PARTLY DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

I am unable to agree with the majority of the Chamber in so far as it finds a breach of Article 10 (art. 10).

Although I fully endorse what the Chamber says on the subject of freedom of expression, and in particular about the importance of freedom of the press in a democratic society, I believe that the Chamber has failed to recognise the limits that this freedom entails, which are also of importance in a civilised democratic society. Indeed, the reference in the second paragraph of Article 10 (art. 10-2) to the "duties and responsibilities" inherent in freedom of the press seems to carry little weight in the Court ’ s case-law.

Applying these principles to the present case, I would make the following observations.

The applicants were entitled to criticise the decision of the Antwerp Court of Appeal awarding Mr X custody of his children since the objective information available to them justified the severest censure of that decision; having regard to the circumstances of the case, it was indeed legitimate to ask how the judges in question could have taken such a decision.

What I find fault with in the press articles that gave rise to the decision imposing a penalty on the applicants - albeit a nominal one - is the insinuation that the judges who gave that decision had deliberately acted in bad faith because of their political or ideological sympathies and thus breached their duty of independence and impartiality, all with the aim of protecting someone whose political ideas appeared to be similar to those of the judges concerned. Nothing justified such an insinuation, even if it had been possible to discover the impugned judges ’ political opinions.

In those circumstances, the interference constituted by the judgment against the applicants was "necessary" within the meaning of the second paragraph of Article 10 (art. 10-2) and was not disproportionate.

PARTLY DISSENTING OPINION OF JUDGE MORENILLA

(Translation)

1. To my regret, I cannot agree with the majority ’ s conclusion as to the breach of Article 10 of the Convention (art. 10) in this case. In my opinion, the Belgian civil courts ’ judgment against the applicants for defamation was necessary in a democratic society and proportionate within the meaning of paragraph 2 of Article 10 (art. 10-2).

In the impugned judgments - of the Brussels tribunal de première instance, the Brussels Court of Appeal and the Court of Cassation - the defendants, Mr De Haes and Mr Gijsels , who are journalists, were found to have acted unlawfully. They were ordered to pay each of the four plaintiffs - three judges and an Advocate-General at the Antwerp Court of Appeal - one franc in respect of non-pecuniary damage suffered and to publish the relevant decision in full in the weekly magazine Humo , in which they had published five articles between July and November 1986 criticising judgments given by the Third Division of that court in terms which the members of that division described as defamatory. The plaintiffs were also given leave to have the judgment published in six daily newspapers at the applicants ’ expense.

The decisions criticised by the applicants had been given in divorce proceedings in which the Court of Appeal had awarded the father custody of his children despite allegations by the mother that he had committed incest with them and subjected them to abuse.

2. Like the majority, I take the view that the impugned judgments undoubtedly amounted to an interference with the applicants ’ exercise of their right to freedom of expression, including freedom to hold opinions and the right to impart information, which is enshrined in Article 10 of the Convention (art. 10). That interference was provided for in Articles 1382 et seq. of the Belgian Civil Code and pursued the aim of protecting the reputation of others - in this instance the reputation of the judges of the division of the Court of Appeal that had delivered the judgment - and maintaining the authority and impartiality of the judiciary, legitimate aims under Article 10 para. 2 of the Convention (art. 10-2).

3. The necessity of the judgment against the applicants in a democratic society is therefore the final condition that the interference has to satisfy in order to be regarded as justified under paragraph 2 of Article 10 of the Convention (art. 10-2). It is also the only ground for my dissent from the majority, who considered that the measure was neither necessary nor proportionate in view of the fundamental role of the press in a State governed by the rule of law and the relevance, in principle, of criticism of the functioning of the system of justice.

4. In my view, however, the articles in question contained, in addition to criticism of the judicial decision on the custody of the children in the divorce proceedings, assessments of the Belgian judicial system in general and the political opinions of members of the Antwerp Court of Appeal, whose names were given, and details of the past of the father of one of the judges. They attributed to the judges and the Advocate-General political ideas similar to those of the father who had been awarded custody. I consider these comments to have been very offensive to the Belgian judiciary and defamatory of the judges and Advocate-General at the Court of Appeal. The latter were intentionally accused by the applicants of having taken unjust decisions because of their friendship or their political affinities with one of the parties to the proceedings, and that amounts to an accusation of misfeasance in public office.

5. The articles contained expressions such as "Two children crushed between the jaws of blind justice. Incest authorised in Flanders " or "Most of the judges of the Third Division of the Court of Appeal, who awarded custody to the notary, also belong to extreme-right-wing circles. Judge [YB] is the son of a bigwig in the gendarmerie who was convicted in 1948 of collaboration ... It just so happens that Principal Crown Counsel [YJ] has the same political sympathies as the X family" (first article, of 26 June 1986). "[H] alf Flanders is shocked by such warped justice." "This kind of brutal pressurising seems to ‘ work ’ very well within the system of justice." "Thanks to the fresh data, we now have an even better picture of how often and how treacherously the courts have manipulated the case" (second article, of 17 July 1986). "[T]he ultimate guarantee of our democracy, an independent system of justice, has been undermined at its very roots" (third article, of 18 September 1986). "It remains a disgrace that the Antwerp courts refuse to take this evidence into account" (fifth article, of 27 November 1986).

6. In another case concerning the conviction of a journalist and a publisher for defamation of a judge, similar to the present case, albeit in criminal proceedings, the case of Prager and Oberschlick v. Austria (judgment of 26 April 1995, Series A no. 313), the Court stressed the need to strike the correct balance between the role of the press in imparting information on matters of public interest, such as the functioning of the system of justice, and the protection of the rights of others and "the special role of the judiciary in society", where "as the guarantor of justice, a fundamental value in a law-governed State, it must enjoy public confidence if it is to be successful in carrying out its duties" (paragraph 34).

7. These features of freedom of the press not only are compatible with freedom of expression but also confer on it the objectivity required to ensure truthful and serious reporting of the functioning of the system of justice. As the Court said in the Prager and Oberschlick case, "[ i ]t may therefore prove necessary to protect such confidence against destructive attacks that are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying" (ibid.).

8. In the same judgment the Court also said: "The assessment of these factors falls in the first place to the national authorities, which enjoy a certain margin of appreciation in determining the existence and extent of the necessity of an interference with the freedom of expression." However, this margin of appreciation is subject to European supervision (paragraph 35). In reviewing its compatibility with the Convention, the Court must have regard to the fact that "the press is one of the means by which politicians and public opinion can verify that judges are discharging their heavy responsibilities in a manner that is in conformity with the aim which is the basis of the task entrusted to them" (paragraph 34).

9. In my opinion, the decision on how to classify the extracts mentioned in the impugned judgments concerning the lack of impartiality of the judges and the Advocate-General at the Antwerp Court of Appeal and the statements regarding the Belgian system of justice lies within the margin of appreciation of the national courts. The statements made by the applicants amounted to value judgments on the political ideas of the judges and Advocate-General in question or on the influence that those ideas and family background had on the decision commented upon. Such value judgments were not susceptible of proof and could not justify the accusation of bias on the part of the judges or the sweeping nature of the accusations or the virulence and contemptuousness of the terms employed.

10. The judicial decisions complained of were based not on the criticism of the "objective truth" of the facts established in the divorce proceedings or on the lawfulness of the decisions taken by the judges, but on the dishonouring statements contained in the articles. The journalists nevertheless raised important questions relating to the criticism of the functioning of the system of justice and the courts ought to have considered them in full and ruled on them in their judgments. This defect does not, in my view, invalidate the judgment against the applicants for defamation, since that judgment was in fact based on the offensive statements used in their articles. The defect goes to the breach of Article 6 (art. 6), which the Court found unanimously.

11. In the strict context of the impugned decisions, I consider that the Belgian civil courts ’ finding that the terms employed and statements made in the articles had undermined the reputation for impartiality of the judges who had given the judgment on appeal and the authority and independence of the judiciary was in conformity with Article 10 para. 2 of the Convention (art. 10-2), as was the relief afforded to the plaintiffs on this account.

[1] The case is numbered 7/1996/626/809. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9).

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997-I), but a copy of the Commission's report is obtainable from the registry.