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Cite as: (1995) 20 EHRR 557, [2007] ECHR 112
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See also: ALLENET DE RIBEMONT v. FRANCE - 15175/89 [1995] ECHR 5 (10 February 1995)
ALLENET DE RIBEMONT v. FRANCE (INTERPRETATION) - 15175/89 [1996] ECHR 27 (7 August 1996)
COURT (CHAMBER)
CASE OF ALLENET DE RIBEMONT v. FRANCE
(Application no. 15175/89)
JUDGMENT
STRASBOURG
10 February 1995
In the case of Allenet de Ribemont v. France1,
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 A2, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr J. De Meyer,
Mr I. Foighel,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr G. Mifsud Bonnici,
Mr B. Repik,
and also of Mr H. Petzold, Acting Registrar,
Having deliberated in private on 27 October 1994 and 23 January 1995,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby France 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 Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention.
There appeared before the Court:
- for the Government
Mrs E. Belliard, Deputy Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Mr Y. Charpentier, Head of the Human Rights Section,
Legal Affairs Department, Ministry of Foreign Affairs,
Mrs M. Pauti, Head of the Office of Comparative and
International Law, Civil Rights Department, Ministry of
the Interior,
Mr F. Pion, magistrat,
on secondment to the European and International Affairs
Section, Ministry of Justice, Advisers;
- for the Commission
Mr J.-C. Soyer, Delegate;
- for the applicant
Mr J. de Grandcourt, avocat,
Mr R. de Geouffre de la Pradelle, avocat, Counsel.
The Court heard addresses by Mrs Belliard, Mr Soyer and Mr de Grandcourt.
AS TO THE FACTS
A. The background to the case
B. The press conference of 29 December 1976 and the implicating of the applicant
"TF1 NEWS
Mr Roger Giquel, newsreader: ... Be that as it may, here is how all the aspects of the de Broglie case were explained to the public at a press conference given by Mr Michel Poniatowski yesterday evening.
Mr Poniatowski: The haul is complete. All thepeople involved are now under arrest after thearrest of Mr De Varga-Hirsch. It is a very simplestory. A bank loan guaranteed by Mr de Broglie wasto be repaid by Mr Varga-Hirsch and Mr de Ribemont.
A journalist: Superintendent, who was the key figurein this case? De Varga?
Mr Ottavioli: I think it must have been Mr De Varga.
Mr Ducret: The instigator, Mr De Varga, and hisacolyte, Mr de Ribemont, were the instigators of themurder. The organiser was Detective Sergeant Simonéand the murderer was Mr Frèche.
Mr Giquel: As you can see, those statements include a number of assertions. That is why the police are now being criticised by Ministry of Justice officials. Although Superintendent Ottavioli and Mr Ducret were careful to (end of recording).
ANTENNE 2 NEWS
Mr Daniel Bilalian, newsreader: ... This evening, therefore, the case has been cleared up. The motives and the murderer’s name are known.
Mr Ducret: The organiser was DetectiveSergeant Simoné and the murderer was Mr Frèche.
Mr Ottavioli: That is correct. I can ...[unintelligible] the facts for you by saying thatthe case arose from a financial agreement betweenthe victim, Mr de Broglie, andMr Allenet de Ribemont and Mr Varga.
Mr Poniatowski: It is a very simple story. A bankloan guaranteed by Mr de Broglie was to be repaid byMr Varga-Hirsch and Mr de Ribemont.
A journalist: Superintendent, who was the key figurein this case? De Varga?
Mr Ottavioli: I think it must have been Mr De Varga.
Mr Jean-François Luciani, journalist: The loan was guaranteed by a life insurance policy for four hundred million old francs taken out by Jean de Broglie. In the event of his death, the sum insured was to be paid to Pierre De Varga-Hirsch and Allenet de Ribemont. The turning-point came last night when Guy Simoné, a police officer, was the first to crack. He admitted that he had organised the murder and had lent a gun to have the MP killed. He also hired the contract killer, Gérard Frèche, who was promised three million old francs and who in turn found two people to accompany him. The reasons for their downfall were, first, that Simoné’s name appeared in Jean de Broglie’s diary and, second, that they killed him in front of no. 2 rue des Dardanelles. That was not planned. The intention had apparently been to take him somewhere else, but Jean de Broglie perhaps refused to follow his killer. At all events, that was their first mistake. Varga and Ribemont apparently then refused to pay them. That led to the secret meetings in bars, the shadowing by the police and informers - we know the rest of the story - and their arrest. The second mistake was made by Simoné. Before contacting Frèche he approached another contract killer, who turned down the job but apparently talked to other people about it. To catch the killers, the police realistically based their investigation on two simple ideas. Firstly, the murder was committed in the rue des Dardanelles as Jean de Broglie was leaving De Varga’s home. There was necessarily a link between the killer and De Varga. Secondly, De Varga’s past did not count in his favour and the police regarded him as a rather dubious legal adviser. Those two simple ideas and over sixty investigators led to the discovery of the murderer.
Mr Bilalian: The epilogue to the case coincided with a Cabinet meeting at which the question of public safety was discussed ..."
12. On 14 January 1977 Mr Allenet de Ribemont was charged with aiding and abetting intentional homicide and taken into custody. He was released on 1 March 1977 and a discharge order was issued on 21 March 1980.
C. The compensation claims
1. The non-contentious application
2. The proceedings in the administrative courts
(a) In the Paris Administrative Court
On 21 February 1978 the Minister of Justice did likewise. After notice had been served on them by the Administrative Court on 14 March 1978, the Minister of the Interior and the Prime Minister filed pleadings on 21 and 27 April 1978 respectively. Mr Allenet de Ribemont filed more pleadings on 29 March and 24 May 1978.
Further pleadings still were filed on 29 March 1979 by the Minister of Culture, to whom the case file had been sent on 23 January 1979; on 6 June 1979 and 12 August 1980 by the Minister of the Interior; and on 14 May 1980 by the applicant.
"Mr Allenet, known as Allenet de Ribemont, has applied for an order that the State should pay compensation for the damage that the Minister of the Interior of the time allegedly caused him by naming him in statements made on 29 December 1976 during a press conference on the murder of Mr Jean de Broglie.
Although the State may be liable in damages for the administrative acts of a member of the Government, statements that he makes in the course of his governmental duties are not susceptible to review by the administrative courts. It follows that the application is inadmissible.
..."
(b) In the Conseil d’Etat
"Mr Allenet, known as de Ribemont, claimed compensation for the damage he allegedly sustained on account of statements made to the press on 29 December 1976 by the Minister of the Interior, the Director of the Criminal Investigation Department and the Head of the Crime Squad on the outcome of the police inquiries carried out as part of the judicial investigation into the murder of Mr Jean de Broglie. Statements made by the Minister of the Interior at the time of a police operation cannot be dissociated from that operation. Accordingly, it is not for the administrative courts to rule on any prejudicial consequences of such statements.
It follows from the foregoing that, although the Paris Administrative Court was wrong to rule in the impugned judgment that the applicant’s claim related to an act performed ‘in the course of governmental duties’ and thus not susceptible to review by the administrative courts, Mr Allenet’s appeal against the dismissal of his claim in that judgment is unfounded."
3. The proceedings in the ordinary courts
(a) In the Paris tribunal de grande instance
On 25 September 1984 the Prime Minister submitted that the tribunal de grande instance had no jurisdiction as such an action could only, in his view, be brought in the administrative courts.
After requesting the applicant to produce the full text of the statements attributed to the Minister and raising an objection that an action for defamation was time-barred, the Government Law Officer replied on 21 September 1984 and on 28 May 1985.
"Admissibility of the action brought against the Prime Minister
Section 38 of the Act of 3 April 1955 provides that any action brought in the ordinary courts for a declaration that the State is owed or owes payment for reasons unconnected with taxation or with State property must, subject to exceptions provided for by law, be instituted by or against the Government Law Officer, failing which the proceedings shall be void.
It follows that Patrick Allenet de Ribemont’s claim for reparation from the State for damage sustained on account of the statements attributed to the Minister of the Interior should have been lodged only against the Government Law Officer, who is the State’s sole representative before the courts, and not against the Prime Minister, who accordingly must not remain a party to the proceedings.
Jurisdiction
The Paris tribunal de grande instance must be held to have jurisdiction in so far as the statements attributed to the Minister of the Interior can be linked with a police operation and are not dissociable from that operation.
The press conference of 29 December 1976, held by the Minister of the Interior, the Director of the Criminal Investigation Department and the Head of the Crime Squad to inform the press of the results of the police inquiries following the murder of Jean de Broglie, may be considered indissociable from the police operation that was then under way.
...
The statements complained of
...
Anyone who complains of any statements, whether defamatory or merely negligent within the meaning of Article 1382 of the Civil Code, must prove that the impugned statements were actually made. It is not for the court to make good any omissions by the parties or to supplement evidence they have adduced, so long as they have been afforded the opportunity of presenting all their documents and arguments freely and in accordance with the adversarial principle.
In this respect, since the plaintiff has been unable to obtain the video recording of the press conference in question and the Government Law Officer considers that he is not under any obligation to request the judge in charge of preparing the case for trial or the court to order the compulsory production of such evidence, judgment must be given on the basis of the evidence in the case file.
Patrick Allenet de Ribemont has produced press cuttings describing the press conference of 29 December 1976, some of which are dated the day after the conference or the days following ... The newspapers did not, however, report the statements allegedly made by the Minister of the Interior, as set out in the writ.
However, in publications several years after the event, journalists attributed to the Minister of the Interior remarks about Patrick Allenet de Ribemont’s alleged role, and in Le Point of 6 August 1979, for instance, it is possible to read Michel Poniatowski’s statements, reported as follows:
‘Mr De Varga and Mr de Ribemont were the instigatorsof the murder. The organiser was DetectiveSergeant Simoné and the murderer was Mr Frèche’.
But, however carefully the journalists reported the statements in issue, the press articles relied on by Patrick Allenet de Ribemont cannot be accepted as the sole evidence in view of the objection raised by the defendant on this point.
It may further be observed, as a subsidiary point, that the publications at the time of the press conference in issue merely reported the remarks about Patrick Allenet de Ribemont’s involvement in Jean de Broglie’s murder allegedly made by Superintendent Ottavioli after the Minister of the Interior had spoken.
Accordingly, since the plaintiff has brought proceedings against the State solely on account of the remarks attributed to the Minister of the Interior, the action must be dismissed without there being any need to examine the submission that an action either for defamation - although the plaintiff has disputed that his action was for defamation - or for a breach of the secrecy of judicial investigations provided for in Article 11 of the Code of Criminal Procedure, is time-barred.
..."
(b) In the Paris Court of Appeal
"The preliminary objection of inadmissibility
...
It is apparent from the arguments set out below addressing the analysis of the damage that this is an action to establish the State’s liability on the ground that the judicial system has malfunctioned, rather than a civil action for defamation and/or breach of the secrecy of judicial investigations.
The merits
According to the appellant, Mr Poniatowski had made the following statement: ‘Mr De Varga and Mr de Ribemont were the instigators of the murder. The organiser was Detective Sergeant Simoné and the murderer was Mr Frèche’. It was allegedly apparent from the series of statements made by Mr Poniatowski, or by Mr Ducret and Mr Ottavioli under his authority, that all those guilty had been arrested, the haul was complete and the case was solved. These three had allegedly maintained that the motive for the crime was a bank loan obtained by Mr de Broglie to enable Mr de Ribemont to acquire a controlling interest in the Rôtisserie de la Reine Pédauque company.
However, as the court below rightly held, the press cuttings produced by Mr Allenet de Ribemont do not suffice to prove his allegations.
Even supposing, however, that they had been proved, it would be necessary to establish whether the damage alleged by the appellant could be linked to the impugned statements.
...
It has not been shown that the statements complained of, which were made during the judicial investigation, in themselves caused the alleged damage. In so far as this damage appears to be connected with the existence of criminal proceedings, it still cannot be held that the statements in issue affected the course of the case.
In the absence of any causal link between the impugned statements - should their exact terms be established - and the damage claimed, it is unnecessary to consider the subsidiary application to have the recording produced.
..."
(c) In the Court of Cassation
"The judgment [of the Paris Court of Appeal] has been challenged because it dismissed Mr Patrick Tancrède Allenet de Ribemont’s appeal on the ground that the press cuttings he had produced did not suffice to prove his allegations. It is argued, however, firstly, that the Court of Appeal distorted the meaning of those press cuttings, which proved conclusively that statements had been made by the Minister of the Interior and indicated their exact terms; secondly, that it infringed Article 1382 of the Civil Code by refusing to take into consideration the non-pecuniary damage sustained by Mr Patrick Tancrède Allenet de Ribemont; and, lastly, that it breached Article 13 (art. 13) of the European Convention on Human Rights by denying fair reparation to a man whose reputation had been injured in statements heard by millions of television viewers.
However, the Court of Appeal held in that judgment, adopting the reasoning of the court below, that the cuttings from the newspapers published on the day after the conference and on the following days did not report the statements allegedly made by the Minister of the Interior, as set out in the writ, but merely gave an account of remarks said to have been made by a police superintendent after the Minister had spoken, and that the remarks attributed to Mr Poniatowski, relating to Mr Patrick Tancrède Allenet de Ribemont’s alleged role as instigator, had been reported in a publication that appeared only several years after the event.
It was in the exercise of its unfettered discretion to assess the evidence before it that the Court of Appeal ruled, without distorting the meaning of the press cuttings, that they did not suffice to prove Mr Patrick Tancrède Allenet de Ribemont’s allegations.
In giving this reason alone - leaving aside the reasons criticised in the ground of appeal on points of law, which were subsidiary considerations - the Court of Appeal justified its decision in law.
..."
PROCEEDINGS BEFORE THE COMMISSION
27. Mr Allenet de Ribemont lodged his application with the Commission on 24 May 1989. He alleged that the statements made by the Minister of the Interior at the press conference of 29 December 1976 amounted to an infringement of his right to benefit from the presumption of innocence secured in Article 6 para. 2 (art. 6-2) of the Convention. He also complained, under Article 13 (art. 13), that he had not had an effective remedy enabling him to obtain redress for the damage he had allegedly sustained on account of those statements and, under Article 6 para. 1 (art. 6-1), that the domestic courts had not been independent and that the proceedings in them had taken too long.
FINAL SUBMISSIONS TO THE COURT
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 2 (art. 6-2) OF THE CONVENTION
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
A. Applicability of Article 6 para. 2 (art. 6-2)
However, the scope of Article 6 para. 2 (art. 6-2) is not limited to the eventuality mentioned by the Government. The Court held that there had been violations of this provision in the Minelli and Sekanina cases previously cited, although the national courts concerned had closed the proceedings in the first of those cases because the limitation period had expired and had acquitted the applicant in the second. It has similarly held it to be applicable in other cases where the domestic courts did not have to determine the question of guilt (see the Adolf v. Austria judgment of 26 March 1982, Series A no. 49, and the Lutz, Englert and Nölkenbockhoff v. Germany judgments of 25 August 1987, Series A nos. 123-A, 123-B and 123-C).
Moreover, the Court reiterates that the Convention must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory (see, among other authorities, the Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 16, para. 33; the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 87; and the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 36, para. 99). That also applies to the right enshrined in Article 6 para. 2 (art. 6-2).
B. Compliance with Article 6 para. 2 (art. 6-2)
1. Reference to the case at the press conference
2. Content of the statements complained of
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION
"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ..."
A. Period to be taken into consideration
In the Government’s submission the proceedings in the administrative courts were not to be taken into account. Those courts had given no decision on the merits and had relinquished jurisdiction pursuant to the principle of the separation of administrative and judicial authorities, which obliged the administrative courts to reject arguments which they could not entertain without interfering in the working of the ordinary courts. Mr Allenet de Ribemont’s lawyers could not have been unaware of this principle.
The applicant, on the other hand, maintained that the proceedings began with the application to the Paris Administrative Court, and that because of the dispute over jurisdiction the proceedings in the ordinary courts were a necessary continuation of the action in the administrative courts. In addition, it seemed so natural that the administrative courts should have jurisdiction in the case that the Prime Minister challenged the ordinary courts’ jurisdiction in the Paris tribunal de grande instance.
The period to be taken into consideration in order to determine whether the length of the proceedings was reasonable therefore began on 23 March 1977, when the non-contentious claim was lodged with the Prime Minister (paragraph 13 above - see, among other authorities, the Karakaya v. France judgment of 26 August 1994, Series A no. 289-B, p. 42, para. 29), and amounted to eleven years and approximately eight months.
B. Reasonableness of the length of the proceedings
1. Complexity of the case
2. Conduct of the applicant
Moreover, by not applying to the civil courts immediately after the Paris Administrative Court’s ruling that it had no jurisdiction, as he was entitled to do in French law, the applicant had prolonged the proceedings by approximately two years and seven months, that is to say the time which elapsed between that ruling and the judgment of the Conseil d’Etat.
It has already stated that, owing to the difficulty of determining exactly which hierarchy of courts had jurisdiction in the case, the applicant cannot be criticised for first applying to the administrative courts (see paragraph 46 above). That is true not only of the application to the court of first instance but also of the application to the appellate court, the latter being a consequence of the former, so that responsibility for the lapse of two years and seven months between the Paris Administrative Court’s judgment (13 October 1980) and the Conseil d’Etat’s judgment (27 May 1983) cannot be ascribed to Mr Allenet de Ribemont alone.
Accordingly, even supposing that the applicant could be held responsible for a delay of approximately three years and four months, there would still remain approximately eight years.
3. Conduct of the national authorities
Moreover, the administrative and judicial authorities constantly blocked production of the video recording which would have enabled Mr Allenet de Ribemont to prove what had been said at the press conference; the administrative authorities took certain steps that delayed the proceedings, such as sending the case file to the Minister of Culture, and did not produce the recording even though it was in their possession, while the judicial authorities refused to order production although the applicant could not secure this by his own means. The Court is in no doubt that this was the main cause of the slow progress of the proceedings.
As regards more particularly the way in which the courts dealt with the case, the Court notes that it took no less than five years and eight months for the administrative courts to rule that they had no jurisdiction, and that although the judge in charge of preparing the case for hearing in the Court of Appeal did indeed make an effort to expedite the proceedings, it does not appear from the file that any judge did so in the other ordinary courts.
C. Conclusion
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
A. Damage
The applicant also complained of injury to his reputation and that of his family; this had caused him non-pecuniary damage that was both considerable - because of the circumstances in which the statements had been made, the status of those who had made them and the fact that Mr de Broglie was an internationally known figure - and lasting, in spite of the discharge order made on 21 March 1980.
Mr Allenet de Ribemont assessed the damage he had sustained at FRF 10,000,000 in total.
Moreover, it agrees with the Delegate of the Commission that the applicant indisputably sustained non-pecuniary damage on account of the breach of Article 6 para. 1 (art. 6-1) and especially Article 6 para. 2 (art. 6-2). Although the fact that Mr de Broglie was well known, the circumstances of his death and the stir it caused certainly gave the authorities good reason to inform the public speedily, they also made it predictable that the media would give extensive coverage to the statements about the inquiry under way. The lack of restraint and discretion vis-à-vis the applicant was therefore all the more reprehensible. Moreover, the statements in issue were very widely reported, both in France and abroad.
Taking into account the various relevant factors and making its assessment on an equitable basis, as required by Article 50 (art. 50), the Court awards Mr Allenet de Ribemont a total sum of FRF 2,000,000.
B. Guarantee
C. Costs and expenses
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that there has been a breach of Article 6 para. 2 (art. 6-2) of the Convention;
2. Holds unanimously that there has been a breach of Article 6 para. 1 (art. 6-1) of the Convention;
3. Holds by eight votes to one that the respondent State is to pay the applicant, within three months, 2,000,000 (two million) French francs for damage;
4. Holds unanimously that the respondent State is to pay the applicant, within three months, 100,000 (one hundred thousand) French francs, plus value-added tax, for costs and expenses;
5. Dismisses unanimously the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 10 February 1995.
Rolv RYSSDAL
President
Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of Rules of Court A, the partly dissenting opinion of Mr Mifsud Bonnici is annexed to this judgment.
R. R.
H. P.
PARTLY DISSENTING OPINION OF JUDGE MIFSUD BONNICI
This judgment affirms for the first time that the fundamental right that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law" - "may be infringed not only by a judge or court but also by other public authorities" (paragraph 36). This is the main principle affirmed by this judgment.
On 13 April 1972 a bomb exploded on the roof of a house and Giuseppina Formosa, the housewife residing in the property, was torn to bits.
On 28 April 1972 the Commissioner of Police, the Head of the Police Corps, together with four of his officers, called a press conference. This dealt with the general problem of delinquency, the state of the police force and similar matters, and then the Commissioner proceeded to say that the line of investigation pursued in the Formosa bomb case had proved to be fruitful; that Emmanuel Formosa, the husband of the victim, had confessed; that he was going to be charged before the inquiring magistrate on the next day and that the husband had asked for the protection of the police as he was afraid of the reaction of his wife’s brothers.
The application was heard expeditiously by the court and rejected on 5 May 1972. On appeal, the Constitutional Court on 16 April 1973 confirmed the first judgment (DEC. KOST. 1964-1978 GH.ST.LIGI. p. 343). Formosa was afterwards tried and convicted of the homicide of his wife, on 13 July 1973.
1 The case is numbered 3/1994/450/529. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
2 Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
1 Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 308 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.