CEDH · PRESS;GENERAL;ENG — 30 mars 2004

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s23A41E03 { width:36pt; display:inline-block } .s94935B0F { width:389.85pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS                       156   30.3.2004   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF RADIO FRANCE v. FRANCE     The European Court of Human Rights has today notified in writing its judgment [1] in the case of Radio France v. France (application no. 53984/00).   The Court held unanimously that there was: no violation of Article 7 § 1 (no punishment without law) of the European Convention on Human Rights; no violation of Article 6 § 2 (presumption of innocence) of the Convention; and no violation of Article 10 (freedom of expression) of the Convention.   (The judgment is available only in French).   1. Principal facts   The application was lodged by the national radio broadcasting company Radio France and by two French nationals, the broadcasting company’s editorial director, Michel Boyon, and a journalist on France Info (a channel controlled by the applicant company), Bertrand Gallicher. The applicant company has its registered office in Paris.   Mr Boyon was born in 1946 and lives in Paris and Mr Gallicher was born in 1957 and lives in Saint Cloud.   On 31 January and 1 February 1997, sixty or so news flashes and bulletins broadcast on France Info mentioned an article published in the weekly magazine Le Point which alleged that Michel Junot, deputy prefect of Pithiviers in 1942 and 1943, had supervised the deportation of a thousand Jews.   In connection with those broadcasts, a judgment of the Paris Criminal Court found Messrs Boyon and Gallicher liable for the offence of public defamation of a civil servant and fined them 20,000 French francs (FRF), equivalent to 3,048.98 euros (EUR), and ordered them to pay 50,000 FRF, equivalent to 7,622.45 EUR, in damages.   The applicant company was ordered to broadcast an announcement reporting that judgment on France Info every two hours during a 24-hour period.   By a judgment of 17 June 1998, the Paris Court of Appeal upheld the applicants’ sentences.   It considered that by alleging that Michel Junot had supervised the deportation of a thousand Jews and organised their transfer to Drancy, by comparing his situation with that of Maurice Papon (who had been committed for trial before the Assize Court), and by suggesting that he had not been a member of the Resistance, the disputed broadcasts had damaged his honour and dignity.   The criminal division of the Court of Cassation dismissed the applicants’ appeal on points of law on 8 June 1999.   2. Procedure and composition of the Court   The application was lodged on 21 July 1999 and declared partly admissible on 23 September 2003.   Judgment was given by a Chamber of seven judges composed as follows:   András   Baka (Hungarian), President Loukis Loucaides (Cypriote) Corneliu Bîrsan (Romanian) Karel Junwiert (Czech) Mindia Ugrekhelidze (Georgian) Antonella Mularoni (San Marinese), judges, Pierre Truche (French), ad hoc judge,   and Sally Dollé, section registrar .   3. Summary of the judgment [2]   Complaints   Relying on Article 7 of the Convention, the applicants complained that the scope of the criminal law had been over-extended.   They submitted that by considering that the disputed facts came within the scope of the 29 July 1982 Audiovisual Communication Act, the domestic courts had created a new category of offence by process of “analogy”.   The applicants further submitted that the 29 July 1982 Act created an irrebuttable presumption that the editorial director was liable, thereby infringing his right to the presumption of innocence guaranteed by Article 6 § 2 of the Convention.   Moreover they claimed that the Act undermined the principle of equality of arms in breach of Article 6 § 1 of the Convention (right to a fair trial).   Lastly, relying on Article 10 of the Convention, the applicants complained of a violation of their right to “impart information” as a result of the sanctions and measures imposed on them by the domestic courts.   Decision of the Court   Article 7 § 1 of the Convention   The Court noted that the presumption of liability raised against the editorial director by section 93-3 of the 29 July 1982 Act was a consequence of his duty to control the information broadcast by the medium in which he worked.   That liability only arose when there had been a “prior recording” of the disputed statement before it was broadcast.   France Info operates by broadcasting regular bulletins live on a rolling basis.   Hence the French courts did not find the editorial director liable for broadcasting the first bulletin, but considered that it constituted a “prior recording” for the purposes of subsequent broadcasts.   Accordingly they considered that the editorial director had been in a position to control the broadcasts in advance and found him criminally liable.   According to the Court, in the light of the way France Info operates, the criminal courts had interpreted the concept of “prior recording” consistently with the substance of the offence in question and in a way which was “reasonably foreseeable”.   The Court therefore held that there had been no violation of Article 7.   Article 6 §§ 1 and 2 of the Convention   The Court noted that the complaint under Article 6 § 1 overlapped with the complaint under Article 6 § 2 and that there was therefore no need for a separate examination of the facts under Article 6 § 1.   The 29 July 1982 and 29 July 1881 Acts provide that an editorial director is criminally liable for the broadcasting of a defamatory statement where a “prior recording” has been made of it before it is broadcast.   That presumption of liability was associated with another presumption which was not absolute, whereby defamatory statements are presumed to have been made in bad faith.   The editorial director could have escaped liability by proving either the good faith of the maker of the disputed statements, or that there had been no “prior recording” of the disputed statement.   Given the importance of what was at stake, i.e. the need to prevent the broadcasting of defamatory or damaging statements in the media by obliging the editorial director to exercise prior control, the Court found that the presumption created by the 29 July 1982 Act remained within the requisite “reasonable limits”.   Moreover, noting the care with which the French courts had scrutinised the applicants’ grounds of appeal in that respect, the Court found that they had not applied the law in such a way as to infringe the presumption of innocence.   Accordingly, it held that there had been no violation of Article 6 § 2.   Article 10 of the Convention   The Court noted that the applicants’ sentences constituted an interference with their right to freedom of expression.   The sentences of Messrs Boyon and Gallicher had a basis in the criminal law, as did, in the Court’s view, the order for the applicant company to broadcast an announcement. According to the Court, the applicant company’s civil liability was based on Article 1382 of the Civil Code relating to everyone’s liability for their own acts, and on consistent domestic case-law giving the courts exclusive jurisdiction to select the appropriate remedy for the damage suffered.   In that respect, it appeared that the publication of judicial announcements was a common remedy for damage caused by the press.   The Court also noted that the disputed interference pursued a legitimate aim, namely the protection of the reputation or rights of others.   As to whether that interference was proportionate to the aim pursued, the Court noted that the debate concerned an issue of general interest, namely the attitude of senior civil servants during the Occupation.   Moreover, the disputed publications and broadcasts had taken place against the background of a wide-ranging public debate surrounding the proceedings taken against Maurice Papon for participation in crimes against humanity.   As to the disputed broadcasts, they had quoted, with systematic references to their source, from a detailed and well-documented article and interview published in a reputable weekly magazine.   The France Info journalists could not therefore be accused of having failed to act in good faith simply because they had made those broadcasts.   However, the broadcasts alleged that Michel Junot had admitted “having organised the departure of a convoy of deportees to Drancy”.   According to the Court, that allegation, which had not been published in Le Point, did not accurately reflect the published article or interview.   The rest of the broadcasts quoted from the published information, summarising an investigation which was several pages long in a few sentences and highlighting its most striking aspects, thus presenting the facts in a much more categorical tone than had the magazine article.   Although the broadcasts were subsequently slightly amended, and pointed out that the person concerned denied the allegations, the original bulletin was nonetheless broadcast several times.     In view of the extreme seriousness of the facts inaccurately attributed to Michel Junot and his intention to broadcast the statements many more times, the journalist concerned should have exercised the utmost caution and shown special moderation, particularly since the bulletin was broadcast by a radio station covering the whole of France.   In those conditions, the Court considered that the reasons given by the Appeal Court in sentencing the applicants were “relevant and sufficient”.   As to the applicants’ sentences, the Court noted that Messrs Boyon and Gallicher had been found guilty of an offence and ordered to pay modest fines and damages.   Moreover, ordering the applicant company to broadcast a judicial announcement of 118 words a dozen times on France Info reflected the courts’ concern to tailor the remedy to the damage suffered and represented, according to the Court, only a limited encroachment on the editorial schedule of the channel concerned.   In the circumstances, the Court found that the measures taken against the applicants were not disproportionate to the legitimate aim pursued and could therefore be considered “necessary in a democratic society”. Accordingly the Court held that there had been no violation of Article 10 of the Convention.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments.   [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.