EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 18139/91

                      Nikolai Tolstoy Miloslavsky

                                against

                          the United Kingdom

                       REPORT OF THE COMMISSION

                     (adopted on 6 December 1993)

TABLE OF CONTENTS

                                                                 Page

I.         INTRODUCTION

           (paras. 1 - 14). . . . . . . . . . . . . . . . . . . . . 1

           A.    The application

                 (paras. 2 - 4 ). . . . . . . . . . . . . . . . . . 1

           B.    The proceedings

                 (paras. 5 - 9) . . . . . . . . . . . . . . . . . . 1

           C.    The present Report

                 (paras. 10 - 14) . . . . . . . . . . . . . . . . . 2

II.        ESTABLISHMENT OF THE FACTS

           (paras. 15 - 30) . . . . . . . . . . . . . . . . . . . . 3

           A.    The particular circumstances of the case

                 (paras. 15 - 26) . . . . . . . . . . . . . . . . . 3

           B.    Relevant domestic law

                 (paras. 27 - 30) . . . . . . . . . . . . . . . . .11

III.       OPINION OF THE COMMISSION

           (paras. 31 - 57) . . . . . . . . . . . . . . . . . . . .15

           A.    Complaints declared admissible

                 (para. 31) . . . . . . . . . . . . . . . . . . . .15

           B.    Points at issue

                 (para. 32) . . . . . . . . . . . . . . . . . . . .15

           C.    As to Article 6 para. 1 of the Convention

                 (paras. 33 - 44) . . . . . . . . . . . . . . . . .15

           D.    As to Article 10 of the Convention

                 (paras. 45 - 55) . . . . . . . . . . . . . . . . .17

           E.    Recapitulation

                 (paras. 56 - 57) . . . . . . . . . . . . . . . . .21

DISSENTING OPINION  of Messrs. Weitzel, Busuttil, Gözübüyük,

                    Reffi and Cabral Barreto. . . . . . . . . . . .22

APPENDIX I       HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .23

APPENDIX II      PARTIAL DECISION AS TO THE ADMISSIBILITY . . . . .24

APPENDIX III     FINAL DECISION AS TO THE ADMISSIBILITY . . . . . .33

I.    INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicant is a United Kingdom citizen born in 1935.  He lives

in Southall, Berkshire, and is represented before the Commission by

Messrs. Theodore Goddard, solicitors, London.

3.    The application is directed against the United Kingdom whose

Government are represented by their Agent, Mrs. A. Glover, Foreign and

Commonwealth Office, London.

4.    The application concerns libel proceedings brought against the

applicant following the distribution of a pamphlet accusing

Lord Aldington, Warden of Winchester College, of war crimes in May and

June 1945.  It raises issues under Article 6 para. 1 and Article 10 of

the Convention.

B.    The proceedings

5.    The application was introduced on 18 December 1990 and registered

on 26 April 1991.

6.    On 20 February 1992 the Commission declared the application

partly inadmissible and adjourned its examination of the remainder of

the application.

7.    At the invitation of the Commission written observations were

submitted by the respondent Government on 2 June 1992 and observations

in reply were submitted by the applicant on 6 October 1992.

8.    An oral hearing was held on 12 May 1993 after which the

application was declared admissible.  At the hearing the parties were

represented as follows: for the Government: Mrs. A. Glover, Agent,

Mr. David Pannick QC, Mr. J. Witherston and Mrs. Emma Matthews, Lord

Chancellor's Dept., Mr. Iain Christie, Foreign & Commonwealth Office;

for the applicant: Mr. Anthony Lester QC, Ms. Dinah Rose.

9.    After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.    The present report

10.   The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

           MM.   C.A. NØRGAARD, President

                 A. WEITZEL

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 H.G. SCHERMERS

                 H. DANELIUS

           Sir   Basil HALL

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 M.A. NOWICKI

                 I. CABRAL BARRETO

11.   The text of this Report was adopted on 6 December 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

12.   The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i)    to establish the facts, and

ii)   to state an opinion as to whether the facts found disclose a

      breach by the State concerned of its obligations under the

      Convention.

13.   A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

14.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    The particular circumstances of the case

15.   In March 1987 a pamphlet written by the applicant was circulated

by a Mr. Watts to parents, boys and staff at Winchester College.  The

pamphlet was also circulated to Members of Parliament, Members of the

House of Lords, the press and to former members of the school.

Mr. Watts had a grievance against Lord Aldington, Warden of Winchester

College, in his capacity as Chairman of an insurance company.  The

pamphlet is entitled "War Crimes and the Wardenship of Winchester

College" and it refers to events in Austria in May and early June of

1945.  The pamphlet stated, inter alia, the following:

      "Between Mid-May and early June 1945 some 70,000 Cossack and

      Yugoslav prisoners-of-war and refugees were handed over to Soviet

      and Titoist communist forces as a result of an agreement made

      with the British 5 Corps administering occupied Austria.  They

      included a large proportion of women, children, and even babies.

      The majority of Cossack officers and their families handed over

      held League of Nations passports or those of the Western European

      countries in which they had found refuge after being evacuated

      from Russia by their British and French Allies in 1918-20, and

      were hence not liable to return under the terms of the Yalta

      Agreement, which related only to Soviet citizens.

      ...

      As was anticipated by virtually everyone concerned, the

      overwhelming majority of these defenceless people, who reposed

      implicit trust in British honour, were either massacred in

      circumstances of unbelievable horror immediately following their

      handover, or condemned to a lingering death in Communist gaols

      and forced labour camps.  These operations were achieved by a

      combination of duplicity and brutality without parallel in

      British history since the Massacre of Glencoe.  Outside Lienz may

      be seen today a small Cossack cemetery, whose tombstones

      commemorate men, women and children shot, clubbed, or bayonetted

      to death by British troops.

      ...

      The man who issued every order and arranged every detail of the

      lying and brutality which resulted in these massacres was

      Brigadier Toby Low, Chief of Staff to General Keightley's

      5 Corps, subsequently ennobled by Harold Macmillan as the

      1st Baron Aldington.  Since 1979 he has been Warden of Winchester

      College, one of the oldest and most respected of English public

      schools.  Whether Lord Aldington is an appropriate figure for

      such a post is primarily a matter for the College to decide.  But

      it is also surely a legitimate matter of broader public concern

      that a man responsible for such enormities should continue to

      occupy a post of such honour and prominence within the community,

      in particular one which serves as exemplar for young people

      themselves likely one day to achieve high office and

      responsibility.

      ... The truth is, however, that Lord Aldington knows every one

      of his pleas to be wholly or in large part false.  The evidence

      is overwhelming that he arranged the perpetration of a major war

      crime in the full knowledge that the most barbarous and

      dishonourable aspects of his operations were throughout

      disapproved and unauthorised by the higher command, and in the

      full knowledge that a savage fate awaited those he was

      repatriating.

      ... Those who still feel that a man with the blood of 70,000 men,

      women and children on his hands, helpless charges whom the

      Supreme Allied Commander was making every attempt to protect, a

      suitable Warden for Winchester might care to ask themselves (or

      Lord Aldington, if they can catch him) the following questions:

      ...

      Lord Aldington has been repeatedly charged in books and articles,

      by press and public, with being a major war criminal, whose

      activities merit comparison with those of the worst butchers of

      Nazi Germany or Soviet Russia.  ..."

16.   Lord Aldington sued for libel.  The proceedings were originally

brought against Mr. Watts and the applicant was joined later at his own

request.

      In his statement of claim Lord Aldington claimed that

      "In their natural and ordinary meaning the words contained in the

      said document meant and were understood to mean:

      1.  That the plaintiff in the full knowledge of the savage fate

      of his victims and in the full knowledge that his actions were

      throughout disapproved and unauthorised by higher command,

      arranged every detail of the massacre of 70,000 men, women and

      children, and by a combination of duplicity and brutality without

      parallel in British history since the massacre of Glen Coe,

      compelled his subordinates to commit horrifying and nightmarish

      atrocities and was guilty of gross violation of the laws of war

      and humanity and flagrant contravention of the Geneva Convention

      on Prisoners of War, and

      2.  That the plaintiff was a major war criminal whose activities

      merit comparison with those of the worst butchers of Nazi Germany

      or Soviet Russia."

17.   The defence pleaded "justification" and "fair comment", the

particulars of justification including the following:

      "The plaintiff was therefore responsible for the torture, brutal

      treatment and/or death of about 35,000 Yugoslavs following the

      Second World War."

18.   Lord Aldington initially wanted the trial to be before a single

judge, but the applicant exercised his right to a jury trial.

      The trial began on 2 October 1989.  The judge devoted some

10 pages of his summing-up to the question of the assessment of damages

if defamation was established.  He advised the jury, inter alia, as

follows:

      "... Let us now, members of the jury, ... deal with the aspect

      of damages... I have to give you this direction in law because

      damages may arise ... If the plaintiff wins, you have got to

      consider damages ... the means of the parties - the plaintiff or

      the defendant - is immaterial ...

      Neither, as I think I said earlier but I say it now, is the

      question whether Lord Aldington or Count Tolstoy, or for that

      matter Mr. Watts, have been or will be financially supported by

      any well wishers as to damages relevant at all.  Nor is it

      relevant the undoubted fact that legal aid is not available in

      libel cases to a plaintiff or a defendant.  All irrelevant, and

      if it is to be changed it is up to Parliament to do something

      about it...

      ... what you are seeking to do, what a jury has to do, is to fix

      a sum which will compensate the plaintiff - to make amends in

      financial terms for the wrong done to him, because wrong has been

      done if you have got to the stage of awarding damages.  It is not

      your duty or your right to punish a defendant ...

      What [Lord Aldington] does claim, of course, is for 'general

      damages', as lawyers call it, a sum of money to compensate him.

      First of all, you have to take into account the effect in this

      case, as in every case where there is libel, on the position,

      standing and reputation of the successful plaintiff ...

      Members of the jury, of course, you must not, as a result of what

      I have just said, just bump and bump the damages up.  You must,

      at all times, as they say, keep your feet on the ground.

      ... You have to take into account the extent and nature of the

      publication.

      ... whilst you must leave aside any thought of punishing the

      defendants if you find for the plaintiff, juries are always

      entitled, as I have hinted already, to take into account any

      conduct of the defendant which has aggravated the damages - that

      is to say, made the damage more serious and the award higher -

      or mitigated them - made the damage done less serious and the

      award smaller.

      ...

      Now, two general remarks which I make in every case:  nobody asks

      you how you arrive at your verdict, and you do not have to give

      reasons like a Judge does, so it is exceedingly important that

      you look at the matter judicially, and that means that you should

      not be outrageously or unreasonably high, or outrageously or

      unreasonably low.

      The second matter I say to every jury is:  please, I beg you, if

      you come to damages, do not pay the slightest attention to any

      other case or the result of any other case you may have read

      about or heard about.  The facts and the legal considerations are

      like to have been completely different.  There is no league of

      damages in defamation cases.  There  is no first division, there

      is  no fourth division, there is no Vauxhall conference, if any

      of you are interested in football.

      So, members of the jury, please forget other cases.  Use your own

      common sense about it.  How do you translate what I have said

      into money terms?  By our rules and procedure, members of the

      jury, counsel can use, and a judge can use, words like 'very

      substantial' or 'very small', but we do not either of us, counsel

      or judges, mention figures.  Some people again, who have not

      really considered the matter very carefully, wonder about that,

      and they say juries should be given guidance, and I say to you

      what I say to every jury in these cases, it would not be a great

      deal of help for you, because inevitably, it is human nature and

      it would be their duty - counsel for the plaintiff would be at

      the top end of the scale and perhaps in some cases, I do not

      suggest this one, off the clock, and counsel for the defendant

      would be at the bottom end of the scale in the basement.  Now,

      that would not be much good to anybody.  As for the Judge, well

      the jury might think - you may have an exactly opposite view -

      a jury might think;  'Well, on the whole, whatever other people

      say about this particular Judge in this case, we think he tried

      to be fair, why doesn't he suggest a figure to us?'

      Supposing a Judge, myself in this case, were to suggest a figure

      to you, or a bracket between so and so and so and so, there would

      be two possibilities:  one is that you would ignore what I said

      and either go higher than my figure or bracket, or much lower,

      in which case of course the losing party that did not like it

      would be off to the Court of Appeal saying: 'Look, the Judge

      suggested a figure and the jury went above it or below it'.

      Supposing you accepted my suggestion, and gave a figure that I

      recommended, or close to it.  Well, all I can say is that you

      would have been wasting your valuable time in considering the

      matter of damages because you would just have been acting as a

      rubber stamp for me, or the Judge,  whoever it was.  So we do not

      have that over-bidding or under-bidding, as the Court of Appeal

      has called it, by counsel, and we do not have Judges trying to

      lay down to juries what they should award, and I do not hesitate

      to say, whatever other people say, I hope and pray, for the sake

      of our law and our court, we never get the day when Judges

      dictate to juries so that they become rubber stamps.

      I am, however, allowed - indeed encouraged - by the Court of

      Appeal just to say a little bit more.  I say it not perhaps in

      the words of the Court of Appeal, but in my own way, which may

      be too homely for some, but I say to you that you must remember

      what money is.  You do not deal in Mickey Mouse money just

      reeling off noughts because they sound good, I know you will not.

      You have got to consider money in real terms.  Sometimes it is

      said 'Well, how much would a house cost of a certain kind', and

      if you are giving a plaintiff as compensation so much money how

      many houses is he going to buy?  I do not mean to suggest that

      Lord Aldington or any other plaintiff would take his damages and

      go and buy a house or a row of houses, but that relates it to the

      sort of thing, if you will allow me to say, you and I do know

      something about, because most of us have a pretty good idea how

      much houses are worth.  So remember that."

19.   On 30 November 1989 the jury returned its verdict that the

statements of fact made in the pamphlet were not substantially true,

that the pamphlet contained expressions of opinion, that those

expressions of opinion were not fair, in the sense that they could not

honestly be made by a fair-minded man, that they found for Lord

Aldington and not for the defendants, and awarded damages amounting to

£1,500,000.  An order that the applicant should pay Lord Aldington's

costs was also made.

20.   The applicant gave notice of appeal, setting out eight grounds

of appeal:

1.    The learned judge displayed throughout the course of the hearing

      overt animosity towards the defendant.

2.    The learned judge sought unfairly to discredit this defendant's

      case by continual interruption, sarcasm and abuse of counsel

      acting on his behalf.

3.    The learned judge insulted and disparaged witnesses called on the

      defendant's behalf.

4.    At no time did the learned judge display any such animus or

      prejudice towards the plaintiff, his counsel or his witnesses.

5.    The learned judge invited the jury to accept statements made by

      Dr. Robert Knight on behalf of the plaintiff about matters of

      expertise regarding which Dr. Knight was manifestly unqualified

      to speak.

6.    Above all, the learned judge, throughout his summing-up wholly

      or in large part suppressed or ignored many of the most important

      aspects of the case for the defence, presented others in so

      confused, abbreviated or disparaging a manner as to nullify their

      effect;  and distorted others in a fashion calculated seriously

      to mislead the jury on issues central to this defendant's case.

7.    When directing the jury on the question of damages, the tenor of

      the learned judge's remarks was in large part to urge the jury

      to award high damages to the plaintiff and to discount the

      alternatives which were reasonably available on the evidence.

8.    The damages awarded were in any event unreasonable and excessive.

21.   Lord Aldington applied for security for costs under Order 59,

Rule 10, para. 5 of the Rules of the Supreme Court 1965, that is, that

the applicant should be required to give security in an amount which

would cover the costs of Lord Aldington's representation if the appeal

were to be unsuccessful.  It was not disputed that the applicant would

not be able to pay Lord Aldington's appeal costs if the appeal were

unsuccessful.

22.   The application for costs was heard by the Registrar of the Court

of Appeal.  In the course of the hearing he reduced Lord Aldington's

solicitors' estimate of their costs on appeal from £188,000 to

£124,900.  The Registrar gave a reserved, 22-page judgment on

18 May 1990.  He recalled that impecuniosity was not a ground for

awarding security for costs at first instance, although it was in

respect of the costs of an appeal to the Court of Appeal.  In deciding

whether, in the exercise of its discretion, it would award security for

costs, the Court would take into account the merits or otherwise of the

appeal concerned. The Registrar referred to an open offer by

Lord Aldington on 2 February 1990 of an undertaking not to enforce

£1,200,000 of the damages awarded.  The Registrar considered that,

subject to the question of whether an appeal on quantum only would be

academic because of the offer to accept reduced damages, security for

costs should not be awarded in respect of the appeal on quantum.  As

to liability, the Registrar considered the facts raised by the

applicant, together with purported new evidence, and concluded that,

in respect of five points, his case had "just enough strength to lead

[him] to conclude that security for costs should not be awarded in this

case."  He stated that

      "...It may be that, if (and I emphasise if) Count Tolstoy

      succeeds in convincing the Court of Appeal that he has not had

      a fair trial, and his case has not been fairly and clearly put

      to the jury, the Court of Appeal might well conclude that a new

      trial had to be ordered (following the approach adopted recently

      by this Court in X v. Cain), notwithstanding the fact that the

      chances of the appellant succeeding on the new trial were slim.

      Having reached the conclusion that security should not be awarded

      even on the liability appeal, it is not necessary for me to deal

      with the question whether security on a quantum only appeal would

      be called for on the grounds that it was academic."

      He decided that security for costs should not be awarded.

23.   Lord Aldington appealed against the Registrar's decision to the

full Court of Appeal, which heard the matter for six days from

9 to 17 July 1990 and gave judgment on 19 July 1990.

Sir Stephen Brown, presiding, recalled the law, and recalled that the

Court now had to consider the application afresh and to decide whether

to order security would amount to a denial of justice to the applicant,

having regard to the merits of his appeal.  He then went through the

proceedings, noting that no criticism was made in the applicant's

grounds of appeal of the judge's directions on the law.  Criticism was

directed particularly at the way in which the judge behaved to the

applicant and the way in which the judge dealt with three particular

issues of fact.  He went on:

      "Each member of this court has perused the transcripts with great

      care.  I have read the transcript of the summing-up and the

      transcripts of the addresses of counsel, both before and after

      hearing the criticisms which have been made by Count Tolstoy.

      I do not consider that Count Tolstoy's criticisms are justified.

      The judge clearly left to the jury the decision on the facts of

      the case.  All the major matters were in my judgment dealt with

      fully and fairly.

      The judge's repetition of Mr. Rampton's questions at the end of

      his summing-up quite clearly brought to the jury's minds the

      matters which the defence contended were of primary significance.

      Counsel were given full opportunities to raise matters of alleged

      error, and when they deemed it necessary they did so.

      Furthermore the principal witnesses were in the witness box for

      some 13 days in all.  Lord Aldington, who was the central witness

      in the case in the sense that it was his conduct which was the

      subject of examination, was in the witness box for no less than

      six and a half days.  It is inconceivable that the jury did not

      take fully into account and act on the evidence of the principal

      witnesses who were so comprehensively examined and cross-examined

      upon all the material issues in the case.

      This was essentially a case for a jury.  It is to be observed

      that at a preliminary stage when Lord Aldington had asked for the

      case to be tried by a judge alone, Count Tolstoy resisted his

      application. The case was duly tried by a jury.  In my judgment

      it was correct that this case should have been tried by a jury.

      It was a classic case for a jury to decide.  It is further clear

      from the judge's enquiry made in the course of the trial as to

      the status of the jurors, though not their identities, that this

      was an intelligent jury.

      In the result I do not believe that Count Tolstoy has any

      reasonable chance of making good his grounds of appeal or any of

      them.  There is no merit in them.

      ...

      ... on the issue of liability I am unable to discern any merit

      in the appeal.

      The quantum of damage is a very large sum.  However, there is no

      doubt that the learned judge gave an impeccable direction on

      damages.  Count Tolstoy has argued that the judge invited the

      jury to give excessive damages.  A correct reading of the

      transcript shows that he did just the opposite.  There is no

      merit in that submission. The award was entirely within the

      jury's discretion and they received a very full direction about

      it.  I have no doubt that it was meant to mark their view of the

      enormity of the gross libel which had been published and

      persisted in.

      ...

      In my judgment this is a clear case for an order for security for

      costs.  The Registrar at the hearing before him considered the

      amount of the estimated costs of the plaintiff on the proposed

      appeal and he reduced his solicitors' estimate of £188,000 to

      £124,900, using his knowledge and expertise in this particular

      field. I would adopt the learned Registrar's approach on that

      particular matter.  Accordingly I would allow the plaintiff's

      appeal from the Registrar, and order that security for costs be

      provided by the defendant in the amount of £124,900 within

      14 days."

24.   Lord Justice Russell, agreeing, added:

      "The court will be very slow to interfere with the jury's verdict

      unless there has been some material irregularity in the

      proceedings which renders the verdict unsafe or unsatisfactory,

      or it can properly be said that the verdict is perverse.  Much

      the same considerations must apply in the instant case.

      As to any irregularity in the proceedings, I detect none. ...

      This case, and the jury's verdict, depended essentially upon the

      veracity of Lord Aldington.  No document or documents were

      produced which on their face could destroy Lord Aldington's

      credibility.  If the jury had disbelieved Lord Aldington, there

      would have been an end of his case.  The fact that the jury found

      in his favour and awarded him the damages that they did

      demonstrates that upon the vital issues of the case they must

      have accepted the plaintiff's evidence.  Was that a course which

      was open to the jury? In my judgment, it plainly was.

      The reality of this case is that Count Tolstoy at all stages

      wanted the verdict of a jury.  Lord Aldington, because of the

      costs involved, wanted trial by judge alone.  Count Tolstoy's

      preference prevailed.  He has fought this case and he has lost.

      He has lost because it was the jury that found against him.  They

      saw and heard the witnesses.  They were not misled by the judge.

      The verdict was the jury's verdict and Count Tolstoy should now

      accept it.  If he cannot accept it he should at least acknowledge

      that it was a verdict the jury was entitled to return.

      There is not in my judgment the remotest chance of the Court of

      Appeal interfering with the jury's finding in the plaintiff's

      favour and directing a retrial of that issue, either on the basis

      that the verdict cannot stand or on the basis of fresh evidence

      which Count Tolstoy seeks to introduce. ...

      Finally, upon the issue of damages, Count Tolstoy had been

      offered in an open letter the substitution of £300,000 for the

      one and a half million pounds awarded by the jury.  The libel

      remains as serious a libel as it is possible to imagine.  Any

      appeal upon quantum alone would be no more than an academic

      exercise.  Count Tolstoy wishes to re-open the whole case.  In

      my judgment, the defendant being impecunious, justice demands

      that he should provide security for the plaintiff's costs of any

      appeal."

25.   Lord Justice Beldam, also agreeing, considered that:

      "It would be difficult to conjecture an allegation more

      calculated to bring the respondent into the hatred and contempt

      of his fellow men and the evidence showed that it was

      deliberately circulated with the aim of encouraging the

      respondent to sue him, thus giving the appellant the opportunity

      to challenge in public the respondent's conduct 45 years ago. ...

      That this archaeology of the archives failed to convince the jury

      of the truth of the very grave charges levelled against the

      respondent was amply demonstrated by their award to the

      respondent of the unprecedented and enormous sum of damages of

      £1.5 million.  It was as resounding a demonstration of public

      reproof of the appellant's conduct as could possibly be

      imagined."

      He also stated:

      "It is not for this court to grant a retrial after the verdict

      of a jury, even if it thought that a reasonable jury ought to

      have found differently.  The test which, on the hearing of the

      appeal, this court would have to apply is whether the finding of

      the jury is absolutely unreasonable that it can be said that they

      have not performed the judicial duty cast upon them.  Again I

      have listened to the skilful development of the facts and

      evidence by the appellant. He has failed to satisfy me that he

      has any reasonable chance of success in this appeal.  Even if he

      persuaded the court to grant a retrial on the issue of the amount

      of the damages, I would regard as negligible the prospect of any

      jury, doing their judicial duty, awarding the respondent [Lord

      Aldington] less then the sum which he has in reality already

      offered to accept in compromise of this appeal."

26.   The Court ordered the applicant to provide security for Lord

Aldington's costs in respect of the appeal in the sum of £124,900.  The

Court further ordered that in the absence of such payment the

applicant's appeal stand dismissed.  A request by the applicant for

more than 14 days to attempt to raise the money was refused.  The

applicant was ordered to pay Lord Aldington's costs in the security for

costs proceedings.  The Court's judgment runs to 23 pages.

      The applicant did not furnish the required security and his

appeal was dismissed on 3 August 1990.

B.    Relevant domestic law and practice

27.   Halsbury's Laws of England describes the domestic law on libel

and slander as follows:

      "In English law ... every man is entitled to his good name and

      to the esteem in which he is held by others, and has a right to

      claim that his reputation shall not be disparaged by defamatory

      statements made about him to a third person or persons without

      lawful justification or excuse.

      If a defamatory statement is made in writing or printing or some

      other permanent form the tort of libel is committed and the law

      presumes damage.

      ...

      The actions of libel and slander are ... private legal remedies,

      the object of which is to vindicate the plaintiff's reputation

      and to make reparation for the private injury done by the

      wrongful publication to a third person or persons of defamatory

      statements concerning the plaintiff.  The defendant in these

      actions may prove the truth of the defamatory matter and thus

      show that the plaintiff has received no injury.  For although

      there may be damage accruing from the publication, yet, if the

      facts published are true, the law gives no remedy by action.

      ...

      A defamatory statement is a statement which tends to lower a

      person in the estimation of right thinking members of society

      generally or to cause him to be shunned or avoided or to expose

      him to hatred, contempt or ridicule, or to convey an imputation

      on him disparaging or injurious to him in his office, profession,

      calling, trade or business.

      ...

      Actionable libel.  A libel for which an action will lie is a

      defamatory statement made or conveyed by written or printed words

      or in some other permanent form, published of and concerning the

      plaintiff to a person other than the plaintiff."

      [from: Halsbury's Laws of England, Fourth Edition, Vol. 28,

paras. 1 and 10].

28.   Order 59 Rule 11 of the Rules of the Supreme Court provided at

the relevant time

      "(1) On the hearing of any appeal the Court of Appeal may, if it

      thinks fit, make any such order as could be made in pursuance of

      an application for a new trial or to set aside a verdict, finding

      or judgment of the court below.

      (2)  The Court of Appeal shall not be bound to order a new trial

      on the ground of misdirection, or of the improper admission or

      rejection of evidence, or because the verdict of the jury was not

      taken upon a question which the judge at the trial was not asked

      to leave to them, unless in the opinion of the Court of Appeal

      some substantial wrong or miscarriage has been thereby

      occasioned.

      (3)  A new trial may be ordered on any question without

      interfering with the finding or decision on any other question;

      and if it appears to the Court of Appeal that any such wrong or

      miscarriage as is mentioned in paragraph (2) affects part only

      of the matter in controversy, or one or some only of the parties,

      the Court may order a new trial as to that party only, or as to

      that party or those parties only, and give final judgment as to

      the remainder.

      (4)  In any case where the Court of Appeal has power to order a

      new trial on the ground that damages awarded by a jury are

      excessive or inadequate, the Court may, in lieu of ordering a new

      trial -

           (a)  with the consent of all parties concerned, substitute

           for the sum awarded by the jury such sum as appears to the

           Court to be proper;

           (b) with the consent of the party entitled to receive or

           liable to pay the damages, as the case may be, reduce or

           increase the sum awarded by the jury by such amount as

           appears to the Court to be proper in respect of any

           distinct head of damages erroneously included in or

           excluded from the sum so awarded;

      but except as aforesaid the Court of Appeal shall not have power

      to reduce or increase the damages awarded by a jury.

      ..."

29.   With effect from 1 February 1991 the Court of Appeal has power

in certain circumstances to substitute its own assessment for that of

the jury by virtue of Section 8 of the Courts and Legal Services Act

1990, which provides as follows:

           "(1)  In this section 'case' means any case where the Court

      of Appeal has power to order a new trial on the ground that

      damages awarded by a jury are excessive or inadequate.

           (2)  Rules of court may provide for the Court of Appeal, in

      such classes of case as may be specified in the rules, to have

      power, in place of ordering a new trial, to substitute for the

      sum awarded by the jury such sum as appears to the court to be

      proper.

           (3)  This section is not to be read as prejudicing in any

      way any other power to make rules of court."

30.   In consequence a new Rule 11 para. 4 was instituted which

provides as follows:

           "(4)  In any case where the Court of Appeal has power to

      order a new trial on the ground that damages awarded by a jury

      are excessive or inadequate, the court may, instead of ordering

      a new trial, substitute for the sum awarded by the jury such sum

      as appears to the court to be proper, but except as aforesaid the

      Court of Appeal shall not have power to reduce or increase the

      damages awarded by a jury."

      In the case of Rantzen v. Mirror Group Newspapers [Times Law

Reports 6 April 1993] the Court of Appeal exercised its powers under

Section 8 (2) of the Courts and Legal Services Act 1991 and under new

Order 59, Rule 11 (4).  It held, inter alia, as follows:

      "It is always to be remembered that the Convention is not part

      of English domestic law and therefore the courts have no power

      to enforce Convention rights directly.  Nevertheless, as

      Lord Bridge explained in Brind [1991] 1 AC 696 at 747 the United

      Kingdom is obliged 'to secure to everyone within its jurisdiction

      the rights which the Convention defines including both the right

      to freedom of expression under Article 10 and the right under

      Article 13 to 'an effective remedy before a national authority'

      for any violation of the other rights secured by the Convention.

      It is therefore clear that the Convention may be deployed for the

      purpose of the resolution of an ambiguity in English primary or

      subordinate legislation (see Brind at 760 per Lord Ackner), and

      that where there is an ambiguity the courts will presume that

      Parliament intended to legislate in conformity with the

      Convention, not in conflict with it (see Brind at 747 per

      Lord Bridge).  It is also clear that Article 10 may be used when

      the court is contemplating how a discretion is to be exercised

      ...

      Where freedom of expression is at stake, however, recent

      authorities lend support for the proposition that Article 10 has

      a wider role and can properly be regarded as an articulation of

      some of the principles underlying the common law.  In Attorney

      General v. Guardian Newspapers (No. 2) [1990] 1 AC 109 Lord Goff

      at 283 referred to the requirement that in order to restrain the

      disclosure of Government secrets it had to be shown that it was

      in the public interest that they should not be published.  He

      continued:

           '... I can see no inconsistency between English law on this

           subject and Article 10 of the European Convention on Human

           Rights.  This is scarcely surprising, since we may pride

           ourselves on the fact that freedom of speech has existed in

           this country perhaps as long as, if not longer than, it has

           existed in any other country in the world.

           ...'

      How then should the Court of Appeal interpret its power to order

      a new trial on the ground that the damages awarded by the jury

      were excessive?  How is the word 'excessive' in Section 8 (1) of

      the 1990 Act to be interpreted?

      After careful consideration we have come to the conclusion that

      we must interpret our power so as to give proper weight to the

      guidance given by the House of Lords and by the Court in

      Strasbourg.  In particular we should take account of the

      following passage in Lord Goff's speech in Attorney General v.

      Guardian Newspapers (No. 2) (supra) at 283:

           'The exercise of the right to freedom of expression under

           Article 10 may be subject to restrictions (as are

           prescribed by law and are necessary in a democratic

           society) in relation to certain prescribed matters which

           include 'the interests of national security' and

           'preventing the disclosure of information received in

           confidence'.  It is established in the jurisprudence of the

           European Court of Human Rights that the word 'necessary' in

           this context implies the existence of a pressing social

           need, and that interference with freedom of expression

           should be no more than is proportionate to the legitimate

           aim pursued.  I have no reason to believe that English law,

           as applied in the courts, leads to any different

           conclusion.'

      If one applies these words it seems to us that the grant of an

      almost limitless discretion to a jury fails to provide a

      satisfactory measurement for deciding what is 'necessary in a

      democratic society' or 'justified by a pressing social need'.

      We consider therefore that the common law if properly understood

      requires the courts to subject large awards of damages to a more

      searching scrutiny than has been customary in the past.  It

      follows that what has been regarded as the barrier against

      intervention should be lowered.  The question becomes:  Could a

      reasonable jury have thought that this award was necessary to

      compensate the plaintiff and to re-establish his reputation?

      ...

      A very substantial award was clearly justified for the reasons

      which Mr. Hartley explained. ... Judged by any objective

      standards or reasonable compensation or necessity or

      proportionality the award of £250,000 was excessive.

      We therefore propose to exercise our powers under Section 8(2)

      of the 1990 Act and Order 59 r. 11(4) and substitute the sum of

      £110,000."

III.  OPINION OF THE COMMISSION

A.    Complaints declared admissible

31.   The Commission has declared admissible the applicant's complaints

that the requirement that he find security for the costs of his appeal

denied him access to court, contrary to Article 6 (Art. 6) of the

Convention, and that the award of £1,500,000 and the injunction against

him were such as to constitute an interference with his freedom of

expression which was neither prescribed by law nor necessary in a

democratic society.

B.    Points at issue

32.   The issues to be determined are:

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention, and

- whether there has been a violation of Article 10 (Art. 10) of the

Convention.

C.    As to Article 6 para. 1 (Art. 6-1) of the Convention

      1.  Applicability

33.   Article 6 para. 1 (Art. 6-1), first sentence, provides as

follows:

      "In the determination of his civil rights and obligations or of

      any criminal charge against him, everyone is entitled to a fair

      and public hearing within a reasonable time by an independent and

      impartial tribunal established by law."

34.   The Commission recalls that the right to enjoy a good reputation

is a civil right within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention (cf. Al Fayed and Others v. the United Kingdom, Comm.

Rep. 7.4.93, para. 69, with further references, [pending before the

European Court of Human Rights)].  The applicability of Article 6

(Art. 6) to the proceedings at issue has not been contested.  The

Commission finds that the proceedings in the present case determined

the applicant's civil obligations within the meaning of Article 6

(Art. 6) of the Convention.

      2.  Compliance with Article 6 para. 1 (Art. 6-1)

35.   The Commission has already declared inadmissible the applicant's

complaints of unfairness of the proceedings brought against him (see

Appendix II to the present Report).  The sole question left to be

determined is whether the applicant's access to the Court of Appeal was

denied by the requirement that he give security for costs before being

allowed to proceed with his appeal against the first instance decision

of 30 November 1989.

36.   The applicant considers that the requirement of security for

costs denied him the access to court to which he is entitled under

Article 6 para. 1 (Art. 6-1) of the Convention.

37.   The Government submit that the requirement to find security was

reasonable in that the applicant's appeal was found to have little or

no prospects of success, and that if the appeal had been allowed to

continue and had failed, Lord Aldington would not have been able to

recover the costs which would have been ordered in his favour as the

successful party.

38.    The Commission here recalls that where an appeal is provided,

the way in which Article 6 (Art. 6) is to be applied must depend on the

special features of such proceedings (cf, in the context of a criminal

case, Eur. Court H.R., Delcourt judgment of 17 January 1970, Series A

no. 11, pp. 14,15, paras. 25 and 26).  In particular, the Commission

must take account of the entirety of the proceedings in the legal order

and the role of the appellate court therein (Eur. Court H.R., Helmers

judgment of 29 October 1991, Series A no. 212-A, p. 15, para. 31).  In

general in considering limitations on access to court, the Commission

must examine whether the limitation on access impaired the essence of

that right, pursued a legitimate aim and bore a reasonable relationship

of proportionality to that aim in the circumstances (see above-

mentioned Al Fayed and Others, Comm. Rep. 7.4.93, paras. 71 and 72 with

further references)

39.   The present case relates to a requirement that an appellant

should find security for the opponent's costs in the event of the

opponent being successful on appeal and being awarded costs.  There is

no question of the State imposing a financial requirement, by way of

court costs, on the individual purely on grounds of impecuniosity.

Rather, the domestic authorities had to balance the applicant's

prospects of success on appeal against the chances of his being able

to find costs to satisfy an appeal judgment against him.  The

Commission finds that the aim of the restriction on access to court in

the present case was to safeguard the interests of the other party to

the proceedings.  Moreover, the order related only to the costs before

the Court of Appeal, and not to the other costs incurred in the

proceedings.  Such an aim is compatible with the requirements of

Article 6 (Art. 6) of the Convention.

40.   As to the proportionality of the actual limitation on access to

that aim, the Commission first notes that the limitation was not

imposed without due consideration.  The Registrar of the Court of

Appeal initially considered that the applicant should not be required

to give security.  He heard the parties and gave a 22-page reserved

judgment on 18 May 1990.  He concluded that there was just enough

chance of the applicant succeeding on appeal for him not to order

security.  He also considered in some detail the likely extent of

Lord Aldington's costs on appeal, and reduced the estimate from

£188,000 to £124,900.

41.    The Court of Appeal then heard further argument for the parties

for six days before concluding that security should be required.  The

Court of Appeal found that there was no merit in the procedural

complaints, that its own powers of ordering a retrial were restricted,

that an appeal on quantum was not what the applicant wished and that

in any event it was academic because of the open letter from

Lord Aldington offering to accept a lower sum of damages.  The Court

of Appeal's judgment of 19 July 1990 on the interlocutory issue runs

to 23 pages.

42.     It is not for the Commission to re-decide the issues before the

Court of Appeal.  It is, however, clear that very extensive

consideration was given to the question of whether to order security,

and indeed the merits of the appeal were canvassed in some depth.

Moreover, whilst a requirement to find security for costs in the amount

at issue in the present case could well raise different issues under

Article 6 (Art. 6) of the Convention if an individual was thereby

prevented from having a hearing of his case at all, the Commission must

bear in mind in the present case that although the applicant's access

to the Court of Appeal was ultimately effectively barred, the issues

before the courts were heard at three instances: at first instance, and

then again (in the security proceedings) before the Registrar of the

Court of Appeal and before the Court of Appeal itself. Before the full

Court of Appeal the parties were present in court to put their

arguments for six days.

43.   In the light of these considerations, the Commission is of the

opinion that the requirement that the applicant find security for costs

before being allowed to pursue his appeal did not impair the essence

of his right of access to court, or transgress the principle of

proportionality.

Conclusion

44.   The Commission concludes by ten votes to five that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

D.    As to Article 10 (Art. 10) of the Convention

45.   The applicant considers that the order of damages and costs and

the injunction against him violated his right to freedom of expression

under Article 10 (Art. 10) of the Convention.  Article 10 (Art. 10)

provides, so far as relevant, as follows:

      "1.  Everyone has the right to freedom of expression.  This

      right shall include freedom to hold opinions and to receive and

      impart information and ideas without interference by public

      authority and regardless of frontiers.  ...

      2.   The exercise of these freedoms, since it carries with it

      duties and responsibilities, may be subject to such formalities,

      conditions, restrictions or penalties as are prescribed by law

      and are necessary in a democratic society, ... for the protection

      of the reputation or rights of others, ..."

46.   The applicant considers that the fact that jury awards at the

time in question were effectively subject to neither guidelines nor

review necessarily meant that the award against him was both a

disproportionate interference with the Article 10 (Art. 10) rights, and

that it was not "prescribed by law", as required by Article 10

(Art. 10).  He points out that the next largest awards of libel damages

until 1992 were of £600,000 (set aside by the Court of Appeal), and

£500,000 and that there were three awards in the £400,000 - £499,000

band.  He also considers that the injunction imposed on him was too

broad to be compatible with Article 10 (Art. 10).

47.   The Government submit that the applicant was found by a jury to

have uttered a defamation which was as serious as it was possible to

conjecture, that the aim of damages in defamation cases is to put, so

far as possible, the victim in the position he would have been in had

the violation not occurred, that the applicant had deliberately had the

pamphlet distributed amongst a group of individuals in relation to whom

Lord Aldington had a special relationship, and that the applicant

voluntarily joined the action.  With regard to the costs, the

Government submit that it is a normal and proper incident of civil

proceedings for the unsuccessful party to pay the adversary's costs.

In connection with the injunction against the applicant, the Government

consider that a final injunction, as in the present case, need not be

as closely scrutinised as an interlocutory injunction, that it was

right to prevent the applicant from repeating the civil wrong he had

been found to have committed, and that the applicant had said that he

would not be able to pay the award of damages, so that the risk of

repetition was greater.  The Government also point out that it remains

open to the applicant to apply for a variation of the order, and that

he has not done so.

48.   The European Court of Human Rights has recently summarised the

major principles of its case-law on the "necessity" test in Article 10

(Art. 10) of the Convention as follows:

      "(a) Freedom of expression constitutes one of the essential

      foundations of a democratic society;  subject to paragraph 2 of

      Article 10 (Art. 10-2), it is applicable not only to

      'information' or 'ideas' that are favourably received or regarded

      as inoffensive or as a matter of indifference, but also to those

      that offend, shock or disturb.  Freedom of expression, as

      enshrined in Article 10 (Art. 10), is subject to a number of

      exceptions which, however, must be narrowly interpreted and the

      necessity for any restrictions must be convincingly established.

      (b)  These principles are of particular importance as far as the

      press is concerned. ...

      (c) The adjective 'necessary', within the meaning of Article 10

      para. 2 (Art. 10-2), implies the existence of a 'pressing social

      need'.  The Contracting States have a certain margin of

      appreciation in assessing whether such a need exists, but it goes

      hand in hand with a European supervision, embracing both the law

      and the decisions applying it, even those given by independent

      courts.  The Court is therefore empowered to give the final

      ruling on whether a 'restriction' is reconcilable with freedom

      of expression as protected by Article 10 (Art. 10).

      (d)  The Court's task, in exercising its supervisory

      jurisdiction, is not to take the place of the competent national

      authorities but rather to review under Article 10 (Art. 10) the

      decisions they delivered pursuant to their power of appreciation.

      This does not mean that the supervision is limited to

      ascertaining whether the respondent State exercised its

      discretion reasonably, carefully and in good faith; what the

      Court has to do is to look at the interference complained of in

      the light of the case as a whole and determine whether it was

      'proportionate to the legitimate aim pursued' and whether the

      reasons adduced by the national authorities to justify it are

      'relevant and sufficient'."

      (Eur. Court H.R., Sunday Times (No. 2) judgment of

      26 November 1991, Series A no. 217, p. 29, para. 50).

49.   The Commission notes that the present case involves not the

imposition by the State of a penalty for breach of criminal law, but

a decision by the State, represented by its courts, in a dispute

between two individuals.  The results of the dispute are therefore the

State's conclusions in the balancing exercise, inherent throughout the

Convention but particularly in Article 10 (Art. 10), which must be

undertaken in setting the rights of one individual or group of

individuals against those of others.  It is not, however, contested,

and the Commission finds, that the findings and orders made against the

applicant constitute an interference with his freedom of expression

under Article 10 (Art. 10) of the Convention.

50.   The Commission next notes that the Court of Appeal underlined the

narrowness of its ability to remit a case to the court of first

instance or to substitute its own opinion of what would be an

appropriate figure of damages in a particular case.  Thus

Sir Stephen Brown considered (cf. para. 23 above):

      "The quantum of damage is a very large sum.  However, there is

      no doubt that the learned judge gave an impeccable direction on

      damages.  Count Tolstoy has argued that the judge invited the

      jury to give excessive damages.  A correct reading of the

      transcript shows that he did just the opposite.  There is no

      merit in that submission. The award was entirely within the

      jury's discretion and they received a very full direction about

      it.  I have no doubt that it was meant to mark their view of the

      enormity of the gross libel which had been published and

      persisted in."

      Lord Justice Russell stated (cf. para. 24 above):

      "The court will be very slow to interfere with the jury's verdict

      unless there has been some material irregularity in the

      proceedings which renders the verdict unsafe or unsatisfactory,

      or it can properly be said that the verdict is perverse.  Much

      the same considerations must apply in the instant case."

      Lord Justice Beldam found that (cf. para. 25 above):

      "It is not for this court to grant a retrial after the verdict

      of a jury, even if it thought that a reasonable jury ought to

      have found differently.  The test which, on the hearing of the

      appeal, this court would have to apply is whether the finding of

      the jury is absolutely unreasonable that it can be said that they

      have not performed the judicial duty cast upon them.  Again I

      have listened to the skilful development of the facts and

      evidence by the appellant. He has failed to satisfy me that he

      has any reasonable chance of success in this appeal.  Even if he

      persuaded the court to grant a retrial on the issue of the amount

      of the damages, I would regard as negligible the prospect of any

      jury, doing their judicial duty, awarding the respondent [Lord

      Aldington] less than the sum which he has in reality already

      offered to accept in compromise of this appeal."

51.   The position in domestic law has changed substantially since the

events in the present case occurred.  In particular, Section 8 of the

Courts and Legal Services Act 1990 has given rise to the new

paragraph 4 of Order 59, Rule 11 of the Rules of the Supreme Court

(para. 30 above).  The new provision in terms applies only to cases

where the Court of Appeal has power to order a new trial, and it does

not purport to affect that power.  However, it is clear from the

judgment of the Court of Appeal in Rantzen v. Mirror Group Newspapers

[TLR 6 April 1993] that the common law power to order a new trial has

been reconsidered in the light of the amendment brought about by

Section 8, in particular in the passage, also set out above (at

para. 30), which reads as follows:

      "...it seems to us that the grant of an almost limitless

      discretion to a jury fails to provide a satisfactory measurement

      for deciding what is 'necessary in a democratic society' or

      'justified by a pressing social need'.  We consider therefore

      that the common law if properly understood requires the courts

      to subject large awards of damages to a more searching scrutiny

      than has been customary in the past.  It follows that what has

      been regarded as the barrier against intervention should be

      lowered.  The question becomes:  Could a reasonable jury have

      thought that this award was necessary to compensate the plaintiff

      and to re-establish his reputation?"

52.   It is apparent to the Commission that in jury cases in the United

Kingdom at the relevant time, the judge could give only general

guidance as to the criteria to be used (for example, relating damages

to the cost of a house) in assessing damages, but could not make any

reference to other cases or specific sums of money.  Moreover, the

findings of the jury give no indication of the reasons for assessing

damages at one level rather than at another.  It appears from the

statements of law in the courts in the present case and from the

subsequent development outlined above, that the Court of Appeal was

unable in any real way to review or to control the size of the jury

awards in the present case.

53.   The Commission notes that in the present case the award of

£1,500,000 was three times the size of the next largest award ever

made.  The Commission accepts that the allegations made against

Lord Aldington (and found by the domestic courts to be unjustified)

were very serious.  However, the Commission cannot accept that an award

of £1,500,000 to vindicate pure damage to reputation, as distinct from

compensating actual financial loss, can be proportionate to the

legitimate aim pursued.

54.   In the light of these considerations, the Commission finds that

there is no need to consider whether the interference was sufficiently

foreseeable to be "prescribed by law", or whether the injunction

against the applicant was in violation of Article 10 (Art. 10) of the

Convention.

Conclusion

55.   The Commission concludes unanimously that there has been a

violation of Article 10 (Art. 10) of the Convention.

E.    Recapitulation

56.   The Commission concludes by ten votes to five that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention

(para. 44).

57.   The Commission concludes unanimously that there has been a

violation of Article 10 (Art. 10) of the Convention (para. 55).

Secretary to the Commission             President of the Commission

       (H.C. KRÜGER)                           (C.A. NØRGAARD)

                                                       (Or. English )

        DISSENTING OPINION of MM. Weitzel, Busuttil, Gözübüyük,

                       Reffi and Cabral Barreto

      We are unable to agree with the Commission's conclusion

concerning Article 6 of the Convention (para. 44 of the Report).

      Article 6 guarantees the right of access to court, and that

includes access to appeal courts, although the criteria will not be

identical to the criteria for access to courts of first instance.

Limitations on access to court may be permitted provided that they

pursue a legititimate aim and are proportionate to the pursuit of that

aim.

      In this case the aim of the restriction was not the effective

administration of justice as such, but a desire to avoid the risk to

Lord Aldington that he would not be able to recoup his costs if Count

Tolstoy's appeal was unsuccessful.

      We accept that it will often be appropriate for a successful

litigant to be awarded his costs involved in pursuing or defending a

claim.  However, the sum required by way of security in the present

case (£124,900) was so enormous that, even if it may be permissible to

require a litigant to compensate his opponent for his reasonably

incurred costs after the event, it is not for the State to put such a

substantial barrier in the way of an appeal before the event.

      Moreover, we note that Count Tolstoy was refused an extension

of the extremely short period allotted for finding security.

      We find that the denial of access to the Court of Appeal in the

present case bore no relationship of proportionality to the aim which

was being pursued.

                              APPENDIX I

                        HISTORY OF PROCEEDINGS

Date                             Item

_________________________________________________________________

18 December 1990                 Introduction of the application

                                 Registration of the application

Examination of Admissibility

20 February 1992                 Commission's partial decision and

                                 decision to invite the Government to

                                 submit observations on the

                                 admissibility and merits of the

                                 application

2 June 1992                      Government's observations

6 October 1992                   Applicant's observations in reply

8 February 1993                  Commission's deliberations and

                                 decision to hold an oral hearing

12 May 1993                      Oral hearing on admissibility and

                                 merits, Commission's deliberations

                                 and decision to declare remainder of

                                 the application admissible

Examination of the merits

17 May 1993                      Decision on admissibility transmitted

                                 to the parties

16 October 1993                  Commission's consideration of the

                                 state of proceedings

30 November 1993                 Commission's deliberations on the

                                 merits and final votes.

6 December 1993                  Adoption of the Report