SECOND SECTION

CASE OF MAMÈ RE v. FRANCE

(Application no. 12697/ 03 )

JUDGMENT

STRASBOURG

7 November 2006

FINAL

07/02/2007

In the case of Mamère v. France ,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

András Baka , President , Jean-Paul Costa , Rıza Türmen , Mindia Ugrekhelidze , Elisabet Fura -Sandström , Danutė Jočienė , Dragoljub Popović , judges ,

and Stanley Naismith , Deputy Section Registrar ,

Having deliberated in private on 17 October 2006,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 12697/0 3 ) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Noël Mamère (“the applicant”), on 11 April 2003.

2 . The applicant was represented by Mrs C . Waquet , of the Conseil d ’ Etat and Court of Cassation Bar , and Mr A . Comte, a lawyer practising in Paris . The French Government (“the Government”) were represented by their Agent, Mr s E . Belliard , Director of Legal Affairs at the Ministry of Foreign Affairs.

3 . On 25 August 2005 the Vice-President of the Second Section decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

A. The circumstances of the case

4 . The applicant was born in 1948 and lives in Paris . A m emb er and leader of the “g reen ” political party Les Verts , and former regional councillor and member of the European Parl ia ment , since 1987 he has been mayor of Bègles and V ice- Pre sident of the Urban C ommun ity of Bordeaux and , since 1997 , m ember of p arliament for La Gironde. He has also worked as a journalist – from 1977 to 1992, for example – for the S tate tele vision channel Antenne 2 .

5 . I n O ctob er 1999 the applicant took part in the recording of an infotainment programme for television called Tout le monde en parle ( “ Everyone ’ s talking about it ” ) , presented by Thierry Ardisson, which was aired on the State tele vision channel France 2 during the night of 23 to 24 O ctob er 1999. During the programme Michel Polac , another guest personality , mentioned the Chernobyl nuclear accident of 26 April 1986 and spoke of the emotion he had felt on reading a book dedicated to the victims of the disaster . The applicant replied as follows (extra c t from the 3 O ctob er 2001 judgment of the Paris Court of Appeal ) :

“Only a few weeks ago some mushrooms imported into France were found to contain caesium and that is the result of C hernobyl . I was presenting the 1 o ’ clock news on the day of the C hernobyl disaster in 1986 ; there was a sinist er character at the SCPRI called Mr Pellerin who kept on telling us that France was so strong – the Asterix complex – that the Chernobyl cloud had not crossed our borders . ”

6 . At the time of the Chernobyl disaster Mr Pellerin , a radiologi st and qualified senior biophysics teacher, was head of the Central Service for Protection against Ionising Radiation ( Service c entral de p rotection contre les r ayons i onis ants – “ the SCPRI ” ) . Under the dual authority of the Health and Labour Minist ries , one of the SCPRI ’ s tasks was to monitor contamination levels in France and alert the above minist rie s in the event of a problem ; it was replaced in 1994 by the Office for Protection against Ionising Radiation ( Office de p rotection contre les r ayonnements i onisants – “the OPRI ” ).

Mr Pellerin was placed under investigation on 31 May 2006 for “aggravated decep tion” by the first investigating judge at the Paris tribunal de grande instance , as part of an investigation opened after persons suffering from thyroid cancer, the Commission for Independent Research and Information on Radioactivity (“the CRIIRAD ”) and the French A ssociation of T hyroid D isease S ufferers ( “ the AFMT ” ) lodged a complaint in March 2001 against a person or persons unknown, together with an application to join the proceedings as civil parties claiming damages, for failure to protect the population against radioactive fallout from the C hernobyl accident , alleging in particular that official authorities had lied and played down the pollution of the air, soil and food stuffs .

7 . By summonses served on 18 and 19 January 2000 , M r Pellerin brought proceedings directly against the applicant in the Paris Criminal Court for public defamation of a civil servant , a punishable offence under sections 29 and 31 of the Freedom of the Press Act of 29 July 1881 . He also brought proceedings against the television channel France 2 and its direct o r of publication, Mr Marc Tessier.

In a judg ment of 11 O ctob er 2000 , the court found Mr Tessier and the applicant guilty ( as principal and accessory respective ly ), sentenced them each to pay a 10, 000 French franc s ( FRF ) fine and , jointly and severally , to pay FRF 50 , 000 in damages , d e clar ed the France 2 television company civilly liable and ordered the publication in a newspaper , at the defendants ’ cost , of the following announcement :

“In a ju dg ment delivered on 11 October by the Paris Crimi nal Court (Press Division), Mr Marc Tessier, direct o r of p ublication of the national television company France 2, and Noël Mamère were sentenced to fines and to pay damages to Mr Pierre Pellerin, for having committed against him the offence of de famation of a civil servant , by making accusations against him on the Tout le monde en parle television programme aired on 23 O ctob er 1999 .”

8 . T he applicant appealed , but the Paris Court of Appeal upheld the ju dg ment in respect of the guilty verdict , the sentences and the civil claim s, in a judgment of 3 Oc tob er 2001 worded as follows :

“ ...

Defamation

M r Mamère accuses Mr Pellerin of repeatedly (“kept on”) claim ing (“telling us”) at the time of the C hernobyl disaster that the radioactive cloud would not cross France ’ s borders . He further specifies that the civil part y worked for the SCPRI ( Central Service for Protection against Ionising Radiation ) , thereby reminding us that because of his expertise and his role he could not have been unaware of what was actually happening and what is now common knowledge .

Mr Mamère thus accuses Mr Pellerin of lying to journalist s , and therefore to the general public, concerning the passage of the radioacti ve cloud over France , when the file clearly shows that Mr Pellerin never said any such thing , and that he had actually said that the level of radioactivity had increased in France – which obviously meant that the cloud had passed over the country – but that the increase would be without any harmful effect on public health , a claim which has yet to be disproved with any certainty .

To accuse Mr Pellerin of having knowingly supplied, in his capacity as a specialist on radioactivity issues, erroneous or even untrue information about such a serious problem as the Chernobyl disaster, which was of potential consequence for the health of the French population , is undeniably damaging to his hon o ur and his reputation and is therefore de famato ry . The fact that Mr Mamère ’ s comments , according to his counsel , were uttered in a humor ous tone, as a quip , makes them no less de famato ry and to acknowledge that is not a violation of A r ticle 10 of the Convention ...

Good faith

As the events criticised occurred so long ago , t he defendant has adduced no proof that his defamatory allegations are true, but claims that he acted in good faith .

Mod e ration of tone

I n us ing such terms as “ kept on telling us ”, Mr Mamère insist s strongly and in no uncertain terms that M r Pellerin deliberately and repeatedly lied , and that he constantly and knowingly distorted the truth .

He also describes Mr Pellerin as a “ sinist er” character , which is not a neutral expression, particularly when used in connection with something like the C hernobyl disaster . He also says the civil party suffers from the “Asterix complex ”, thereby subjecting him to derision and undermining his credibility .

The insiste nce shown by M r Mamère, the p e rempto ry nature of his comments and the pejorative characteristics he attributes to the civil party reveal a lack of mod e ration in his remarks .

As one of the conditions of good faith is lacking , the defendant cannot be considered to have acted in good faith and there is no need to examine the other aspects of good faith .

He must therefore be convicted .

... ”

9 . The Criminal Division of the Court of Cassation dismissed an appeal on points of law lodged by the applicant, Mr Tessier and France 2 based, inter alia , on an alleged violation of A rticle 10 of the Convention . The judgment, delivered on 22 O ctob er 2002, reads as follows :

“ ...

T he terms of the impugned judgment and the examination of the case file place the Cour t of C assation in a position to affirm that the Court of Appeal , for reasons which are neither insufficient nor contradictory and which address the essential grounds raised in the pleadings submitted to it , correctly assessed the meaning and scope of the remarks impugned in the summons and rightly denied the defendants the benefit of good faith , after finding, without contravening the provisions of A rticle 10 of the Convention ... that the said remarks a mounted to defamation .

F or the remainder , the Court of Appeal correctly considered that the direct o r of publication, whose duty it is to supervise and v erify every pre - recorded programme the channel broadcasts , is answerable in law for any remarks made in the cours e of the programme w hich are found to be defamatory.

... .”

B. Documents produ ced by the applicant

10 . The applicant adduce d a cop y of a Minist ry of Agriculture press release dated 6 May 1986 , which reads as follows :

“French soil is far enough away to have been completely spared by the radioactive fallout from the accident at the Chernobyl power station. At no time has the recorded increase in radioactivit y levels been a threat to publi c health .

The Ministry of Agriculture has reading s taken by the Central Service for Protection against Ionising Radiation (SCPRI) , which answers to the Ministry of Social Affair s a nd Employment . According to the SCPRI the maximum airborne radioactivit y levels have always remained entirely negligi ble.

France has asked the European Economi c Commun ity to put in place a uniform monitoring procedure, without delay, which all countries could apply in respect of non-member countries , based on the recomm e ndations of the International Commission on Radiological Protection . Such me a sures should on no account hinder intracommun ity exchanges . Furthermore, we have asked all the member States to inform their partners of any measurements taken and their results.

Special precaution ary measure s have been put in place in certain member States in respect of French produ c ts . This is quite unnecessary . The Minist ry of A griculture will make every effort to see to it that the free movement of all French products towards these countries is restored as soon as possible.”

The applicant also adduced an extract of the transcript of the statement made by the Minist er of I ndustry to the Se nat e on 23 May 1986; it reveals in particular that between the Chernobyl accident and that date the SCPRI issued at least twenty-five statements about the accident .

11 . The applicant further adduced a document , dated 23 N ovemb er 2005 , entitled “ R e cap itulation of the mission completed by the two experts in accordance with the orders of 6 February 2002 and 16 July 2003 of [ the ] ... first investigating judge at the Paris tribunal de grande instance ” . It is the opinion of two judicia l experts appointed by the judge in charge of the investigation mention ed in paragraph 6 above to analyse , among other things, the sealed samples collected by the SCPRI at the time of the Chernobyl accident and de termine what the SCPRI knew . The “general conclusions ” of the opinion read as follows :

“At this stage in our investigation it is clear that the SCPRI was very promptly supplied with all the scientific data in the possession of its network and the information it requested urgently from various bodies concerning radioactive contamination in mainland France and Corsica, for most of the radioactive isotopes , including i od ine 131, i od ine 132, t ellur ium 132, c a e sium 134 and c a e sium 137. The information was interpr e table and location-specific .

The SCPRI was also aware that the results for the i odine isotopes were obtained using filter s which captured only a small percentage, which meant that the readings for iodine 131 and 132 were well below the real values .

The release of this information by the SCPRI to the decision-making aut horitie s and the public was neither compl e te nor pre cise and certain val ues were concealed .

The use of diffe rent u nits , some of which were no longer in current use , made compar isons or evaluations very difficult, even for specialists, and therefore even more so for the decision-making authorities and the public .

The publication of mean values per département , r e gion or part of the country helped to mask the reality of contamination concentrated in certain localities , later referred to as “ le opard spots” , linked to weather conditions – particularly rainfall – and the landscape .

In this manner the p re sence , especially in the first fortnight after the clouds passed , of quantit ies of radioactive isotopes which were danger ous , particul arly for fœtus es and for young children , was hidden from the decision-making authorities and the public .

Telex messages contained i n the sealed evidence also show how , in France and even in the international scientifi c commun ity , parti al or mean values were imposed ( some mean values being based on single readings ), which led to the publication of inaccurate maps .

In our opinion mapping is possible only at the level of the “leopard spots”, where populations living in relative isolation may have been subjected to levels of radiation similar to those in certain territo ri es close to the C hernobyl power station in April-May-June 1986.

Attempts are still being made today to produce these maps which, in these conditions, cannot reflect what really happened in France in the days following the C hernobyl accident , and this is still a bone of contention.

The information of the IRSN [ I nstitut de r adioprotection et de s ûreté n ucléaire – Institute for Radioprotection and Nuclear Safety ] sheds some light on the subject, but it was received too late to be include d in this report within the allotted time.

Finally , there is information in the sealed evidence concerning the respective roles by the various State authorities in such circ umstances [ sic ] . There was a major controversy over the subject, including whether informing the public was the role of the SCPRI or the SGCISN [ S ecr e ta ry Gene ral of the Interministe ri a l Nuclear Safety Committee ], whose job it was according to interminist erial directive SGSN 5400 on inform ing the public and the me dia in the event of a nuclear safety incident or accident . This aspect of the evidence cannot be neglected . ”

C. Relevant domestic law

12 . The relevant provisions of C hapter IV of the Freedom of the Press Act of 29 July 1881 provide :

Section 29

“It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the impugned speeches, shouts, threats, written or printed matter, placards or posters.

It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact.”

Section 31

“ Defamation by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, a representative or officer of the law, a minister of religion in receipt of a State salary, a citizen temporarily or permanently responsible for a public service or discharging a public mandate, a member of a jury or a witness on the basis of his witness statement [in speeches, shouts or threats made or uttered in public places or meetings, or in written or printed matter, drawings, engravings, paintings, emblems, images or any other written, spoken or pictorial medium sold or distributed, offered for sale or exhibited in public places or meetings, or on placards or posters on public display, or in any audiovisual medium] shall be puni shable [by a fine of 45,000 euros].

... ”

Section 35

“ The truth of the de famato ry allegation , but only when it relates to functions , may be established in the ordinary way in the case of allegations against State institutions , the army, navy or air force , the public authorities and any of the persons listed in s ection 31.

The truth of de famato ry and insulting allegations may also be established against directo rs o r administrat o rs of any public industrial , commercial or financi al company .

The truth of the de famato ry allegations may always be established except :

( a) w hen the allegation concern s the person ’ s private life ;

(b) w hen the allegation refers to events dating back more than ten years ;

( c) w hen the allegation refers to events in respect of which an amnesty has been granted or which are time-barred or gave rise to a conviction which has been expunged by re habilitation or re vi ew .

Sub sections ( a ) and ( b ) above shall not apply when the facts are offences provided for and punishable under Articles 222-23 to 222-32 and 227-22 to 227-27 of the Criminal C ode and were committed against a minor .

In the cases provided for in the previous two paragraphs, rebutt ing evidence is reserved . If proof of the de famato ry allegation is established , the defendant shall be acquitted .

In any other circumstances and in respect of any other unspecified person, when the allegation has given rise to proceedings brought by the prosecution service or a complaint lodged by the defendant , while the resulting investigation takes its course the proceedings and trial for de famation shall be suspended . ”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

13 . The applicant complained that the French courts had convict ed him of aiding and abetting public defamation of a civil servant on account of statements he had mad e during a television programme called Tout le monde en parle , broadcast on France 2 during the night of 23 to 24 O ctob er 1999. He complained of a violation of his right to freedom of expression as guaranteed under Article 10 of the Convention, which is worded 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 author ity and regardless of frontier. This A rticle shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A. The parties ’ submissions

14 . The applicant emphasised in particular that the impugned remarks concern ed a very serious public- health issue as they referred to the Chernobyl disaster – the most serious nuclear accident Europe has experienced – and the shortcomings of the aut h orit ie s and the public body in charge of informing the French population – the Central Service for Protection against Ionising Radiation (“SCPRI” ) – and were fully consistent with his political commitment to environmental issues .

He claimed that i n a joking tone verging on “ exag ge ration ” , or even “ provocation ” ( the applicant referred here to Prager and Oberschlick v . Au stria , 26 Ap ril 1995, S e rie s A no. 313), he had replied spontaneously with a “quip” to the mention of a serious subject brought up during a talk show , so it was unlikely that viewers would have taken his remarks at face value . He added that he could not have avoided m e ntioning Mr Pellerin as the latter chaired and person ified the body he meant to criticis e for circulating falsely reassuring information about the effects of the disaster in France .

The applicant considered that freedom to receive and communi cate information and ideas should be un restrict ed in a case like this, a rg uing that “ t he fact that the nuclear lobby is so powerful in France does not mean that it is unacceptable to express ideas that offend it or shock its supporters : d e mocra cy means pluralism, tol e rance and broadmindedness ( see Handyside v . the United Kingdom , 7 De cemb er 1976, S e rie s A n o. 24, and Jersild v . D en mark , 23 S eptemb er 1994, S e rie s A no. 298) ” .

15 . The Government submitted that the application was manifestly ill-founded.

They acknowledge d that the applicant ’ s conviction for aiding and abetting defamation of a civil servant constituted interference with the exercise of his right to freedom of expression. They considered, however, that th e interference was “prescribed by law” , namely the Freedom of the Press Act of 29 July 1881 , and pursued one of the le gitim at e aim s set out in Article 10 § 2 : “the protection of the re put ation ... of others” , namely Mr Pellerin in his capacity as directo r of the SCPRI.

The Government adm itted that the applicant ’ s comments concerned a question of general concern relating to public health , but felt that they had overstepped the limits laid down with a view to protecting the reputation of others . In their submission, t hey had targeted Mr Pellerin in insulting terms while he was “exercising publi c authority in connection with a highly sensi tive subject , namely monitoring radioactivit y levels in France at the time of the C hernobyl disaster” , and accus ed him of “lying to journalists and therefore to the general public by deliberately concealing the truth about the re percussions of [that] disaster on France” . In so doing the applicant had allegedly cast aspersions on Mr Pellerin ’ s honour , honesty and cr e dibilit y as d irect o r of the SCPRI ( and not , as he had alleged , the director of France ’ s nuclear authorities as a whole ) . The fact that the comments had been made at a time when Mr Pellerin was no longer active and the SCPRI no longer existed made no difference to the damage done to his re putation and that of the SCPRI , as they had “suggested that there had been manipulat ion of the facts by the public authorities , for which Mr Pellerin and the SCPRI had knowingly been responsible” . That being so, and bearing in mind that the impugned comments had been made on a popular television programme and the applicant had only been sentenced to a fine of 1,500 euros and to publish a statement , the interference with his freedom of expression had been proportionate and necessary in a democratic society within the meaning of A rticle 10 § 2.

Lastly , the Government consid ered the reasons given by the trial court “pertinent and sufficient” . They conceded that the applicant had been unable to plead the defence of truth ( exceptio veritatis ) because the impugned comments concern ed events dating back more than ten years ( the justification for that princip l e lying in the need for the law to ensure that the reality of past events could not be challenged without any limit in time ), but considered , in the light of the documents the applicant had produced in court , that he would have had little chance of success in any event . They added that the applicant had, on the other hand, been able to plead good faith , which was assessed according to four cumulati ve criteria : caution in the choice of words , lack of personal animosity , l e gitim at e aim of the information and serious verification . T he courts had rejected that claim , in particular because they had rightly found that the first two criteria had not been met . The Court of Appeal had found that “ the peremptory nature ” of the applicant ’ s comments and the “ pejorative characteristics ” he had attribute d to the civil party reveal ed a lack of moderation . According to the Government , “the applicant should have been all the more careful in that he was a member of parliament and a mayor , elected offices which require a degree of self-restraint , and he was expressing himself on a popular television programme” ; as the Court of Appeal had rightly found , the fa c t that he had spoken in jest did not make what he had said any less defamatory . As regards personal animosit y , the Government submitted in particular that the c ourt of f irst i nstance had noted that the applicant ’ s remarks had been directed against Mr Pellerin alone, not against the French nu c lear authorities, and had not been devoid of “a certain animosit y towards the civil part y” .

16 . In reply the applicant produ ced the opinion of the judicia l experts appointed by the investigating judge for the purposes of a preliminary investigation initiated following a com plaint against a person or persons unknown , together with a civil-party application , lodged , inter alia , by people suffering from thyroid cancer, with a view in particular to analysing the sealed samples collected by the SCPRI at the time of the Chernobyl accident and de termin ing exactly what the SCPRI had known ( see paragraph s 6 and 11 above ). He stressed that the experts had “found that the SCPRI had very promptly received all the relevant information about the accident and that the i nformation it had issued had been neither complete nor precise , and certain values had been concealed”.

B. The Court ’ s assessment

1. Admissibility

17 . The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

2. The merits

18 . The Cour t has no doubt that the applicant ’ s conviction for aiding and abetting public defamation of a civil servant constitutes interference with the exercise of his right to freedom of expression or that th e interference was “prescribed by law” (Freedom of the Press Act of 29 July 1881) and pursued one of the legitimate aims set out in Article 10 § 2 ( “th e protection of the reputation ... of others” ) . Moreover, that has not been disputed.

19 . It remains to be ascertained whether the interference was “necessary in a democratic society” to achiev e th at aim .

The basic principles found in the Court ’ s case-law on this subject are the following ( see, among many other authorities , Hertel v . Switzerland , 25 August 1998 , § 46 , Reports of Judgments and Decisions 1998-VI):

( i ) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, 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. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this f reedom is subject to exceptions which, however, must be narrowly interpreted and the necessity for any exceptions must be convincingly established.

(ii) The adjective “necessary” , within the meaning of Article 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 European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. 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.

(iii) 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 the decisions they delivered pursuant to their power of appreciation. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “ proportionate to th e legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts.

20 . That being so , the Court points out first of all that the instant case is one where A rticle 10 requires a high level of protection of the right to freedom of expression , for two reasons . The first is that the applicant ’ s remarks concerned issues of general concern , namely, protection of the environ ment and public health ( see , among other authorities, Hertel , cited above , § 47; Bladet Tromsø and Stensaas v . Norway [GC] , no. 21980/93 , ECHR 1999-III; VgT Verein gegen Tierfabriken v . Switzerland , no. 24699/94, §§ 70 and 72 , ECHR 2001-VI; Vides Aizsardzī bas Klubs v . L atvia , no. 57829/00 , § 42 , 27 May 2004; and Steel and Morris v . the United Kingdom , no. 68416/01 , §§ 88-89 , ECHR 2005-II) , and how the French authorities dealt with those issues in the context of the C hernobyl disaster ; indeed, they were part of an extremely important public debate focused in particular on the insufficient in f ormation the authorities gave the population regarding the levels of contamination to which they had been expos ed and the public - health consequences of that exposure. The second reason is that the applicant was undeniably speaking in his capacity as an elected representative committed to ecological issues , so his comments were a form o f politi cal or “ militant ” expression ( see, among other authorities, Steel and Morris , cited above , loc. cit. ).

The Cour t accordingly consi ders that the marg in of a ppr e ciation available to the aut h orit ie s in establishing the “need” for the impugned me a sure was particul arly narrow .

21 . The Court notes that in convicting the applicant the Paris Court of Appeal consid ered that the applicant ’ s remarks had damaged Mr Pellerin ’ s “ hon o ur and reput ation ” by accusing him of repeatedly “ having knowingly supplied, in his capacity as a specialist on radioactivity issues, erroneous or even untrue information about such a serious problem as the Chernobyl disaster, which was of potential consequence for the health of the French population ”, and were accordingly de famato ry within the meaning of section 29 of the 1881 Act .

Then , having held that the “defamatory statements” related to events that had occurred too long ago for the applicant to be able to absolve himself of criminal liability by proving that they were true, the Court of Appeal fo und that he had not acted in good faith simply because he had lacked moderation . It considered that in using phrases like “kept on telling us” the applicant had insisted strongly and in no uncertain terms that M r Pellerin had deliberately and repeatedly lied , and that he had constantly and knowingly distorted the truth ; he had also attribute d “ pejorative characteristics ” to Mr Pellerin , calling h im “ sinist er” and saying that he suffer ed from the “Asterix complex” ( see paragraph 8 above ).

22 . The Court does not propose to substitute its own assessmen t for that of the domestic courts regarding the alleged damage to Mr Pellerin ’ s “honour and reputation” within the meaning of section 29 of the 1881 Act . It simply notes that the applicant criti cised Mr Pellerin by name, clearly suggesting that in the course of his duties at the SCPRI he had contribu ted to the dissemination of inaccurate information about the effe c ts of the Chernobyl disaster in France , and concludes accordingly that the reasoning followed by the Court of Appeal on that point is suffi cie nt.

23 . However , the Court reiterates that people prosecuted as a result of comments they make about a topic of general interest must have an opportunity to absolve themselves of liability by establishing that they acted in good faith and , in the case of factual allegations, by proving they are true ( see Castells v . Spain , 23 April 1992 , § 48 , S eries A no. 236 ; see also Colombani and O thers v . France , no. 51279/99 , § 66 , ECHR 2002-V). In the instant case the impugned remarks amounted to value judgments but were also – as the domestic courts found – factual allegations ; the applicant should therefore have been offered both those opportunities .

24 . However, as the applicant ’ s remarks referred to ev ents – the C hernobyl disaster , the attitude of the F rench authorities and the statements made by the SCPRI and it s direct o r in the media – th at dated back more than ten yea rs , section 35 of the 1881 Act barred the applicant from relying on the defence of truth ( exceptio veritatis ) .

The Government argue d that the princip l e was justifie d by the need for the law to ensure that th e reality of past events could not be challenged without any limit in time ; they add ed that the applicant would in any event have had little chance of succ es s even if he had been able to rely on that defence . The Court is not convinced by this argument. In general terms it does see the logic behind a time bar of this nature , in so far as the older the events to which alle gations refer , the more diffic ult it is to establish the truth of those allegations . However, where historical or scientific events are concerned , new facts may emerge over the years that enrich the debate and improve people ’ s understanding of what actually happened . That is clearly the case with regard to the environment al and public- health effects of the Chernobyl accident and the way in which the authorities in general and the SCPRI i n particul a r handled the crisis ; the expert judicia l re port mention ed above bears this out (paragraph s 6, 11 and 16 above ). That document , as well as the other evidence adduced by the applicant ( the press release issued by the Minist ry of Agriculture on 6 May 1986 and the extract from the transcript of the statement of the Minist er of Industry to the S e nat e on 23 May 1986; see paragraph 10 above ) , show that each of the assertions the Court of Appeal relied on to reach its conclusion that the impugned remarks were defamatory was susceptible to an attempt to establish its truth , be it the number and content of the communications by the SCPRI and its direct o r to the population and the aut h orit ies , the accuracy or otherwise of the information thus passed on or , if applicable , whether or not the authorities concerned were aware that the information they were disseminating was false .

25 . Moreover, as it relies solely on the debatable im moderation of the impugned comments , the reasoning on which the Court of Appeal based its finding that the applicant had not spoken in good faith does not convince the Court .

Under the case-law, while any individu al who takes part in a public debate of general concern – like the applicant in the instant case – must not overstep certain limit s, particularly with regard to respect for the re putation and the rights of others , a degree of exaggeration, or even provocation, is permitted ( see , for ex a mple, Steel and Morris , cited above , § 90), in other words, a degree of immod eration is allowed .

In the opinion of the Court , the impugned remarks in the instant case , although sarcasti c , remain within the limits of admissible exag ge ration or provocation . The Court sees no manifestly insulting language in the remarks : although Mr Pellerin is called a “sinister character” , the real meaning of the word should be borne in mind, and the fact that the applicant was not referring to him so much as a person but also and above all as a repr e senta tive of a body that had been in the front line when it came to inform ing the public about the effe c ts i n France of the C hernobyl accident , which was a sinister event . As to the refe rence to the “Asterix complex ”, that – just like the image of a radioacti ve cloud “blocked” at the F rench border – can only be seen as a caricature of the situation as perceived by the applicant , evoking a particul arly confi dent attitude on the part of the aut h orit ie s, to the d e triment of geographical common sense ( even if the real effe c ts of the C hernobyl disaster in France remain large ly uncertain to this day ). As to the phrase “ke pt on telling us ... ” , rather than an allegation of deliberate repeated lying , one can only see it as a r efe rence to the numerous statements made by the direct o r of the SCPRI in the media , which the applicant , a television journalist at the time of the disaster , had been in a good position to witness . The remarks must also be placed in their context: the applicant was reacting spontan eously to the mention by another guest person ality of the emotion he had felt on reading a book devoted to the victims of the C hernobyl disaster , on a programme which was more of an entertain ment than a news programme and which owed its popularity to the exag ge ration and provocation featured on it .

26 . In the Court ’ s view the reasons given by the domestic courts for their finding of a lack of good faith reveal a particul arly inflexible interpretation of the applicant ’ s remarks which is not easy to reconcile with the right to freedom of expression.

27 . The Court must certainly also take into account the fact that the impugned comments criticised Mr Pellerin in his capacity as head of the SCPRI, particularly as the applicant was convicted of aiding and abetting public defamation of a “ civil servant ” under section 31 of the 1881 Act . In Janowski v . Pol and ( [GC] , no. 25716/94 , § 33 , ECHR 1999-I) the Court stressed that civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks and it may prove necessary to protect them from offensive verbal attacks when on duty ; this also applies to defamatory allegations concerning acts performed in the exercise of their duties ( see, for example, Busuioc v . Mold ova , no. 61513/00, § 64 , 21 December 2004 ).

T he Court does accept that the e minent valu e of freedom of expression, especially in debates on subjects of general concern , cannot take precedence in all circumstances over the need to protect the honour and reputation of others , be they ordinary citizens or public official s. On a number of occasions it has found that the nature and gravity of accusations against civil servants or former civil servants can lead it to conclude that me a sures taken in such a context are compatible with A rticle 10 ( see , for ex a mple, Radio France and Others v . France , no. 53984/00, ECHR 2004-II, or Pedersen and Baadsgaard v . D en mark [GC], no. 49017/99, ECHR 2004-XI).

However, that does not mean that the punishment of all criticism of civil servants related to the performance of their duties is, ipso facto , compatible with A rticle 10 of the Convention. As the Court also pointed out in Janowski , while it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do , in certain cases civil servants acting in an official capacity a re subject to wider limits of acceptable criticism than ordinary citizens . I t would be go ing too far to extend the principle established in that judgment without reservation to all persons who are employed by the State , in any capacity whatsoever ( see Busuioc , cited above , loc. cit. ). Moreover, t he requirements of protecti ng civil servants have to be weighed against the interests of freedom of the press or of open discussion of matters of public conce rn ( see Janowski and Busuioc , both cited above ).

28 . In the instant case the Court notes that one of the tasks of the SCPRI, of which Mr Pellerin was the direct o r, was to monito r radiation levels in the country and alert th e relevant ministries in the event of a problem . It understands that the confidence of the public is particularly importan t to the successful accomplis h ment of such a task . However, those responsible for carrying it out must themselves help to win that confi de nce , for example by showing caution when announcing their assessment of dangers and ris ks such as those arising from an event like the C hernobyl disaster . The Cour t fails to see how such an issue could still be topical at the time when the applicant made the allegedly defam ato ry comment s: the SCPRI no longer existed and the civil servant concerned was 76 years old and no longer in service . Furthermore, the question of Mr Pellerin ’ s person al and “i nstitution al” responsibility is an integral part of the debate on a matter of general concern, seeing that as director of the SCPRI he had access to the measures being taken and had on several occasions made use of the media to inform the public of the level of contamination, or rather, one might say, the lack of it, in France.

29 . On that basis t he Cour t finds that the fact that the impugned comments criticised Mr Pellerin in his capacity as the former director of the SCPRI did not legitimately justify any particular severity in the judgment of the applicant ’ s case .

30 . In the light of the above , and in particular the extreme importance of the debate on a matter of general concern in the context of which the impugned comments were uttered , the applicant ’ s conviction for de famation cannot be considered proportion ate and therefore “ n e cessa ry in a de mocrati c society” within the meaning of A rticle 10 of the Convention. There has therefore been a violation of that provision.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

31 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

32 . The applicant has submitted no claim for just satisfaction . Accordingly, the Court considers that no award should be made under this head.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of Article 10 of the Convention.

Done in French, and notified in writing on 7 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S tanley N aismith A ndrás B aka Deputy Registrar P resident