ALLENET DE RIBEMONT v. FRANCE - 15175/89 [1995] ECHR 5 (10 February 1995)

AS TO THE FACTS

7. Mr Patrick Allenet de Ribemont is a company secretary.

He currently lives in Lamontjoie (Lot-et-Garonne).

A. The background to the case

8. On 24 December 1976 Mr Jean de Broglie, a Member of

Parliament (département of Eure) and former minister, was murdered in front of the applicant's home. He had just been visiting his financial adviser, Mr Pierre De Varga, who lived in the same building and with whom Mr Allenet de Ribemont was planning to become the joint owner of a Paris restaurant, "La Rôtisserie de la Reine Pédauque". The scheme was financed by means of a loan taken out by the victim. He had passed on the borrowed sum to the applicant, who was responsible for repaying the loan.

9. A judicial investigation was begun into the commission by a person or persons unknown of the offence of intentional homicide. On 27 and 28 December 1976 the crime squad at Paris police headquarters arrested a number of people, including the victim's financial adviser. On the 29th it arrested Mr Allenet de Ribemont.

B. The press conference of 29 December 1976 and the implicating of the applicant

10. On 29 December 1976, at a press conference on the subject of the French police budget for the coming years, the Minister of the Interior, Mr Michel Poniatowski, the Director of the Paris Criminal Investigation Department, Mr Jean Ducret, and the Head of the Crime Squad, Superintendent Pierre Ottavioli, referred to the inquiry that was under way.

11. Two French television channels reported this press conference in their news programmes. The transcript of the relevant extracts reads as follows:

"TF1 NEWS

Mr Roger Giquel, newsreader: ... Be that as it may, here is how all the aspects of the de Broglie case were

explained to the public at a press conference given by

Mr Michel Poniatowski yesterday evening.

Mr Poniatowski: The haul is complete. All the people involved are now under arrest after the arrest of Mr De Varga-Hirsch. It is a very simple story. A bank loan guaranteed by Mr de Broglie was to be repaid by Mr Varga-Hirsch and Mr de Ribemont.

A journalist: Superintendent, who was the key figure in this case? De Varga?

Mr Ottavioli: I think it must have been Mr De Varga.

Mr Ducret: The instigator, Mr De Varga, and his acolyte, Mr de Ribemont, were the instigators of the murder. The organiser was Detective Sergeant Simoné and the murderer was Mr Frèche.

Mr Giquel: As you can see, those statements include a

number of assertions. That is why the police are now

being criticised by Ministry of Justice officials. Although Superintendent Ottavioli and Mr Ducret were

careful to (end of recording).

ANTENNE 2 NEWS

Mr Daniel Bilalian, newsreader: ... This evening,

therefore, the case has been cleared up. The motives and the murderer's name are known.

Mr Ducret: The organiser was Detective

Sergeant Simoné and the murderer was Mr Frèche.

Mr Ottavioli: That is correct. I can ...

[unintelligible] the facts for you by saying that

the case arose from a financial agreement between

the victim, Mr de Broglie, and Mr Allenet de Ribemont and Mr Varga.

Mr Poniatowski: It is a very simple story. A bank

loan guaranteed by Mr de Broglie was to be repaid by

Mr Varga-Hirsch and Mr de Ribemont.

A journalist: Superintendent, who was the key figure

in this case? De Varga?

Mr Ottavioli: I think it must have been Mr De Varga.

Mr Jean-François Luciani, journalist: The loan was

guaranteed by a life insurance policy for four hundred

million old francs taken out by Jean de Broglie. In the

event of his death, the sum insured was to be paid to

Pierre De Varga-Hirsch and Allenet de Ribemont. The

turning-point came last night when Guy Simoné, a police officer, was the first to crack. He admitted that he had organised the murder and had lent a gun to have the MP killed. He also hired the contract killer, Gérard Frèche, who was promised three million old francs and who in turn found two people to accompany him. The reasons for their downfall were, first, that Simoné's name appeared in Jean de Broglie's diary and, second, that they killed him in front of no. 2 rue des

Dardanelles. That was not planned. The intention had

apparently been to take him somewhere else, but

Jean de Broglie perhaps refused to follow his killer. At all events, that was their first mistake. Varga and

Ribemont apparently then refused to pay them. That led

to the secret meetings in bars, the shadowing by the

police and informers - we know the rest of the story -

and their arrest. The second mistake was made by Simoné.

Before contacting Frèche he approached another contract killer, who turned down the job but apparently talked to other people about it. To catch the killers, the police realistically based their investigation on two simple ideas. Firstly, the murder was committed in the rue des Dardanelles as Jean de Broglie was leaving De Varga's home. There was necessarily a link between the killer and De Varga. Secondly, De Varga's past did not count in his favour and the police regarded him as a rather dubious legal adviser. Those two simple ideas and over sixty investigators led to the discovery of the murderer.

Mr Bilalian: The epilogue to the case coincided with a Cabinet meeting at which the question of public safety

was discussed ..."

12. On 14 January 1977 Mr Allenet de Ribemont was charged with aiding and abetting intentional homicide and taken into custody. He was released on 1 March 1977 and a discharge order was issued on 21 March 1980.

C. The compensation claims

1. The non-contentious application

13. On 23 March 1977 Mr Allenet de Ribemont submitted a claim to the Prime Minister based on Article 6 para. 2 (art. 6-2) of the Convention, inter alia. He sought compensation of ten million French francs (FRF) for the non-pecuniary and pecuniary damage he maintained he had sustained on account of the above-mentioned statements by the Minister of the Interior and senior police officials.

2. The proceedings in the administrative courts

(a) In the Paris Administrative Court

14. On 20 September 1977 the applicant applied to the Paris Administrative Court for review of the Prime Minister's implicit refusal of his claim and renewed his claim for compensation. He filed pleadings on 12 October 1977.

On 21 February 1978 the Minister of Justice did likewise.

After notice had been served on them by the Administrative Court on 14 March 1978, the Minister of the Interior and the Prime Minister filed pleadings on 21 and 27 April 1978 respectively. Mr Allenet de Ribemont filed more pleadings on 29 March and 24 May 1978.

Further pleadings still were filed on 29 March 1979 by the Minister of Culture, to whom the case file had been sent on 23 January 1979; on 6 June 1979 and 12 August 1980 by the Minister of the Interior; and on 14 May 1980 by the applicant.

15. After a hearing on 29 September 1980, the Paris

Administrative Court delivered a judgment on 13 October 1980 in which the following reasons were given:

"Mr Allenet, known as Allenet de Ribemont, has applied

for an order that the State should pay compensation for

the damage that the Minister of the Interior of the time allegedly caused him by naming him in statements made on 29 December 1976 during a press conference on the murder of Mr Jean de Broglie.

Although the State may be liable in damages for the

administrative acts of a member of the Government,

statements that he makes in the course of his

governmental duties are not susceptible to review by the administrative courts. It follows that the application is inadmissible.

..."

(b) In the Conseil d'Etat

17. After a hearing on 11 May 1983 the Conseil d'Etat

dismissed the appeal on 27 May 1983, on the following grounds:

"Mr Allenet, known as de Ribemont, claimed compensation for the damage he allegedly sustained on account of statements made to the press on 29 December 1976 by the Minister of the Interior, the Director of the Criminal Investigation Department and the Head of the Crime Squad on the outcome of the police inquiries carried out as part of the judicial investigation into the murder of Mr Jean de Broglie. Statements made by the Minister of the Interior at the time of a police operation cannot be dissociated from that operation. Accordingly, it is not for the administrative courts to rule on any prejudicial consequences of such statements.

It follows from the foregoing that, although the Paris

Administrative Court was wrong to rule in the impugned

judgment that the applicant's claim related to an act

performed 'in the course of governmental duties' and thus not susceptible to review by the administrative courts,

Mr Allenet's appeal against the dismissal of his claim in that judgment is unfounded."

3. The proceedings in the ordinary courts

(a) In the Paris tribunal de grande instance

18. Mr Allenet de Ribemont brought proceedings in the Paris tribunal de grande instance against the Prime Minister on 29 February 1984 and the Government Law Officer (agent judiciaire du Trésor) on 5 March 1984.

On 25 September 1984 the Prime Minister submitted that the tribunal de grande instance had no jurisdiction as such an action could only, in his view, be brought in the administrative courts.

After requesting the applicant to produce the full text of the statements attributed to the Minister and raising an objection that an action for defamation was time-barred, the Government Law Officer replied on 21 September 1984 and on 28 May 1985.

19. The applicant filed his submissions on 14 November 1984 and 5 April 1985. He requested the court to order two French television companies to hand over video recordings of the press conference of 29 December 1976 and produced press cuttings relating to it.

20. The court gave judgment on 8 January 1986 as follows:

"Admissibility of the action brought against the Prime

Minister

Section 38 of the Act of 3 April 1955 provides that any

action brought in the ordinary courts for a declaration

that the State is owed or owes payment for reasons

unconnected with taxation or with State property must,

subject to exceptions provided for by law, be instituted by or against the Government Law Officer, failing which the proceedings shall be void.

It follows that Patrick Allenet de Ribemont's claim for reparation from the State for damage sustained on account of the statements attributed to the Minister of the Interior should have been lodged only against the Government Law Officer, who is the State's sole representative before the courts, and not against the Prime Minister, who accordingly must not remain a party

to the proceedings.

Jurisdiction

The Paris tribunal de grande instance must be held to

have jurisdiction in so far as the statements attributed to the Minister of the Interior can be linked with a police operation and are not dissociable from that operation.

The press conference of 29 December 1976, held by the

Minister of the Interior, the Director of the Criminal

Investigation Department and the Head of the Crime Squad to inform the press of the results of the police

inquiries following the murder of Jean de Broglie, may be considered indissociable from the police operation that was then under way.

...

The statements complained of

...

Anyone who complains of any statements, whether

defamatory or merely negligent within the meaning of

Article 1382 of the Civil Code, must prove that the

impugned statements were actually made. It is not for

the court to make good any omissions by the parties or to supplement evidence they have adduced, so long as they have been afforded the opportunity of presenting all their documents and arguments freely and in accordance nwith the adversarial principle.

In this respect, since the plaintiff has been unable to obtain the video recording of the press conference in question and the Government Law Officer considers that he is not under any obligation to request the judge in charge of preparing the case for trial or the court to order the compulsory production of such evidence, judgment must be given on the basis of the evidence in the case file.

Patrick Allenet de Ribemont has produced press cuttings describing the press conference of 29 December 1976, some of which are dated the day after the conference or the days following ... The newspapers did not, however, report the statements allegedly made by the Minister of the Interior, as set out in the writ.

However, in publications several years after the event, journalists attributed to the Minister of the Interio remarks about Patrick Allenet de Ribemont's alleged role, and in Le Point of 6 August 1979, for instance, it is possible to read Michel Poniatowski's statements, reported as follows:

'Mr De Varga and Mr de Ribemont were the instigators

of the murder. The organiser was Detective Sergeant Simoné and the murderer was Mr Frèche'. But, however carefully the journalists reported the statements in issue, the press articles relied on by Patrick Allenet de Ribemont cannot be accepted as the sole evidence in view of the objection raised by the defendant on this point.

It may further be observed, as a subsidiary point, that the publications at the time of the press conference in issue merely reported the remarks about

Patrick Allenet de Ribemont's involvement in Jean de Broglie's murder allegedly made by Superintendent Ottavioli after the Minister of the Interior had spoken.

Accordingly, since the plaintiff has brought proceedings against the State solely on account of the remarks attributed to the Minister of the Interior, the action must be dismissed without there being any need to examine the submission that an action either for defamation - although the plaintiff has disputed that his action was for defamation - or for a breach of the secrecy of judicial investigations provided for in Article 11 of the Code of Criminal Procedure, is time-barred.

..."

(b) In the Paris Court of Appeal

21. Mr Allenet de Ribemont appealed to the Paris Court of Appeal on 19 February 1986, and the Government Law Officer cross-appealed on 19 March.

22. The applicant again requested that the videotapes should be handed over for showing.

23. On 7 May 1986 the judge in charge of preparing the case for hearing served notice on Mr Allenet de Ribemont to file his submissions, but without success. On 14 October 1986 he requested him to produce his documents by 30 October and to file any submissions by 14 November. On 19 November he sent a final notice before terminating the preparation of the case for trial. The Government Law Officer filed submissions on 28 November and the applicant on 9 December. On 21 December the parties were informed that the order certifying that the case was ready for hearing would be issued on 28 April 1987.

24. At the hearing of 17 June 1987 Mr Allenet de Ribemont requested an adjournment and, having duly been given leave by the court, filed further submissions on 8 July.

25. The Court of Appeal held another hearing on 16 September 1987 and gave judgment on 21 October 1987. It

found against the applicant for the following reasons:

"The preliminary objection of inadmissibility

...

It is apparent from the arguments set out below

addressing the analysis of the damage that this is an

action to establish the State's liability on the ground

that the judicial system has malfunctioned, rather than a civil action for defamation and/or breach of the secrecy of judicial investigations.

The merits

According to the appellant, Mr Poniatowski had made the following statement: 'Mr De Varga and Mr de Ribemont were the instigators of the murder. The organiser was Detective Sergeant Simoné and the murderer was Mr Frèche'. It was allegedly apparent from the series of statements made by Mr Poniatowski, or by Mr Ducret and Mr Ottavioli under his authority, that all those guilty had been arrested, the haul was complete and the case was solved. These three had allegedly maintained that the motive for the crime was a bank loan obtained by Mr de Broglie to enable Mr de Ribemont to acquire a controlling interest in the Rôtisserie de la Reine Pédauque company.

However, as the court below rightly held, the press cuttings produced by Mr Allenet de Ribemont do not suffice to prove his allegations. Even supposing, however, that they had been proved, it would be necessary to establish whether the damage alleged by the appellant could be linked to the impugned statements.

...

It has not been shown that the statements complained of, which were made during the judicial investigation, in themselves caused the alleged damage. In so far as this damage appears to be connected with the existence of criminal proceedings, it still cannot be held that the statements in issue affected the course of the case.

In the absence of any causal link between the impugned

statements - should their exact terms be established - and the damage claimed, it is unnecessary to consider the subsidiary application to have the recording produced.

..."

(c) In the Court of Cassation

26. Mr Allenet de Ribemont lodged an appeal on points of law, which the Court of Cassation (Second Civil Division) heard on 4 November 1988 and dismissed on 30 November 1988 on the following grounds:

"The judgment [of the Paris Court of Appeal] has been

challenged because it dismissed Mr Patrick Tancrède

Allenet de Ribemont's appeal on the ground that the press cuttings he had produced did not suffice to prove his allegations. It is argued, however, firstly, that the Court of Appeal distorted the meaning of those press cuttings, which proved conclusively that statements had been made by the Minister of the Interior and indicated their exact terms; secondly, that it infringed Article 1382 of the Civil Code by refusing to take into consideration the non-pecuniary damage sustained by Mr Patrick Tancrède Allenet de Ribemont; and, lastly, that it breached Article 13 (art. 13) of the European Convention on Human Rights by denying fair reparation to a man whose reputation had been injured in statements heard by millions of television viewers. However, the Court of Appeal held in that judgment, adopting the reasoning of the court below, that the cuttings from the newspapers published on the day after the conference and on the following days did not report the statements allegedly made by the Minister of the Interior, as set out in the writ, but merely gave an account of remarks said to have been made by a police superintendent after the Minister had spoken, and that the remarks attributed to Mr Poniatowski, relating to

Mr Patrick Tancrède Allenet de Ribemont's alleged role as instigator, had been reported in a publication that appeared only several years after the event.

It was in the exercise of its unfettered discretion to assess the evidence before it that the Court of Appeal ruled, without distorting the meaning of the press cuttings, that they did not suffice to prove

Mr Patrick Tancrède Allenet de Ribemont's allegations.

In giving this reason alone - leaving aside the reasons criticised in the ground of appeal on points of law, which were subsidiary considerations - the Court of Appeal justified its decision in law.

..."

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 2 (art. 6-2) OF THE CONVENTION

31. Mr Allenet de Ribemont complained of the remarks made by the Minister of the Interior and the senior police officers accompanying him at the press conference of 29 December 1976.

He relied on Article 6 para. 2 (art. 6-2) of the Convention, which provides:

"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

A. Applicability of Article 6 para. 2 (art. 6-2)

32. The Government contested, in substance, the applicability of Article 6 para. 2 (art. 6-2), relying on the Minelli v. Switzerland judgment of 25 March 1983 (Series A no. 62). They maintained that the presumption of innocence could be infringed only by a judicial authority, and could be shown to have been infringed only where, at the conclusion of proceedings ending in a conviction, the court's reasoning suggested that it regarded the defendant as guilty in advance.

33. The Commission acknowledged that the principle of presumption of innocence was above all a procedural safeguard in criminal proceedings, but took the view that its scope was more extensive, in that it imposed obligations not only on criminal courts determining criminal charges but also on other authorities.

34. The Court's task is to determine whether the situation found in this case affected the applicant's right under Article 6 para. 2 (art. 6-2) (see, mutatis mutandis, the Sekanina v. Austria judgment of 25 August 1993, Series A no. 266-A, p. 13, para. 22).

35. The presumption of innocence enshrined in paragraph 2 of Article 6 (art. 6-2) is one of the elements of the fair criminal trial that is required by paragraph 1 (art. 6-1) (see, among other authorities, the Deweer v. Belgium judgment, of 27 February 1980, Series A no. 35, p. 30, para. 56, and the Minelli judgment previously cited, p. 15, para. 27). It will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty (see the Minelli judgment previously cited, p. 18, para. 37).

However, the scope of Article 6 para. 2 (art. 6-2) is not limited to the eventuality mentioned by the Government. The Court held that there had been violations of this provision in the Minelli and Sekanina cases previously cited, although the national courts concerned had closed the proceedings in the first of those cases because the limitation period had expired and had acquitted the applicant in the second. It has similarly held it to be applicable in other cases where the domestic courts did not have to determine the question of guilt (see the Adolf v. Austria judgment of 26 March 1982, Series A no. 49, and the Lutz, Englert and Nölkenbockhoff v. Germany judgments of 25 August 1987, Series A nos. 123-A, 123-B and 123-C).

Moreover, the Court reiterates that the Convention must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory (see, among other authorities, the Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 16, para. 33; the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 87; and the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 36, para. 99). That also applies to the right enshrined in Article 6 para. 2 (art. 6-2).

36. The Court considers that the presumption of innocence may be infringed not only by a judge or court but also by other public authorities.

37. At the time of the press conference of 29 December 1976 Mr Allenet de Ribemont had just been arrested by the police n(see paragraph 9 above). Although he had not yet been charged with aiding and abetting intentional homicide (see paragraph 12 above), his arrest and detention in police custody formed part of the judicial investigation begun a few days earlier by a Paris investigating judge and made him a person "charged with a criminal offence" within the meaning of Article 6 para. 2 (art. 6-2). The two senior police officers present were conducting the inquiries in the case. Their remarks, made in parallel with the judicial investigation and supported by the Minister of the Interior, were explained by the existence of that investigation and had a direct link with it. Article 6 para. 2 (art. 6-2) therefore applies in this

case.

B. Compliance with Article 6 para. 2 (art. 6-2)

1. Reference to the case at the press conference

38. Freedom of expression, guaranteed by Article 10 (art. 10) of the Convention, includes the freedom to receive and impart information. Article 6 para. 2 (art. 6-2) cannot therefore prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected.

2. Content of the statements complained of

39. Like the applicant, the Commission considered that the remarks made by the Minister of the Interior and, in his presence and under his authority, by the police superintendent in charge of the inquiry and the Director of the Criminal Investigation Department, were incompatible with the presumption of innocence. It noted that in them Mr Allenet de Ribemont was held up as one of the instigators of Mr de Broglie's murder.

40. The Government maintained that such remarks came under the head of information about criminal proceedings in progress and were not such as to infringe the presumption of innocence, since they did not bind the courts and could be proved false by subsequent investigations. The facts of the case bore this out, as the applicant had not been formally charged until two weeks after the press conference and the investigating judge had eventually decided that there was no case to answer.

41. The Court notes that in the instant case some of the highest-ranking officers in the French police referred to Mr Allenet de Ribemont, without any qualification or reservation, as one of the instigators of a murder and thus an accomplice in that murder (see paragraph 11 above). This was clearly a declaration of the applicant's guilt which, firstly, encouraged the public to believe him guilty and, secondly, prejudged the assessment of the facts by the competent judicial authority. There has therefore been a breach of Article 6 para. 2 (art. 6-2).

FOR THESE REASONS, THE COURT

1. Holds by eight votes to one that there has been a breach of Article 6 para. 2 (art. 6-2) of the Convention;

2. Holds unanimously that there has been a breach of

Article 6 para. 1 (art. 6-1) of the Convention;

3. Holds by eight votes to one that the respondent State is to pay the applicant, within three months, 2,000,000 (two million) French francs for damage;

4. Holds unanimously that the respondent State is to pay the applicant, within three months, 100,000 (one hundred thousand) French francs, plus value-added tax, for costs and expenses;

5. Dismisses unanimously the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public