CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 mars 2004

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FRANCE   (Application no. 53984/00)                       JUDGMENT     STRASBOURG   30 March 2004     In the case of Radio France and Others v. France, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Mr   A.B. Baka , President ,   Mr   L. Loucaides ,   Mr   C. Bîrsan ,   Mr   K. Jungwiert ,   Mr   M. Ugrekhelidze ,   Mrs   A. Mularoni , judges ,   Mr   P. Truche, ad hoc judge , and Mrs S. Dollé , Section Registrar , Having deliberated in private on 23 September 2003 and 9 March 2004, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 53984/00) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the national radio broadcaster Radio France, a company incorporated under French law (“the applicant company”), Mr Michel Boyon (“the second applicant”) and Mr Bertrand Gallicher (“the third applicant”), both French nationals, on 21 July 1999. 2.     The three applicants were represented before the Court by Mr   B.   Ader, a lawyer practising in Paris, and Mr A. de Chaisemartin, a lawyer at the Conseil d'Etat and the Court of Cassation. The French Government (“the Government”) were represented by their Agent, Mr   R.   Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs. 3.     The application was allocated to the Second Section of the Court (Rule   52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr J.-P. Costa, the judge elected in respect of France, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr P. Truche to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 4.     By a decision of 23 September 2003 [1] , the Chamber declared the application partly admissible. 5.     The applicants and the Government each filed observations on the merits of the case (Rule 59 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant company has its registered office in Paris. The other two applicants were born in 1946 and 1957 respectively and live in Paris and Saint-Cloud. 7.     In its issue no. 1272, dated 1 February 1997, the weekly magazine Le   Point published an “investigation” headlined “Vichy: Around the Papon Case”. Several pages focused on Mr Michel Junot, under the headline “1942-1943 Revelations: Michel Junot, deputy to mayor Jacques Chirac on the Paris City Council from 1977 to 1995, was Deputy Prefect at Pithiviers in 1942 and 1943. In that capacity, he was responsible for maintaining order in the two internment camps in his district, Pithiviers and Beaune-la-Rolande”. The article included the following passages: “' It has to be said that, all political consideration set aside, Vichy's civil servants gave a remarkable example of efficient, skilful and honest administration. ' That good-conduct citation, awarded in 1981, does not come from Maurice Papon, who has now been committed to stand trial in the Bordeaux Assize Court for 'complicity in crimes against humanity'. Those are the exact words used in L'illusion du bonheur , a book published ... by Michel Junot, a deputy mayor when Jacques Chirac ran Paris City Council between 1977 and 1995, who knows his subject, since he was Deputy Prefect in Pithiviers, in the département of Loiret, in 1942 and 1943. In that capacity he supervised the maintenance of order in the camp of that town, where thousands of Jews were interned before being deported to Auschwitz. Unlike Maurice Papon – and this is a significant difference between the two cases – he did not order anyone to be arrested, interned or transferred to Drancy. After the war Michel Junot enjoyed a brilliant career in France's highest administrative spheres before turning to politics. He was to become a member of parliament for Paris from 1958 to 1962, giving his allegiance to the CNI, which he never left. But it was on Paris City Council, where he served as mediator from 1977 to 1989 that he spent the longest part of his career. He is a former MEP and since 1978 has been the president of the Maison de l'Europe in Paris. Until now, he has always maintained that the internment camps in his district, Pithiviers, and Beaune-la-Rolande some twenty kilometres away, were not under his control. His main duties were to inspect the local districts and to compile ' general and confidential information ' files on local dignitaries. The Pithiviers camp? ' it was not under my jurisdiction. I never set foot in it ' he told L' Express magazine in 1990. An outright denial which is, however, inconsistent with several documents not previously published which Le Point has managed to obtain. Documents which clarify his field of activity. ... when he was appointed Deputy Prefect at Pithiviers on 9 June 1942 ... the camps at Pithiviers and Beaune-la-Rolande, originally intended for German prisoners of war, were already being used as internment camps prior to their inmates being deported, the first having left on 8 May 1942. Michel Junot, who was to remain in office for exactly a year to the day, took up his post in Pithiviers on 24 August 1942, that is, less than a month before the departure, on 20 September 1942, of a fresh transport of Jewish deportees. On that day a thousand detainees arrested during house-to-house searches in the Paris region, including 163 children under 18, were put on transport no. 35 and shipped off to Auschwitz via Drancy, the camp to the north of Paris. On the eve of their departure, Michel Junot informed the Prefect of his concerns about maintaining order. ' I hereby inform you that I have just been notified of the entrainment of a thousand Jews from the Pithiviers camp tomorrow from 5 p.m. onwards at Pithiviers railway station, and that all the gendarmes in my district apart from one officer per squad are therefore required to assist with the entrainment ... . ' ... Two days later, on 22 September, Junot did not hide his satisfaction when sending the Prefect the following report: ' The day of 20 September 1942 went very smoothly throughout my district. The limited police presence planned for the afternoon of 20   September could not be deployed ... because all the gendarmes in the area, except for one officer per squad, were required for the entrainment of the Jewish detainees of the Pithiviers camp, whose departure I was suddenly notified of on 19 September at 3   p.m. The entrainment was to take place between 4 and 7 p.m. at Pithiviers station at the far end of the avenue de la République where the communists had called on ... the inhabitants of Pithiviers to demonstrate at 6.30 p.m., and I was concerned that some incidents might occur which could disrupt an orderly departure. But nothing of the sort happened and the town remained perfectly calm. ' ... Then, in a ' monthly report ' drafted eight days later for his superiors, he scrupulously went over the events again. On 30 September 1942 he reported in detail on the situation in the two ' internment camps ', as he headed the third paragraph of his report. ' The Beaune-la-Rolande camp, which has been empty since the end of August, has been cleaned ', Junot stated. ' The conditions there are now excellent. Two transports of Jews passed through and spent twenty-four hours there before leaving for Drancy. There are only about twenty detainees left at the camp, doing maintenance work. ' Michel Junot went on: ' The Pithiviers camp had been occupied since the end of August by 1,800 Jewish internees of all categories, French and foreign, men, women and children, some arrested during the August and December 1941 round-ups, others for having infringed the regulations of the occupying forces (demarcation line, wearing the star of David, etc.). All of them, except those married to Aryans and a few mothers of young children, were placed on trains bound for Germany on 20   September. Finally the last internees left Pithiviers in the evening of the 24th for Beaune-la-Rolande so as to clear the camp, which was due to receive communist internees. In fact this last Jewish transport spent only twenty-four hours in Beaune before being sent on to Drancy on the orders of the occupying forces. ' Drancy was the last stop in France before they were deported to Germany and the final solution: their physical destruction. ... On reading this dry civil servant's prose, the Acting Prefect of Loiret, Jacques Marti-Sane, expressed his satisfaction in writing. He was pleased with the orderliness which had prevailed during the entrainment of the deportees, who until then had been crammed into huts surrounded by barbed wire and picked out by searchlight beams from the watchtowers. In an internal memorandum dated 1 October 1942 – another document not previously published – the Acting Prefect informed the head of the first division of the prefecture, who was responsible for organisation and surveillance: ' The Pithiviers Deputy Prefect may be called upon to intervene in the matter of the camps in an emergency and on my express instructions. In any event, in his capacity as the government representative in Pithiviers, he has the right to monitor the proper functioning of the camps. Accordingly, it seems to me essential that all instructions sent to the camp commandant should be copied to the Pithiviers Deputy Prefect, so that he is not bypassed. ' ... No fewer than seven transports left from camps in Loiret between June and September 1942, the last one under Junot's responsibility. In his October report, the Deputy Prefect expressed his concerns over the difficulty in maintaining order in Beaune-la-Rolande, which was full of ' French and foreign Jews who have contravened the regulations of the occupying forces (in particular, attempts to cross the demarcation line) and whom the German police have sent to the Beaune camp ' . As a conscientious official, Michel Junot went so far as to suggest: ' If there is a further rise in the number of internees, we should make plans to strengthen the security arrangements. ' In the same report, he pointed out that communists were gradually replacing the Jews in Pithiviers, though there were still 1,574 of the latter on 30 October 1942 compared with 1,798 on 26 September. ' The presence of this camp inside my district means that the sub-prefecture is receiving a number of letters asking for leave to visit and even for people to be released. I have had some standard-form replies drafted explaining that I have no power to take such measures and that only the Prefect who took the internment decision has any authority in that respect. There is nothing to report from the camp, which is guarded most efficiently by a detachment of gendarmes ', he wrote. ... On the day of the liberation of Orléans, 16 August 1944, Michel Junot was present. He waved the tricolour from the balcony of Loiret's prefecture. And he stood at the head of the prefecture steps to welcome André Mars, the commissaire de la République sent by General de Gaulle. But that did not stop him being swept away in the subsequent purge. On 14 December 1945, ten months after awarding Junot a 'certificate of participation in the Resistance', de Gaulle signed a decree removing him from office. The hero of Free France was acting in response to a decision of the National Purification Commission based on a report from the Loiret departmental liberation committee stating that Junot was 'a typical careerist, devoid of all moral scruples, not to be allowed to hold any kind of public office'.   However, like many servants of the French State, Junot claimed to have been playing a double game. He explained that he had worked for a 'network' of the Central Intelligence and Action Bureau ... citing his activity on behalf of General de Gaulle's intelligence service in London under the Occupation and the medals he had received as a result. He must have been persuasive, because when peace returned he was to be found once more as permanent secretary to various Ministers, before becoming a deputy prefect again in 1956 and then prefect in 1957. ...” 8.     An interview with Mr Junot was also published as part of the investigation. It included the following statement by him: “... It was only when I reported to the Prefect of Loiret that I discovered the existence of the camps. At that time I did not know who was interned there. There had been communists, at the time of the breaking of the Germano-Soviet pact. And there were foreign Jews. We did not know their ultimate destination. We only knew that they were going to Drancy. Rumour had it that they were being sent to work in salt mines in Poland. We obviously knew that they were not going off on a pleasant holiday. But I did not learn of the existence of the extermination camps until April 1945 when the first deportees returned. When I took up office, on 24 August 1942, all the transports except one had already left.” When the interviewer asked Mr Junot if he thought this “renewed interest in those dark years” was “necessary for the young generations” he replied: “If Frenchmen in those days made mistakes, or sometimes committed war crimes, I think there is the discreet veil of history...” 9.     At 5 p.m. on 31 January 1997 the third applicant, who is a journalist with France Info (a radio station controlled by the applicant company), broadcast the following report: “According to the weekly magazine Le Point , a former deputy mayor of Paris supervised the deportation of a thousand French and foreign Jews in 1942. Michel Junot, now aged 80, was Deputy Prefect of Pithiviers at the time. He admits that he organised the departure of a transport of deportees to Drancy. Michel Junot, whom General de Gaulle removed from office at the end of the war, claims to have been in the Resistance and subsequently rose through the ranks of the civil service. In his defence, the former deputy mayor of Paris between 1977 and 1995 maintains, like Maurice Papon, that he knew nothing of the fate of the deported Jews and says that the discreet veil of history should be drawn over the crimes of those days.” The way in which France Info operates is for the presenter to broadcast live, with two news bulletins and two news flashes per half-hour. He then breaks for an hour to update his information before going on air again. The above-mentioned broadcast was accordingly repeated by the third applicant and by other journalists sixty-two times between 6 p.m. on 31 January and 11.04 a.m. on 1 February, in either the same or a slightly different form. However, the broadcasts systematically specified that the report was based on an article published in Le Point. After 11 p.m., a number of news bulletins and flashes mentioned the fact that, “unlike Maurice Papon”, Michel Junot had never issued any orders for anyone to be arrested, interned or transferred to Drancy, sometimes adding that he was “responsible only for keeping order”. On 1 February 1997, from 5.45 a.m. onwards, several news bulletins and flashes (broadcast at 6.45, 7, 7.15, 8, 8.15, 8.23, 8.30, 8.45 and 9.33 a.m.) mentioned that Mr Junot denied the allegations published in Le Point . According to the applicants, this point was made systematically after 11.04   a.m. 10.     Mr Junot brought proceedings in the Paris Criminal Court against the second applicant, who is publishing director of the applicant company (the publisher), the third applicant and the applicant company as principal, accessory and civilly liable respectively for the offence of public defamation of a civil servant, contrary to sections 29, first paragraph, and 31, first paragraph, of the Freedom of the Press Act of 29 July 1881 (“the 1881 Act”). In their defence, the applicants argued that the case under section 31 of the 1881 Act was inadmissible, because Mr Junot had been retrospectively stripped of his status as a civil servant at the time of the Liberation. They also contended that the prosecution's case against the second applicant was inadmissible: the disputed statement had been broadcast live and its content could not therefore be construed as having been “fixed prior to being communicated to the public” within the meaning of section 93-3 of the Audiovisual Communication Act of 29 July 1982 (“the 1982 Act”). Moreover, they submitted that the third applicant had acted in good faith. In that connection, they argued that public interest in the period of the Occupation had been revived by the news of the Papon trial; that the third applicant had been in possession of the article published in Le Point on the previous day along with three agency dispatches; that it had been reasonable to link the cases of Mr Junot and Mr Papon because both men had held high public office during the Occupation and had subsequently enjoyed brilliant political careers; that the use of the conditional tense and the absence of any personal comment about Mr Junot demonstrated the journalist's caution; and that France Info had reported Mr Junot's denials from 6 a.m. on 1 February onwards. 11.     By a judgment of 25 November 1997, the Paris Criminal Court (Seventeenth Division) found the second and third applicants guilty as principal and accessory respectively of the offence of public defamation of a civil servant. It fined them 20,000 French francs (FRF) each and ordered them jointly to pay FRF 50,000 in damages. It also found the applicant company civilly liable and ordered by way of civil remedy that an announcement informing the public of the content of its judgment be broadcast on France Info every thirty minutes during a twenty-four hour period in the month following the date on which the judgment became final. With regard to the defamatory nature of the disputed allegations, the judgment reads as follows: “Mr Junot is alleged ... to have personally played an active role in the deportation of Jews in his capacity as Deputy Prefect of Pithiviers. This allegation, which undoubtedly damages the honour of the civil party, is moreover aggravated by the connection made between the case of Mr Papon – who has been committed for trial before the Gironde Assize Court to answer charges that he participated in crimes against humanity – and that of Mr Junot, with the suggestion that the latter was seeking to evade responsibility for the crimes committed during that period, over which he believes that 'the discreet veil of history should be drawn'. The fact that it was specified that, 'unlike Maurice Papon', Michel Junot 'did not issue any orders for anyone to be arrested, interned or transferred to Drancy' in no way detracts from the seriousness of the charge levelled at the civil party; the same can be said of the use of the conditional tense throughout the broadcasts. The allegations in question also cast doubt on Mr Junot's membership of the Resistance, which was reported as a mere 'claim' on his part, and suggested that he had been stripped of his status by General de Gaulle at the end of the war. These words also damage the civil party's honour and reputation.” The court found that Mr Junot had never lost the rank of Deputy Prefect, and that he should be considered as having been acting in that capacity in Pithiviers at the time of the facts alleged against him and accordingly to have been exercising public authority. It found that section 31 of the 1881 Act was therefore applicable. With regard to the good faith of the third applicant, the court found as follows: “There being a presumption that defamatory statements are made in bad faith, it is for the defendants to prove their good faith. It should first be noted that the repetition of defamatory statements already published in another medium does not in any way provide the person who repeats them with a defence; such journalistic practice is particularly to be deprecated, because it means that a statement that has not been verified by anyone subsequently reporting it acquires the appearance of an absolute certainty. This is what happened with Mr Junot: having assumed that the enquiries made by his fellow journalists at Le Point were reliable, Bertrand Gallicher simply repeated the magazine's allegations against the civil party without checking them. As evidence that he had carried out a serious investigation, Bertrand Gallicher told the Court that he had been in possession of the article published in Le Point on the previous day, and of three agency dispatches; however these dispatches, which simply quoted large sections of the magazine article, could not, without more, provide the journalist with a legal defence. The journalist also produced the documents mentioned in Le Point : the Prefect's memorandum of 1 October 1942, Michel Junot's notes of 19 and 22 September 1942 and the monthly reports for September and October 1942; however, these documents did not give him grounds for asserting that Michel Junot, Pithiviers Deputy Prefect, had supervised the deportation of a thousand Jews or that he had admitted having organised the departure of a transport of Jewish deportees. Neither the memorandum from the Prefect of Loiret dated 1 October 1942 specifying that the Pithiviers Deputy Prefect must be copied in on all the instructions given to the camp commandant, nor the memorandum of 19 September 1942 to the Prefect signed by Michel Junot and expressing his concerns about keeping order on 20   September 1942 in the event of communist demonstrations because all the gendarmes in the district had been drafted in to help with the 'entrainment of a thousand Jews', nor the report drawn up by Michel Junot on 22 September 1942 on the events of the day, which had been 'perfectly calm', prove that Michel Junot, Deputy Prefect, had played a personal part in the organisation and departure of that transport for Drancy. In fact, what these documents show is that he complained of having been notified only belatedly of the 'entrainment of a thousand Jews', that he did not receive copies of all the instructions sent to the camp commandant, a memorandum from the Prefect having been required to ensure that he was not 'bypassed' and that his concern was to maintain order outside the camps. Michel Junot's monthly reports for September and October 1942 do not carry any more evidential weight in this respect; while the first mentions that most of the Jews in the Pithiviers camp had been 'entrained' on transports bound for Germany on 20   September 1942; while both report on the occupancy rate of the two internment camps situated in his district and thus establish his 'responsibility in principle' for the camps (using Mr Serge Klarsfeld's formula); while they keep the Prefect informed of relations with the German forces and the circumstances in which the anti-Jewish laws were being applied and certainly show that Mr Junot was performing his functions of Deputy Prefect under the Occupation with zeal and determination, and without being troubled by too many scruples, they nonetheless do not prove that he played a personal part in the deportation of Jews or that he organised the departure of a transport of Jewish deportees. Turning to the other documents cited by the defence, namely a letter dated 19   September 1942 from the secretary-general for the police on the Conseil d'Etat to the Orléans Regional Prefect and the latter's reply dated 21 September 1942, and a memorandum dated 19 September 1942 from the Pithiviers Deputy Prefect to the captain of the gendarmerie and police superintendent, they cannot be regarded by the Court as having any evidential weight, since they are merely summarised on a plain sheet of paper. In short, the documents in Bertrand Gallicher's possession did not give him grounds for alleging that Mr Junot was guilty of having participated in crimes against humanity. Nor did these documents entitle the presenters who came on air after 0.33 a.m. on 1   February to repeat the allegation that the plaintiff had supervised the Jewish internment camps of Pithiviers and Beaune-la-Rolande and the maintenance of order in both camps. Lastly, the testimony of Mrs Mouchard-Zay recounting the dramatic circumstances of the various round-ups of Jewish men, women and children, the conditions in which they were transferred to and arrived in the two camps of Pithiviers and Beaune-la-Rolande, and the dramatic change in public opinion which coincided with these events, does not prove that Mr Junot played any part in the organisation of these deportations. While being aware of the professional constraints imposed by the need to break news rapidly, which is inherent in the very nature of radio, the Court notes that the journalists, far from merely reporting raw news objectively, endorsed the interpretation adopted by some of their fellow journalists, while going further by making a connection with the 'Papon case', no doubt with the intention of making the story more sensational. The disputed broadcasts were therefore particularly careless and contributed to the spread of rumour by repeating defamatory allegations. In relation to the allegation that Mr Junot was not a genuine member of the Resistance, the Court finds that the evidence produced by the defence is insufficient to cast doubt on his Resistance activities, which in any event have been vouched for by Jean-Claude Aaron, the leader of the Masséna network, by Colonel Rémy and by several people of Jewish descent who described the help he had given them during the Occupation. For all of the above reasons, the Court is unable to accept that [the third applicant] acted in good faith.” The court found the second applicant, in his capacity as publishing director, not liable for the first broadcast, which had been made live by the third applicant on 31 January at 6 p.m. It found, however, that the same statement had been repeated either in full or in condensed form by the various presenters who subsequently went on air, and considered that such “systematic repetition of the disputed statements” should be construed as “rolling broadcasting” within the meaning of section 93-3 of the 1982 Act. The court concluded as follows: “[The second applicant], as publishing director, whose duty it is to control what is broadcast on the channel for which he is responsible, is therefore liable in law as principal for the offence of defamation.” 12.     On appeal by the applicants, the Paris Court of Appeal (Eleventh Criminal Appeal Division) upheld the judgment of 25 November 1997 by a decision of 17 June 1998. On the question of the defamatory nature of the offending bulletin's content, it ruled as follows: “Words may be defamatory as the result of an insinuation, a question or an assertion. In addition, words must be assessed both in terms of their intrinsic meaning and in the light of their context. Attributing to Mr Junot responsibility for supervising the deportation of a thousand Jews and organising their despatch to Drancy was plainly an attack on his honour and dignity. The defence arguments ... tending towards proving the truth of the facts is not relevant here, quite apart from the fact that no evidence to that effect has been adduced. Moreover, comparing Mr Junot's position to that of Mr Papon, who had indeed just been committed for trial in the Bordeaux Assize Court, also necessarily had a defamatory resonance. The same defamatory classification must also be given to the passage '[Mr Junot] ... claims to have been in the Resistance'. Coming as it does between the reference to his being sacked by General de Gaulle and the comparison to Mr Papon, this can only insinuate that Mr Junot's assertion was false.” On the question of good faith, the judgment said: “Calumnious imputations are deemed to be in bad faith unless it can be established that they were made in pursuit of a legitimate aim, without any personal animosity, after a serious investigation and in temperate language. There is no doubt that providing information about the attitude of administrative officials during the period of the Occupation, particularly as regards one of the main dramas of that time, the deportation and extermination of Jews, is perfectly legitimate. Nothing in the file reveals any particular animosity on the journalist's part towards the civil party. On the other hand, the preliminary investigation was singularly lacking in rigour. The civil party has rightly observed that Mr Gallicher began to broadcast his remarks at 6 p.m. on 31 January, in other words when the issue of Le Point dated 1 and 2   February had just come out. In seeking to establish their good faith the defence cite three dispatches (AFP, AP and Reuters) which mentioned the article in Le Point and the content of a television programme in which Mr Junot had taken part. But the use of agency dispatches as one's main source, especially when they are purely repetitive and reproduce an article that has already been published does not constitute evidence that an attempt has been made, if not to conduct an investigation, then at least to check the information. In addition, the wholly gratuitous assertion that Mr Junot admitted his culpability is particularly reprehensible from both the criminal and the ethical points of view. As regards the debate about whether Mr Junot had been a member of the Resistance, the Criminal Court rightly noted that the documents produced by the defence were not sufficient evidence to the contrary, whereas his participation has been attested to by the leader of the Masséna network, Jean-Claude Aaron, by Colonel Rémy and by a number of persons of Jewish origin who have drawn attention to Mr Junot's courageous attitude. Moreover, the imputations contained in the message sent out were disproportionate in relation to the objective material that the accused maintained they had at their disposal, and here it should be noted, as clarification of this point may be helpful, that neither the use of the conditional tense pleaded in defence, nor the mention – very late in the day – of Mr Junot's denials, affect the gravity of the allegations made in dispatches broadcast several dozen times. The content of the documents which the defendants learned of in Le Point is not convincing in terms of the construction that has been placed upon them if they are to be considered to reflect Deputy Prefect Junot's attitude at the time of the departure of the last transport of Jewish deportees on 20 September 1942. The memo of 19 September from the deputy prefect to his prefect ... said: 'I have just been notified of the entrainment of a thousand Jews ... tomorrow', and he complained that he would therefore not have sufficient manpower to control a communist demonstration. The same deputy prefect sent a memo, dated 22 September, informing the prefect that there had been no incidents on account of the demonstration and that the departure of the transport had been orderly. The memo of 1 October 1942 from the Prefect of Loiret seems to echo his subordinate's concerns about being informed in stipulating that the deputy prefect 'in his capacity as the government representative ..., has the right to monitor the proper functioning of the camps'. The reports sent by Michel Junot to his prefect in September and October 1942 describe the situation in the camps but do not reveal that he had any power over them or initiative regarding them. The witness evidence heard in court did not provide any additional information about Mr Junot's duties. As to the other documents produced in court, the Criminal Court rightly found, for reasons which the Court of Appeal endorses, that they did not appear to have been in the defendants' possession at the time when the statement was broadcast. Moreover, they do not necessarily weaken Mr Junot's argument, since they include one memo he wrote on 15 April 1943 to the Prefect of Orléans about improving the food and bedding in the camps. It ends with the following sentence: 'Although the management and administration of the camps does not form any part of my duties, I wish to bring this state of affairs to your attention ...' All these texts portray an official dedicated to fulfilling his functions of maintaining public order and defending the political interests of the government. They do not support, without overstating the case, an assertion that Mr Junot supervised the camps or played a role in the deportation of the Jews. The plea of good faith is accordingly rejected.” The Court of Appeal noted the following in relation to the liability of the second applicant under section 93-3 of the 1982 Act: “... This section is intended to absolve the publishing director of an audiovisual operator of liability for live broadcasts whose contents he is unable effectively to monitor and control. But this cannot be said of a rolling news bulletin whose content may be monitored and controlled by making the necessary arrangements to that effect. It is significant in this respect that such steps were taken from the morning of 1   February onwards, when the content of the offending statement was amended. Moreover, it would be stretching the concept of prior fixing to contend that it must involve mechanical recording. Content may also be fixed by a communication method based on repetition which effectively requires it to be fixed but not necessarily by mechanical means. Therein lies the difference from 'live' broadcasting involving no repetition.” Moreover, by way of civil remedy, the court ordered the following announcement to be read out on France Info every two hours during a twenty-four hour period in the month following the date when the judgment became final: “By a judgment of the Paris Court of Appeal (Eleventh Division – Section A), Mr   Bertrand Gallicher, journalist, and Mr Michel Boyon, publishing director of Radio France, were each fined FRF 20,000 and ordered to pay damages for having defamed Mr Michel Junot, former Deputy Prefect of Pithiviers. This judgment follows the broadcasting, on 31 January and 1 February 1997, of news bulletins falsely alleging that Mr Michel Junot had played a part in the deportation of a thousand Jews and wrongly casting doubt on his membership of the Resistance.” On the subject of the broadcasting of the above announcement, the judgment reads as follows: “The Court is minded to uphold the order for the broadcasting of an announcement by France Info, which seems to be a remedy proportionate to the damage suffered but which the defence considers to be contrary to the provisions of Articles 6 and 10 of [the Convention] ... The Court does not agree, because freedom of expression under Article 10 of [the Convention] may be subject to such restrictions as may be necessary ... for the protection of the reputation of others, which is the case here. It is true that the effect of this order, as indicated by the defence, will be to reduce the 'editorial space' available to France Info, but the written press are already in the same position and it is difficult to find a justification for discriminating between the various media in that respect. Lastly, it would be wrong to deny the claimant, whose rights are equally important, the concrete remedy of broadcasting an announcement purely on the ground that the audiovisual medium is different from the traditional medium of the written press. Further, nothing in the order to broadcast an announcement may be construed as infringing the right to a fair trial within the meaning of Article 6 of the Convention ...” 13.     The applicants appealed on points of law. They submitted that the Court of Appeal had failed to apply the principle whereby the criminal law must be strictly interpreted, in that it had extended the scope of the presumption raised by section 93-3 of the 1982 Act (whereby the publishing director is liable as principal where “the content of the offending statement has been fixed prior to being communicated to the public”) to cover a “communication method based on repetition”. Relying in particular on Articles 6 and 10 of the Convention , they also complained of the order in the disputed ruling to broadcast the above announcement on France Info, the essence of their argument being that “there [was] no basis in legislation for the publication of a judicial announcement, which [was] nothing less than punishment for a civil wrong”. By a judgment of 8 June 1999, the Court of Cassation (Criminal Division) dismissed the appeal for the following reasons, inter alia : “... In finding the publishing director liable as principal for the offence created by section 93-3 of the Audiovisual Communication Act of 29 July 1982, the Court of Appeal both for its own and for adopted reasons ruled that the broadcasts containing the offending remarks had been, with the exception of the first bulletin, systematically broadcast on a rolling basis in exactly the same or in condensed form over a twenty-four hour period. It further found that this type of broadcasting allowed the publishing director to exercise control over the content before it was broadcast to the public. The court applied the law correctly in so ruling. The content of an announcement which is broadcast on a rolling basis must properly be construed as having been fixed prior to being communicated to the public within the meaning of section 93-3 [cited above]. ... ... although the criminal courts may order the publication of their judgments by way of penalty only if they are expressly authorised to do so by law, they may issue such an order by way of a remedy at the request of the civil party. Such a remedy, when ordered in a form achievable under the technical constraints of the medium in which publication is ordered, [does not breach] the Convention provisions cited in the appeal.” 14.     The announcement referred to in paragraph 12 above was broadcast on France Info between 31 July and 1 August 1999. II.     RELEVANT DOMESTIC LAW 15.     The relevant provisions of Chapter IV of the Freedom of the Press Act of 29 July 1881 (as amended) are as follows: Section 29 “It shall be defamatory to make any statement or allegation of a fact that damages 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.” Section 31 “Defamation by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, a representative or officer of the law, a minister of religion in receipt of a State salary, a citizen temporarily or permanently responsible for a public service or discharging a public mandate, a member of a jury or a witness on the basis of his witness statement [in speeches, shouts or threats made or uttered in public places or meetings, or in written or printed matter, drawings, engravings, paintings, emblems, images or any other written, spoken or pictorial medium sold or distributed, offered for sale or exhibited in public places or meetings, or on placards or posters on public display, or in any audiovisual medium] shall be punishable [by a fine of 45,000 euros]. Defamatory statements about the private lives of the above persons shall be punishable under section 32 below.” Section 41 “The following persons shall be liable, as principals, in the following order, to penalties for offences committed via the press: 1.     Publishing directors and publishers, irrespective of their occupation or title ...” 16.     Section 93-3 of the Audiovisual Communication Act of 29 July 1982 states: “In the event of one of the offences provided for in Chapter IV of the Freedom of the Press Act of 29 July 1881 being committed by an audiovisual operator, the publishing director ...shall be prosecuted as the principal offender provided that the content of the offending statement has been fixed prior to being communicated to the public. ... When the ... publishing director is prosecuted, the maker of the statement shall be prosecuted as an accessory. ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION 17.     The applicants complained that the criminal law had been extensively applied in that, when finding that “the content of the offending statement [had been] fixed prior to being communicated to the public” despite the fact that all the news bulletins and flashes concerned had been broadcast live, the domestic courts had based their finding of the second and third applicants' criminal responsibility on an interpretation by analogy of section 93-3 of the Audiovisual Communication Act (Law no. 82-652 of 29   July 1982 – “the 1982 Act”). They relied on Article 7 § 1 of the Convention, which provides: “1.     No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” 18.     The Government submitted that in the field of audiovisual communication the presumption of the publishing director's responsibility established by section 93-3 of the 1982 Act applied only to cases in which the content of a defamatory statement had been fixed prior to its communication to the public, where “prior fixing” of the statement enabled the publishing director to check its content before it was broadcast. In the case of a live broadcast that presumption did not in principle apply. In accordance with the rules of ordinary law, the prosecution had to prove that the publishing director had personally participated in broadcasting the statement. By ruling that there was “prior fixing” where a statement was broadcast repeatedly, the courts had merely interpreted that concept. They had by no means adopted reasoning to the accused's detriment by analogy. In the Government's submission, the applicants' argument amounted to equating the concept of “prior fixing” with that of “recording”, only a prior “recording” being capable of enabling the publishing director to exercise his power of supervision. Yet in the present case the criminal courts had exonerated the second applicant, the publishing director of Radio France, of all responsibility for the first bulletin, broadcast live on France Info; the applicants' convictions had been based on the later bulletins only. In doing so the courts had made a reasonable interpretation of the concept of “prior fixing”, adapting the case-law to the changing situation, through reasoning which was purely teleological and devoid of any analogy. The Government further submitted that the text of section 93-3 of the 1982 Act made no distinction between live broadcasts and pre-recorded programmes. It followed that the domestic courts had not extended the normal scope of that provision to cover a situation not provided for in the legislation. Parliament had deliberately used the concept of “prior fixing” rather than that of “prior recording”, the former being broader than the latter. The word “ fixation ” in the French language referred to “what is determined in advance”, which could therefore be checked. In short, the courts had not created a new charge or autonomous offence by analogy. In addition, the Government submitted that the interpretation of the term “prior fixing” in the present case had been “consistent with the essence of the offence”. Firstly, the intention had been to adapt the text to “new circumstances”, as France Info, the first European radio station to broadcast news programmes round-the-clock, had not been set up until 1987, quite some time after the enactment of the 1982 Act. Secondly, it was a reasonable reflection of the way the offence had originally been framed, since it was based on the possibility of supervision by th