the conviction of the first two applicants on account of three out of the four offending passages in the novel. It reproduced those passages and, as regards the defamatory nature of the article, referred back to the grounds set out in the 13 September 2000 judgment, of which, it stated, the reasoning “remain[ed] applicable”. It went on to dismiss the defence of good faith on the following grounds:
“The existence of controversy surrounding Mr Le Pen and the Front National has been patent for many years, and that controversy has taken on a polemical aspect at certain times.
As regards the work ‘Jean-Marie Le Pen on Trial’, the court found in its previous judgment that it was established that its very subject matter was the fight against the political ideas of the civil parties, which in this case had taken the form of a novel.
Such a medium does not preclude the application of the Act of 29 July 1881 where, firstly, the characters portrayed can be identified as real people, and, secondly, the defamatory allegations against them are a reflection not of the narrative process but of the author’s own views.
On the basis of that analysis, the court considered that this situation obtained in respect of the novel itself. It is all the more true for the impugned article, which is presented as a shift from fiction in two ways, being published even though the passages in question had formed the basis of a conviction and by clearly indicating that shift: ‘If these passages are to be considered defamatory in a novel, they are also defamatory in reality. We will write against Le Pen.’
The authors of the text in issue had no other aim than that of showing their support for Mathieu 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 polemical aim of a text cannot absolve it from all regulation of expression, especially when, far from being based merely on an academic debate, 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 such as those describing Mr Le Pen as the ‘chief of a gang of killers’ or as a vampire.
The defence of good faith cannot be admitted ...”
26. On 23 March 2001 the third applicant appealed on points of law, claiming in particular that there had been a violation of Articles 10 and 6 of the Convention. In respect of Article 6 he contended that the Court of Appeal had already ruled on the defamatory nature of the book in question and that it had relied on that earlier judgment, so that the appeal had not been heard by an impartial tribunal but by a “court which openly regarded itself as clearly targeted by the offending article”.
27. In a judgment of 3 April 2002, the Court of Cassation dismissed the appeal in the following terms:
“... It is apparent from the decision appealed against that Serge July, publication director, was summoned to appear before the Eleventh Division of the Court of Appeal on a charge of public defamation against a private individual, on account of having published an article. That article incorporated certain passages from a book for which the author had previously been found guilty under section 29 of the Act of 29 July 1881 by a bench of the Court of Appeal consisting of President Charvet and Judges Blanc and Deletang.
The appellant is not entitled to complain that Judges Charvet and Deletang sat on the bench of the appellate court before which he appeared, in so far as the participation in this case of a number of judges of the criminal division of the Court of Appeal in proceedings concerning charges brought, firstly, against the author of a defamatory text and, secondly, against the publication director who allowed certain passages from that text to be published, is not contrary to the requirement of impartiality enshrined in Article 6 § 1 of the Convention. In addition, contrary to what has been alleged, there is nothing in the judgment appealed against to suggest that the judges deemed themselves to be targeted by the offending text or that they expressed an opinion contrary to the requirement of impartiality.
... In finding Serge July guilty ... the Court of Appeal stated that the polemical aim of a text could not absolve it from all regulation of expression, when, far from being based merely on an academic debate, its line of argument was built around reference to precise facts. The court added that, in this case, the accusations that had been made without a meaningful prior investigation were particularly serious ones, the civil party having been described as the ‘chief of a gang of killers’ or as a vampire.
In these circumstances the Court of Appeal justified its decision without breaching Article 10 of the Convention ...”
28. The relevant parts of the Freedom of the Press Act of 29 July 1881 provide as follows:
“It shall be defamatory to make any statement or allegation of a fact that impugns the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches, shouts, threats, written or printed matter, placards or posters.
It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact.”
“Anyone who by any of the means set out in section 23 [including ‘written’ and ‘printed’ matter and ‘any other written medium’ ‘sold or distributed, or offered for sale’] makes a statement that is defamatory of private individuals shall be liable on conviction to six months’ imprisonment and a fine of 12,000 euros, or to one only of those sentences”.
“The following persons shall be liable, as principals, in the following order, to penalties for offences committed via the press:
1. Publication directors or publishers, irrespective of their occupation or title ...”
29. An individual may be defamed through the portrayal of characters in a novel or play, without it being necessary for the name of the imaginary person to correspond to that of the individual who claims to have been defamed, provided he or she is referred to in a clear manner such that the public cannot be mistaken (Paris Court of Appeal, 8 March 1897). On the other hand, the fact that the name of the imaginary person corresponds to that of a living person is not sufficient for the latter to allege defamation, even if there are certainly similarities of character and diffusion (Algiers Court of Appeal, 20 February 1897). Such situations mostly give rise to proceedings for civil liability and damages are awarded whenever there has been prejudice, that is to say when the public has unavoidably been led to associate the living person with the imaginary person and where an error of judgment can be attributed to the author (Paris Court of Appeal, 24 April 1936, and Paris Court of Appeal, 8 November 1950). (Source: Juris-Classeur de droit pénal, 1996, Presse-Diffamation, fascicule 90, “86 personnages littéraires” (literary characters)).
NON_VIOLATED_ARTICLES: 10
6
NON_VIOLATED_PARAGRAPHS: 6-1