CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 février 1997

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font-size:14pt } .s76CF415B { page-break-before:always; clear:both } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       COURT (CHAMBER)             CASE OF DE HAES AND GIJSELS v. BELGIUM   (Application no. 19983/92)             JUDGMENT       STRASBOURG   24 February 1997   In the case of De Haes and Gijsels v. Belgium [1] , The European Court of Human Rights, sitting, in accordance with Article   43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court B [2] , as a Chamber composed of the following judges:   Mr   R. Ryssdal , President ,   Mr   F. Matscher ,   Mr   J. De Meyer ,   Mr   I. Foighel ,   Mr   J.M. Morenilla ,   Sir   John Freeland ,   Mr   A.B. Baka ,   Mr   K. Jungwiert ,   Mr   U. Lohmus , and also of Mr H. Petzold , Registrar , and Mr P.J. Mahoney , Deputy Registrar , Having deliberated in private on 29 October 1996 and 27 January 1997, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.   The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 25 January 1996, within the three ‑ month period laid down by Article 32 para. 1 and Article 47 of the Convention (art. 32-1, art. 47). It originated in an application (no. 19983/92) against the Kingdom of Belgium lodged with the Commission under Article   25 (art. 25) by two Belgian nationals, Mr Leo De Haes and Mr   Hugo   Gijsels, on 12 March 1992. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Belgium recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6 and 10 of the Convention (art. 6, art. 10). 2.   In response to the enquiry made in accordance with Rule 35 para.   3   (d) of Rules of Court B, the applicants stated that they wished to take part in the proceedings and designated the lawyers who would represent them (Rule 31). 3.   The Chamber to be constituted included ex officio Mr J. De Meyer, the elected judge of Belgian nationality (Article 43 of the Convention) (art.   43), and Mr R. Ryssdal, the President of the Court (Rule 21 para.   4   (b)). On 8 February 1996, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr   F.   Matscher, Mr I. Foighel, Mr J.M. Morenilla, Sir John Freeland, Mr   A.B. Baka, Mr K. Jungwiert and Mr U. Lohmus (Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43). 4.   As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Belgian Government ("the Government"), the applicants’ lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules 39 para. 1 and 40). Pursuant to the order made in consequence, the Registrar received the Government’s and the applicants’ memorials on 26 June 1996. On 9 October the Commission supplied him with various documents he had requested on the President’s instructions. 5.   In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 23 October 1996. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a) for the Government Mr J. Lathouwers , Deputy Legal Adviser, Head of Division, Ministry of Justice,   Agent , Mr E. Brewaeys , of the Brussels Bar,   Counsel ; (b) for the Commission Mr J.-C. Geus ,   Delegate ; (c) for the applicants Mr H. Vandenberghe , of the Brussels Bar, Mr E. Van der Mussele , of the Antwerp Bar,   Counsel . The Court heard addresses by Mr Geus, Mr Vandenberghe and Mr   Brewaeys. AS TO THE FACTS I.   Circumstances of the case 6.   Mr Leo De Haes and Mr Hugo Gijsels live in Antwerp and work as an editor and journalist respectively for the weekly magazine Humo. A. The action for damages against the applicants 7.   On 26 June, 17 July, 18 September and 6 and 27 November 1986 the applicants published five articles (see paragraphs 19 et seq. below) in which they criticised judges of the Antwerp Court of Appeal at length and in virulent terms for having, in a divorce suit, awarded custody of the children to the father, Mr X, a Belgian notary (notaire); in 1984 the notary’s wife and parents-in-law had lodged a criminal complaint accusing him of incest and of abusing the children, but in the outcome it had been ruled that there was no case to answer. 8.   Mr X had instituted proceedings for criminal libel against those who had lodged the complaint. The Malines Criminal Court and subsequently the Antwerp Court of Appeal acquitted the defendants on 4 October 1985 and 5   June 1986 respectively. The Court of Appeal held, inter alia: "At the present time the rulings that there was no case to answer show that the allegations have been judicially held to be without foundation. It has not been proved, however, that the defendants acted in bad faith, that is to say with malicious intent, and they had no good reason to doubt the truth of the allegations. Indeed, it was not only the defendants who were convinced that the allegations were true but also eminent academics, including Professor [MA] ... and Dr [MB], a child psychiatrist, both of whom were appointed as experts by the investigating judge, Mr   [YE]... At the Criminal Court hearing on 6 September 1985 ... the expert [MB] confirmed on oath the content of his report. That expert, who can hardly be said to lack experience in the field of child psychology and who studied all the evidence in the criminal case file, concluded on 28   August 1984 that the children’s statements were credible and put forward several arguments in support of that view." On 20 January 1987 the Court of Cassation dismissed an appeal on points of law brought by Mr X. 1. In the Brussels tribunal de première instance 9.   On 17 February 1987 three judges and an advocate-general of the Antwerp Court of Appeal, Mrs [YA], Mr [YB], Mr [YC] and Mr [YD], instituted proceedings against Mr De Haes and Mr Gijsels and against Humo’s editor, publisher, statutory representative, printer and distributor in the Brussels tribunal de première instance (court of first instance). On the basis of Articles 1382 and 1383 of the Civil Code (see paragraph 26 below), they sought compensation for the damage caused by the statements made in the articles in question, statements that were described as very defamatory (zeer lasterlijk en eerrovend). They asked the court to order the defendants to pay nominal damages of one franc each in respect of non-pecuniary damage; to order them to publish its judgment in Humo; and to give the plaintiffs leave to have the judgment published in six daily newspapers at the defendants’ expense. 10.   In order to safeguard the principle of equality of arms and due process, the defendants asked the court, in their additional submissions of 20 May 1988, to request Crown Counsel to produce the documents mentioned in the disputed articles or at least to study the opinion of Professors [MA], [MC] and [MD] on the medical condition of Mr X’s children, which had been filed with the judicial authorities. They gave the following grounds for their application: "The issue arises whether the defendants, given the factual evidence available to them, were entitled, within the limits of press freedom, to publish the impugned criticisms of the functioning of a judicial body. ... In the disputed press articles the defendants relied, in particular, on various medical reports, statements by the parties and reports by a bailiff. ... Nor can it be denied that Mr X’s libel action against his wife was dismissed. Now that it must be determined whether the defendants were entitled to publish the impugned press articles on the basis of the information available to them, it is essential for the proper conduct of the case that Crown Counsel, who is acting in the case under Article 764-4 of the Judicial Code, should produce to the Court the documents cited as sources in the series of articles. These documents are to be found in various court files. Any argument as to the lawfulness of the press criticism presupposes at the least that the Court should be able to study the opinion of Professors [MA], [MC] and [MD] on the treatment of X’s children, which has been sent to the judicial authorities. The opinion of those eminent professors of medicine was the decisive factor which prompted Humo to publish the impugned series of articles in such a forceful manner. The views maintained by the defendants and the language and descriptions they used cannot be assessed in the abstract but must be assessed in the light of these data, which go to the substance of the case. Thus the European Court held in the Lingens case (judgment of the ECHR of 8 July 1986, Series A no. 103) that the issue of the limits of the exercise of freedom of expression had to be examined against the whole of the background: ‘It must look at them in the light of the case as a whole, including the articles held against the applicant   and the context in which they were written’ (paragraph 40 of the judgment). ... For these reasons ... may it please the Court ... to hold that it is necessary, for the proper conduct of the proceedings, in particular in the light of the principle of equality of arms and due process, to request Crown Counsel to produce the documents cited in the disputed articles that appeared in the magazine Humo, or at least to study the opinion of Professors [MA], [MC] and [MD] on the medical condition of X’s children, which has been filed with the judicial authorities." 11.   On 29 September 1988 the court ordered Mr De Haes and Mr   Gijsels to pay each plaintiff one franc in respect of non-pecuniary damage and to publish the whole of its judgment in Humo; it also gave the plaintiffs leave to have the judgment published at the applicants’ expense in six daily newspapers. Lastly, it declared the action inadmissible in so far as it was directed against the other defendants. The court held, inter alia: "The plaintiffs are obviously not challenging freedom of expression and of the press as guaranteed in Articles 14 and 18 of the Constitution and Article 10 para. 1 (art.   10 ‑ 1) of the [European Convention on Human Rights]. Equally, the defendants cannot dispute that this freedom is not unlimited and that there are certain bounds which cannot be overstepped. As has already been set out ..., Article 10 para. 2 of the Convention (art. 10-2) is no obstacle to bringing a civil action under Article 1382 of the Civil Code where the press has acted wrongfully. Article 10 para. 2 of the Convention (art. 10-2) expressly provides that freedom of the press ‘may be subject to such ... restrictions ... as are prescribed by law and are necessary ... for the protection of the reputation or rights of others ... or for maintaining the authority and impartiality of the judiciary’. The need to protect the plaintiffs’ private life (Article 8 para. 1 of the Convention) (art. 8-1), and more specifically their honour and reputation, means, in the case of a press article, that the press must (1) strive to respect the truth; (2) not be gratuitously offensive; and   (3)   respect the privacy of the individual. These criteria are taken up in the ‘Declaration of the Rights and Obligations of Journalists’ drawn up by the International Federation of Journalists. In the articles in question the defendants make frequent references to the fact that the plaintiffs had allegedly erred in their judgment and had shown bias. The defendants accepted as true, without more, the statement made by Mr X’s former wife and her expert adviser (Professor [MA]), although it was clearly shown in the reasons set out in the four judgments given in the case why that statement was not reliable. More seriously still, in the articles in question the defendants expressed the opinion that the plaintiffs had to be regarded as biased, an opinion derived from the fact that they were said to belong to the influential circle of acquaintances of the notary and his father, that one of them was the son of a gendarmerie general who in 1948 had been convicted of collaboration, that they allegedly had an extreme-right-wing background and that they were friendly with each other. The plaintiffs’ conduct was vigorously attacked by the defendants in extremely virulent terms, and the defendants clearly intended to present the plaintiffs in an unfavourable light and expose them to public opprobrium. The defendants sought to give their readers the impression that the plaintiffs were siding with the children’s father and that their judgments were inspired by certain ideological views. To this end, the defendants needlessly reminded their readers of the wartime activities of the father of one of the plaintiffs. The plaintiffs rightly observed that they cannot simply be put on a par with members of the legislature or of the executive. Politicians were elected and the public had to trust them. Politicians could, moreover, use the media to defend themselves against any attacks. Magistrats [a term which in Belgian law covers both judges and members of Crown Counsel offices], on the other hand, were expected to discharge their duties wholly independently and dispassionately. Their duty of discretion meant that they could not defend themselves in the same way as politicians. That being so, the defendants committed a fault in attacking the plaintiffs’ honour and reputation by means of irresponsible accusations and offensive insinuations. The orders sought by the plaintiffs will provide appropriate redress for the non-pecuniary damage they have sustained ..." 2. In the Brussels Court of Appeal 12.   The applicants appealed against that judgment. In their submissions of 10 November 1989 they pointed out, among other things, that the sole purpose of the articles in question had been to criticise the functioning of the judicial system following the proceedings conducted by the respondent judges and Advocate-General concerning possible abuse and incestuous acts suffered by the children. At no time had they attacked the respondents’ private life without reference to their part in the impugned decision. Mr   De   Haes and Mr Gijsels repeated their offer to prove the facts described in the articles and asked the court to request Antwerp Principal Crown Counsel to produce the documents they had mentioned, at least those emanating from Professors [MA], [MC] and [MD] and those from the file on X’s divorce, in particular certain reports and a letter to Principal Crown Counsel from Professor [MA]. 13.   The respondents sought to have the judgment of the court below upheld. In their submission, the applicants’ conduct had been all the more reprehensible and offensive as in an article that had appeared in Humo on 14 October 1988 (see paragraph 24 below) the applicants had not only maintained their accusations that the three judges and the Advocate-General were biased but also criticised by name, in humiliating terms, the judges who had given the judgment of 29 September 1988 (see paragraph 11 above). 14.   On 5 February 1990 the Brussels Court of Appeal affirmed that judgment, holding inter alia: "..., as submitted by the prosecution, no action must or can be taken on the appellants’ application to the Court to ‘request Antwerp Principal Crown Counsel to produce to the Court the documents cited in the disputed articles that appeared in the weekly magazine Humo’, and in particular - under Article 877 of the Judicial Code - ‘all the documents from the X file’. As already indicated, it is not the Court’s task - nor is it within its jurisdiction - to consider the case already determined by the Antwerp Court of Appeal, on appeal from the Youth Court. It follows that the possible course - which is purely discretionary (Court of Cassation, 2 June 1977, Pas[icrisie] 1977, I, 1012) - provided in Article 877 of the Judicial Code of ordering that the documents in question should be added to the file of the present case would serve no useful purpose whatever. The appellants are accordingly bound to admit that they commented on a court case and besmirched the honour of magistrats without being in possession of all the necessary information, and this makes the complete irresponsibility of their malicious attacks even more flagrant. They further aggravate their position by offering ‘to prove the facts referred to in the relevant articles by any legal means, including an examination of witnesses, before the case is decided’ - an offer which not only must be rejected as being out of time but also clearly indicates - and this is the main point to be considered here - with what lack of care and information the articles in question were written and their accusations made, before the appellants even had sufficient evidence that they were true. In the present case the offer in question could not in any way support the appellants’ case; on the contrary, it clearly shows that the original plaintiffs’ arguments were well ‑ founded and it also lacks the requisite precision. It is not sufficient for the appellants to offer - as they nevertheless do - to prove that everything they have written in the past concerning ‘the case’ is the truth; it has to be specified minutely, point by point, what precise and clearly described fact - ‘precise and relevant’ in the words of Article 915 of the Judicial Code - is being offered as evidence. This is in order to make it possible for the opposing side to adduce rebutting evidence and to enable the Court to assess the relevance and importance of the facts adduced; the appellants did not even take the trouble to comply with this requirement. Furthermore, the Court already has before it all the information necessary to enable it to decide, in full knowledge of the facts, whether there has really been defamation. ... As regards the merits of the case, the court below, for ... relevant reasons that have not been refuted and with which this Court agrees, held that the original claim against the appellants was well-founded because the appellants had undeniably committed a gross fault in casting serious slurs on the honour and reputation of the original plaintiffs by means of unjustified accusations and offensive insinuations. Freedom of expression and of the press as guaranteed in Articles 14 and 18 of the Constitution and Article 10 para. 1 (art. 10-1) of the [European Convention on Human Rights] is not unlimited; certain bounds must not be overstepped and, as has already been pointed out, it is even possible, under Articles 1382 and 1383 of the Civil Code, to bring an action for damages where the press has acted wrongfully. Moreover, in relation to the tort in question, Articles 443 et seq. of the Criminal Code also refer to acts which may injure a person’s honour or expose a person to public contempt. Defamation of public authorities is punishable in the same way as defamation of individuals. Such defamation was precisely what the original plaintiffs in this case complained of and they undeniably constitute unlawful ‘acts’, as referred to in Article 1382 of the Civil Code, ‘that cause damage to another’. There is no basis for the appellants’ contention that ‘Article 443 of the Criminal Code is the sole provision in Belgian law which authorises the courts to restrict freedom to hold opinions with a view to protecting the honour and reputation of others; neither Article 764, 4, of the Judicial Code nor Article 1382 of the Civil Code does so’. According to that argument, the press, and it alone, is not subject to the ordinary, general rule in Articles 1382 and 1383 of the Civil Code, which impose a duty on ‘everyone’ to act lawfully and make everyone responsible for any damage caused through his own ‘act’, ‘failure to act’ or ‘negligence’. Under Article 10 para. 2 of the Convention (art. 10-2), freedom of the press may be subject to such restrictions as are prescribed by law and are necessary, as in the instant case, for the protection of the reputation or rights of others or for maintaining the authority and impartiality of the judiciary. Pursuant to Article 8 para. 1 (art. 8-1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, the guarantee of respect for private life requires that press articles should be truthful, must not be gratuitously offensive and must respect the privacy of the individual, criteria which were taken up in the ‘Declaration of Rights and Obligations of Journalists’ drawn up by the International Federation of Journalists and approved by the journalists of daily newspapers in different countries of the European Community in Munich on 24 and 25 November 1971, where Belgium was represented by the Professional Union of the Belgian Press. The appellants cannot in any way rely on Article 19 of the UN Covenant or of the Universal Declaration, since these similarly make no reference to unlimited freedom of expression. Furthermore, the appellants did not explain, and it cannot be discerned, why the generally applicable concept of fault, expressly provided in Articles 1382 et seq. of the Civil Code, should be incompatible with Articles 8 para. 1 and 10 para. 2 of the Convention (art. 8-1, art. 10-2) (whose precedence is not being called into question here) in relation to restrictions on freedom prescribed by law and the protection of private life, which is at issue here; nor why only journalists should not be subject to those provisions. In this connection, the Court wholly agrees with the relevant reasons set out in the judgment of the court below, which it adopts in their entirety. ... Admittedly, the European Court of Human Rights held in the Bruno Kreisky case that the Austrian journalist Lingens, who was concerned in that case, had attacked Mr   Kreisky exclusively as a politician and consequently had not violated his right to respect for private life. In the instant case, on the contrary, that right was well and truly - indeed grossly - challenged by the appellants. The words used and the insinuations and imputations made in the articles and passages in question are extremely virulent and dishonouring, since the original plaintiffs, referred to by name, were accused of having been biased as senior magistrats, and it was gratuitously insinuated that they had links with the VMO [Vlaamse Militanten Orde] and that they came from an extreme-right-wing background and belonged to the circle of friends of the children’s father - who was also, in the appellants’ opinion, extremely right-wing - so that the judicial decisions made by the original plaintiffs in respect of the children’s custody were only to be expected - all this without any serious and objective evidence whatever being adduced or existing to show that the accusations against these magistrats had any factual basis. ... The appellants manifestly intended to give their readers the impression that the judges and Advocate-General concerned had sided with one of the parties to the case and, furthermore, that their judgments were inspired by certain ideological views. Additionally, they needlessly and in a quite uncalled-for manner reminded their readers of the wartime activities of the second respondent’s late father, which the second respondent had absolutely nothing to do with and which - despite the appellants’ opinion to the contrary - belong exclusively to the protected sphere of private life. Even if the appellants believed that certain ideological views could be ascribed to the respondents (views which they have failed to prove that the respondents held), they cannot in any event be permitted purely and simply to infer from those views - even if they had been proved - that the judges and the Advocate-General were biased and to criticise that bias in public. In none of these suspicions or pieces of gossip directed against the judges and Advocate-General who brought the original action is there a shred of truth, and the applicants even lied in their article of 6 November 1986 (p. 19) when they stated that the case decided by those judges had been withdrawn from them by the Court of Cassation, whereas they have now had to admit in their additional pleadings (p. 6) that ‘Principal Crown Counsel at the Court of Cassation refused to order that the case should be transferred to another court (under Article 651 of the Judicial Code)’. On 6 November 1986 they announced: ‘Last Thursday the Wim and Jan case took a dramatic legal turn. On an application by Principal Crown Counsel ..., the Court of Cassation withdrew the X case from the Antwerp court and transferred it to the Ghent tribunal [de première instance] in the hope that the Ghent magistrats would adopt a less biased approach ...’ Admittedly, they went back on this point on 27 November, writing: ‘... Our prediction of a fortnight ago that the agonisingly slow progress being made in the Wim and Jan case was likely to leave the case stranded in the Antwerp courts has come true. In the teeth of all the evidence, the Court of Cassation has held that the Antwerp judiciary cannot be accused of any bias in this incest case and that the whole case can therefore continue to be dealt with in Antwerp ...’ False reports of this kind, however, caused the original plaintiffs irreparable damage, since to be accused of bias is the worst possible insult that can be levelled at a magistrat. The exceptional virulence of the appellants’ irresponsible criticisms can probably be explained - but not excused - by certain political quarrels (which, indeed, do not serve the interests of justice), as was acknowledged by the appellants themselves in the 12   February 1987 issue of Humo: ‘... If any further proof were needed of behind ‑ the ‑ scenes intrigues in the case of Mr   X and of the fact that political allegiances are definitely playing a role, this (premature?) leak to the press is one of the most persuasive pieces of evidence ...’ Because of the unacceptable way in which they were attacked in the impugned articles, the original plaintiffs were shown in a particularly unpleasant light and their honour and reputation were seriously undermined by insulting statements which without any doubt went far beyond what the appellants described as ‘their ability to take flak’. The appellants in fact nevertheless consider their aggressive style and offensive disparagements justifiable in a little paper like Humo, which they describe as ‘clearly critical and anti-bourgeois’. However, although, when ruling on the defamatory nature of contributions published in a magazine of this kind with a clear critical stance towards bourgeois society, one must not apply the same criteria as when ruling on libellous articles in an ‘ordinary’ newspaper, it nevertheless remains true that even in an avowedly critical magazine certain standards must be respected when criticisms are made, certain bounds must not be overstepped and it is not permissible to publish false information and unproved accusations with the clear aim of humiliating and wounding particular persons, as to do so undeniably amounts to an abuse of press freedom. While people are certainly entitled to be ‘anti-bourgeois’ (?), this does not authorise them to pour out pure gossip to the public - however limited their readership - by writing, for example: ‘The Advocate-General [YD] has since very properly been removed from this case for having exceeded his authority’ (Humo, 17 July 1986, pp. 6 and 7). Nevertheless, although the appellants have now, in their additional submissions, backed down and, saying that their earlier statement that the Advocate-General had been ‘removed’ had been a ‘personal interpretation’ of the ‘fact that at a given point he had ceased to sit’, such an ‘interpretation’ should impel these ‘journalists’ - however particularly ‘personal’ their style may be - to practise their profession in future in a less unscrupulous manner. In the 14 October 1988 issue of Humo (p. 15) - that is to say during the present proceedings and although they had announced in the same short piece that they would be appealing - the appellants made their position considerably worse still by again accusing the original plaintiffs of bias and criticising, in similarly degrading terms, the judges who delivered the judgment at first instance, who were mentioned by name. This article stated, among other things: ‘... The Vice-President, [YF], and the other judges, [YG] and [YH], dealt with the case carelessly (sic) ... We wonder whether their Lordships actually read Humo’s submissions ... But at no time has Humo ever brought up anything to do with the judges’ private lives (sic) ... Clearly, the Brussels judges [YF], [YG] and [YH] did not manage to give judgment with the necessary detachment and independence on their fellow judges of the Antwerp Court of Appeal. They are thus adhering to the line of biased judgments ...’ This could be interpreted as a particularly misplaced and culpable attempt to influence [the members of this Court], especially as the appellants predict, through counsel in their pleading (p. 27), that no newspaper will be prepared to publish the present judgment, a step that has in any case not been sought. As regards the question of the case having been dealt with ‘carelessly’, the appellants have still not grasped that usually - and rightly - the courts must attach greater weight - as they did in the instant case - to the findings of expert witnesses that the courts themselves have appointed and who have no connection with the litigants and whose objectivity therefore cannot be called in question by either of the parties rather than - as the appellants do - to the parties’ own experts, whose investigations, assessments and findings, however, form the main or even sole evidence on which the appellants believe they are entitled to rely to make their attacks. As is unfortunately only too often to be found, notably in court cases, even excellent university professors and specialists - in the instant case no fewer than three on each side - disagree among themselves and, particularly in the fields of psychology and psychiatry, hold diametrically opposed views - of which each claims to be 100% certain; this should prompt everyone - particularly journalists - to refrain from making accusations of bias - that is to say the most serious of all - against judges who have to make the final decision on issues as thorny as the custody of children, where strong passions are always aroused, and who must necessarily prefer one of the different versions put forward by the parties to the proceedings. In the instant case the appellants dared to go one step further by maintaining, without a shred of evidence, that they were entitled to infer the alleged bias from the very personalities of the judges and the Advocate-General and thus interfere with private life, which is without any doubt unlawful. Furthermore, the purpose of the present proceedings is not to decide what ultimately was the objective truth in the case that the original plaintiffs finally determined at the time but merely whether the comments in issue are to be considered defamatory, which is not in the slightest doubt. Although the appellants refused to acknowledge the fact, magistrats cannot be unreservedly put on the same footing as politicians, who can always adequately and promptly defend themselves, orally or in writing, against reprehensible personal attacks and are therefore less vulnerable than a magistrat, who is neither able nor entitled to do likewise. The status of a magistrat is radically different from that of all other holders of public office and of politicians and is in no way based on privileges or traditions but on the fact that it is necessary for the administration of justice, which entails particular tasks and responsibilities (see the speech delivered by F. Dumon, formerly Principal Crown Counsel at the Court of Cassation, at the opening session of the new judicial term on 1   September 1981, ‘Le pouvoir judiciaire, inconnu et méconnu’, p. 64). Given the discretion incumbent upon them by virtue of their office, magistrats cannot defend themselves in the same way as, for example, politicians, if certain newspapers, apparently hungry for lucrative sensational stories, attack them and drag them through the mud. Purely political cases are precisely what most of the case-law and legal opinion cited by the appellants in this connection relates to, however, and it is therefore not relevant to the instant case. Unlike a politician, a judge cannot discuss in public a case pending before him with a view to justifying his conduct, so that [the original plaintiffs’] failure to exercise their right of reply certainly cannot be held against them by the appellants (see Ganshof van der Meersch, formerly Principal Crown Counsel at the Court of Cassation, ‘Considérations sur l’art de dire le droit’, esp. p. 20); this duty of discretion has again recently been referred to by the Court of Cassation (Court of Cassation, 14   May 1987, [Journal des Tribunaux] 1988, p. 58)." 3. In the Court of Cassation 15.   Mr De Haes and Mr Gijsels applied to the Court of Cassation, which dismissed their appeal on points of law on 13 September 1991 (Pasicrisie 1992, I, p. 41). 16.   In their first ground of appeal, they alleged a violation of the right to an independent and impartial tribunal, relying, in particular, on Article 6 para. 1 of the Convention (art. 6-1). In their submission, certain passages of the Court of Appeal’s judgment raised legitimate doubts as to the impartiality of those who had written it. This was true, for instance, of the words "a little paper like Humo", the word "sic" in the extract from the article of 14 October 1988 (see paragraph 24 below) concerning the judgment of 29 September 1988 (see paragraph 11 above), a number of punctuation marks, such as the question mark after the term "anti ‑ bourgeois", and the statement that the article of 14 October 1988 was "a particularly misplaced and culpable attempt to influence [the members of the Court of Appeal]". The applicants also complained that due process had been disregarded in that, as they alleged, the Court of Appeal had referred to the article of 14 October 1988 of its own motion without their having been able to defend themselves on that point. The Court of Cassation rejected this ground, considering that "it could not be inferred from the mere fact that in their decision the appellate judges had shown that they preferred the arguments of one of the parties and disapproved of those of the other parties that there had been an infringement of the statutory provision and general principles relied on in this limb of the ground of appeal". As to the article that had appeared in Humo on 14   October 1988, the appellate judges had not referred to it of their own motion, since the respondents to the appeal on points of law had mentioned it in their submissions to the Court of Appeal. 17.   In their second ground of appeal Mr De Haes and Mr Gijsels complained of a violation of Articles 8 and 10 of the Convention (art. 8, art.   10). In finding against them on the basis of the general concept of fault in Articles 1382 and 1383 of the Civil Code, the Court of Appeal had, they said, made their freedom of expression subject to formalities, conditions, restrictions and penalties not prescribed by "law" within the meaning of Article 10 para. 2 of the Convention (art. 10-2) (first limb). Furthermore, by holding that press articles must strive to respect the truth, must not be gratuitously offensive and must respect the privacy of the individual, the Court of Appeal had created restrictions which went beyond what was strictly necessary in a democratic society; public discussion of the functioning of the judicial system was of greater importance than the interest of magistrats in protecting themselves from criticism (second limb). Lastly, the evidence in the file did not justify the Court of Appeal’s finding that the articles in dispute had disregarded the aforementioned restrictions (third limb). The Court of Cassation dismissed this ground of appeal, holding in particular: "As to the first limb: In reaching the conclusion that the appellants are liable for the consequences of their press articles, the Court of Appeal based its judgment not only on the finding - partly cited in this limb of the ground of appeal - that the appellants had committed an unlawful act and that they ‘did not explain, and it cannot be discerned, why the generally applicable concept of fault, expressly provided in Articles 1382 et seq. of the Civil Code, should be incompatible with Articles 8 para. 1 and 10 para. 2 of the Convention (art. 8-1, art. 10-2)’ but also on the undisputed finding, rightly raised by the respondents, that the appellants had been guilty of defamation as defined in Articles 443 et seq. of the Criminal Code. The Court of Appeal’s judgment sets out reasons (not challenged in this limb of the ground of appeal) for the finding that the appellants had committed a fault within the meaning of Article 1382 of the Civil Code. This limb cannot justify quashing the judgment of the court below and is accordingly inadmissible, as argued by the respondents. As to the second limb: Under Article 10 (art. 10) cited above, the exercise of the right to freedom of expression may be subject to the restrictions or penalties necessary in a democratic society for the protection of the reputation or rights of others or for maintaining the authority and impartiality of the judiciary. When asked to punish a given abuse of freedom of expression affecting members of the judiciary, the courts must endeavour to maintain a fair balance between the requirements of freedom of expression and the restrictions applicable under Article 10 para. 2 (art. 10-2) of the aforementioned Convention. In the instant case the Court of Appeal based its decision that the appellants had abused the freedom of expression secured in Article 10 para. 1 (art. 10-1) of the Convention for the Protection of Human Rights and Fundamental Freedoms not only on the need to protect the respondents’ private life but also on the unchallenged grounds that the accusations made had not been proved, the criticism had been directed against named judges, the matters relied on were irrelevant to the decisions that had been taken and the accusations had been inspired by a desire to harm the respondents personally and damage their reputation. In holding, as appears from the text of its judgment, that, ‘pursuant to Article 8 para.   1 (art. 8-1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, the guarantee of respect for private life requires that press articles should be truthful, must not be gratuitously offensive and must respect the privacy of the individual’, the Court of Appeal took the view that a balance had to be sought between the interests of a free press and private interests; it did not thereby decide that the general interest of a public discussion of the functioning of the judiciary was less important than private interests, nor did it add any restriction to the exceptions exhaustively set out in Article 10 para. 2 (art. 10-2). This limb of the ground of appeal cannot be allowed. As to the third limb: Regard being had to the foregoing considerations, the third limb lacks any basis in fact." 18.   In their third ground of appeal the applicants complained of the Brussels Court of Appeal’s refusal to take into consideration all the evidence that had been before the Antwerp Court of Appeal and to allow them to prove by any means the truth of their assertions. In their submission, Articles 6 and 10 of the Convention (art. 6, art. 10) had thereby been contravened. The Court of Cassation held: "The Court of Appeal decided not to grant the appellants’ application for leave to prove the truth of their accusations; in particular, it refused to order that the files of the cases which had given rise to the decisions criticised in the press should be admitted in evidence. It based its decision not only on the grounds cited in the ground of appeal but also on separate, undisputed findings: that the appellants had admitted besmirching the reputation of magistrats without being in possession of all the necessary information, which in itself constituted a fault; that the offer to bring evidence was out of time and ineffective; and that the Court of Appeal had before it all the information necessary to enable it to decide, in full knowledge of the facts, whether there had really been defamation. This ground of appeal cannot justify quashing the judgment of the court below and is accordingly inadmissible." B. The articles in issue 19.   The judgments against Mr De Haes and Mr Gijsels related to five articles that appeared in Humo (see paragraph 7 above). The first of these, published on 26 June 1986, included the following: "... Today, Thursday 26 June, the courts are due to rule in the long-running case of a well-known Antwerp notary who has been sexually abusing his two young sons. The notary himself comes from a distinguished Flemish family with close links to the most select financial circles in the country. All the indications are that the reputation of the father and grandfather count for more than the physical and mental health of the children. Up to now, the court has rejected, without batting an eyelid, all medical and psychiatric reports unfavourable to the notary. How can this be? Louis De Lentdecker has already written about this case in De   Standaard, albeit in veiled terms. However, he was promptly taken to task by the Antwerp Advocate-General on the ground that his report had ‘seriously compromised’ the children’s father. Yet De Lentdecker had mentioned absolutely no names. For our part, we will also refrain from mentioning the father’s name or those of the two under ‑ age children (for convenience, we will call the three-year-old boy ‘Wim’ and the six-year-old ‘Jan’ and give the family’s surname as ‘X’). For the rest, we have every intention of mentioning the other names involved as this is not the first time that the Antwerp courts have shown a lack of independence and given extremely odd judgments. This report is not for those of a sensitive disposition. We put the facts to a psychologist working in a centre for psychological, medical and social therapy, a magistrat, a paediatrician and two lawyers, none of whom has anything to do with the case. Each of them, independently of the others, advised us to report on the case in the interests of the children. ... After Jan was born,