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You are here: BAILII >> Databases >> European Court of Human Rights >> DE HAES AND GIJSELS v. BELGIUM - 19983/92 [1997] ECHR 7 (24 February 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/7.html
Cite as: [1997] ECHR 7, (1998) 25 EHRR 1, [1998] 25 EHRR 1, 25 EHRR 1

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JISCBAILII_CASE_ HUMAN_RIGHTS_ECHR

In the case of De Haes and Gijsels v. Belgium (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention") and the

relevant provisions of Rules of Court B (2), as a Chamber composed of

the following judges:

Mr R. Ryssdal, President,

Mr F. Matscher,

Mr J. De Meyer,

Mr I. Foighel,

Mr J.M. Morenilla,

Sir John Freeland,

Mr A.B. Baka,

Mr K. Jungwiert,

Mr U. Lohmus,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 29 October 1996 and

27 January 1997,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

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).

________________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 25 January 1996, within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47). It originated in an application

(no. 19983/92) against the Kingdom of Belgium lodged with the

Commission under Article 25 (art. 25) by two Belgian nationals,

Mr Leo De Haes and Mr Hugo Gijsels, on 12 March 1992.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Belgium recognised

the compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Articles 6 and 10 of the Convention (art. 6,

art. 10).

2. In response to the enquiry made in accordance with Rule 35

para. 3 (d) of Rules of Court B, the applicants stated that they wished

to take part in the proceedings and designated the lawyers who would

represent them (Rule 31).

3. The Chamber to be constituted included ex officio

Mr J. De Meyer, the elected judge of Belgian nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 4 (b)). On 8 February 1996, in the presence of

the Registrar, the President drew by lot the names of the other

seven members, namely Mr F. Matscher, Mr I. Foighel, Mr J.M. Morenilla,

Sir John Freeland, Mr A.B. Baka, Mr K. Jungwiert and Mr U. Lohmus

(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).

4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the

Belgian Government ("the Government"), the applicants' lawyers and the

Delegate of the Commission on the organisation of the proceedings

(Rules 39 para. 1 and 40). Pursuant to the order made in consequence,

the Registrar received the Government's and the applicants' memorials

on 26 June 1996. On 9 October the Commission supplied him with various

documents he had requested on the President's instructions.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

23 October 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr J. Lathouwers, Deputy Legal Adviser,

Head of Division, Ministry of Justice, Agent,

Mr E. Brewaeys, of the Brussels Bar, Counsel;

(b) for the Commission

Mr J.-C. Geus, Delegate;

(c) for the applicants

Mr H. Vandenberghe, of the Brussels Bar,

Mr E. Van der Mussele, of the Antwerp Bar, Counsel.

The Court heard addresses by Mr Geus, Mr Vandenberghe and

Mr Brewaeys.

AS TO THE FACTS

I. Circumstances of the case

6. Mr Leo De Haes and Mr Hugo Gijsels live in Antwerp and work as

an editor and journalist respectively for the weekly magazine Humo.

A. The action for damages against the applicants

7. On 26 June, 17 July, 18 September and 6 and 27 November 1986

the applicants published five articles (see paragraphs 19 et seq.

below) in which they criticised judges of the Antwerp Court of Appeal

at length and in virulent terms for having, in a divorce suit, awarded

custody of the children to the father, Mr X, a Belgian notary

(notaire); in 1984 the notary's wife and parents-in-law had lodged a

criminal complaint accusing him of incest and of abusing the children,

but in the outcome it had been ruled that there was no case to answer.

8. Mr X had instituted proceedings for criminal libel against

those who had lodged the complaint. The Malines Criminal Court and

subsequently the Antwerp Court of Appeal acquitted the defendants on

4 October 1985 and 5 June 1986 respectively. The Court of Appeal held,

inter alia:

"At the present time the rulings that there was no case to

answer show that the allegations have been judicially held to

be without foundation.

It has not been proved, however, that the defendants acted in

bad faith, that is to say with malicious intent, and they had

no good reason to doubt the truth of the allegations.

Indeed, it was not only the defendants who were convinced that

the allegations were true but also eminent academics, including

Professor [MA] ... and Dr [MB], a child psychiatrist, both of

whom were appointed as experts by the investigating judge,

Mr [YE]...

At the Criminal Court hearing on 6 September 1985 ... the

expert [MB] confirmed on oath the content of his report.

That expert, who can hardly be said to lack experience in the

field of child psychology and who studied all the evidence in

the criminal case file, concluded on 28 August 1984 that the

children's statements were credible and put forward several

arguments in support of that view."

On 20 January 1987 the Court of Cassation dismissed an appeal

on points of law brought by Mr X.

1. In the Brussels tribunal de première instance

9. On 17 February 1987 three judges and an advocate-general of the

Antwerp Court of Appeal, Mrs [YA], Mr [YB], Mr [YC] and Mr [YD],

instituted proceedings against Mr De Haes and Mr Gijsels and against

Humo's editor, publisher, statutory representative, printer and

distributor in the Brussels tribunal de première instance

(court of first instance). On the basis of Articles 1382 and 1383 of

the Civil Code (see paragraph 26 below), they sought compensation for

the damage caused by the statements made in the articles in question,

statements that were described as very defamatory (zeer lasterlijk en

eerrovend). They asked the court to order the defendants to pay

nominal damages of one franc each in respect of non-pecuniary damage;

to order them to publish its judgment in Humo; and to give the

plaintiffs leave to have the judgment published in six daily newspapers

at the defendants' expense.

10. In order to safeguard the principle of equality of arms and due

process, the defendants asked the court, in their additional

submissions of 20 May 1988, to request Crown Counsel to produce the

documents mentioned in the disputed articles or at least to study the

opinion of Professors [MA], [MC] and [MD] on the medical condition of

Mr X's children, which had been filed with the judicial authorities.

They gave the following grounds for their application:

"The issue arises whether the defendants, given the factual

evidence available to them, were entitled, within the limits

of press freedom, to publish the impugned criticisms of the

functioning of a judicial body.

...

In the disputed press articles the defendants relied, in

particular, on various medical reports, statements by the

parties and reports by a bailiff.

...

Nor can it be denied that Mr X's libel action against his wife

was dismissed.

Now that it must be determined whether the defendants were

entitled to publish the impugned press articles on the basis

of the information available to them, it is essential for the

proper conduct of the case that Crown Counsel, who is acting

in the case under Article 764-4 of the Judicial Code, should

produce to the Court the documents cited as sources in the

series of articles. These documents are to be found in various

court files.

Any argument as to the lawfulness of the press criticism

presupposes at the least that the Court should be able to study

the opinion of Professors [MA], [MC] and [MD] on the treatment

of X's children, which has been sent to the

judicial authorities.

The opinion of those eminent professors of medicine was the

decisive factor which prompted Humo to publish the impugned

series of articles in such a forceful manner.

The views maintained by the defendants and the language and

descriptions they used cannot be assessed in the abstract but

must be assessed in the light of these data, which go to the

substance of the case.

Thus the European Court held in the Lingens case (judgment of

the ECHR of 8 July 1986, Series A no. 103) that the issue of

the limits of the exercise of freedom of expression had to be

examined against the whole of the background:

'It must look at them in the light of the case as a

whole, including the articles held against the applicant

and the context in which they were written' (paragraph 40

of the judgment).

...

For these reasons ... may it please the Court ... to hold that

it is necessary, for the proper conduct of the proceedings, in

particular in the light of the principle of equality of arms

and due process, to request Crown Counsel to produce the

documents cited in the disputed articles that appeared in the

magazine Humo, or at least to study the opinion of

Professors [MA], [MC] and [MD] on the medical condition of X's

children, which has been filed with the judicial authorities."

11. On 29 September 1988 the court ordered Mr De Haes and

Mr Gijsels to pay each plaintiff one franc in respect of non-pecuniary

damage and to publish the whole of its judgment in Humo; it also gave

the plaintiffs leave to have the judgment published at the applicants'

expense in six daily newspapers. Lastly, it declared the action

inadmissible in so far as it was directed against the other defendants.

The court held, inter alia:

"The plaintiffs are obviously not challenging freedom of

expression and of the press as guaranteed in Articles 14 and 18

of the Constitution and Article 10 para. 1 (art. 10-1) of the

[European Convention on Human Rights]. Equally, the defendants

cannot dispute that this freedom is not unlimited and that

there are certain bounds which cannot be overstepped. As has

already been set out ..., Article 10 para. 2 of the Convention

(art. 10-2) is no obstacle to bringing a civil action under

Article 1382 of the Civil Code where the press has acted

wrongfully.

Article 10 para. 2 of the Convention (art. 10-2) expressly

provides that freedom of the press 'may be subject to such ...

restrictions ... as are prescribed by law and are necessary ...

for the protection of the reputation or rights of others ...

or for maintaining the authority and impartiality of the

judiciary'. The need to protect the plaintiffs' private life

(Article 8 para. 1 of the Convention) (art. 8-1), and more

specifically their honour and reputation, means, in the case

of a press article, that the press must (1) strive to respect

the truth; (2) not be gratuitously offensive; and (3) respect

the privacy of the individual. These criteria are taken up in

the 'Declaration of the Rights and Obligations of Journalists'

drawn up by the International Federation of Journalists.

In the articles in question the defendants make frequent

references to the fact that the plaintiffs had allegedly erred

in their judgment and had shown bias. The defendants accepted

as true, without more, the statement made by Mr X's former wife

and her expert adviser (Professor [MA]), although it was

clearly shown in the reasons set out in the four judgments

given in the case why that statement was not reliable. More

seriously still, in the articles in question the defendants

expressed the opinion that the plaintiffs had to be regarded

as biased, an opinion derived from the fact that they were said

to belong to the influential circle of acquaintances of the

notary and his father, that one of them was the son of a

gendarmerie general who in 1948 had been convicted of

collaboration, that they allegedly had an extreme-right-wing

background and that they were friendly with each other.

The plaintiffs' conduct was vigorously attacked by the

defendants in extremely virulent terms, and the defendants

clearly intended to present the plaintiffs in an unfavourable

light and expose them to public opprobrium. The defendants

sought to give their readers the impression that the plaintiffs

were siding with the children's father and that their judgments

were inspired by certain ideological views. To this end, the

defendants needlessly reminded their readers of the wartime

activities of the father of one of the plaintiffs.

The plaintiffs rightly observed that they cannot simply be put

on a par with members of the legislature or of the executive.

Politicians were elected and the public had to trust them.

Politicians could, moreover, use the media to defend themselves

against any attacks. Magistrats [a term which in Belgian law

covers both judges and members of Crown Counsel offices], on

the other hand, were expected to discharge their duties wholly

independently and dispassionately. Their duty of discretion

meant that they could not defend themselves in the same way as

politicians.

That being so, the defendants committed a fault in attacking

the plaintiffs' honour and reputation by means of irresponsible

accusations and offensive insinuations. The orders sought by

the plaintiffs will provide appropriate redress for the

non-pecuniary damage they have sustained ..."

2. In the Brussels Court of Appeal

12. The applicants appealed against that judgment. In their

submissions of 10 November 1989 they pointed out, among other things,

that the sole purpose of the articles in question had been to criticise

the functioning of the judicial system following the proceedings

conducted by the respondent judges and Advocate-General concerning

possible abuse and incestuous acts suffered by the children. At no

time had they attacked the respondents' private life without reference

to their part in the impugned decision. Mr De Haes and Mr Gijsels

repeated their offer to prove the facts described in the articles and

asked the court to request Antwerp Principal Crown Counsel to produce

the documents they had mentioned, at least those emanating from

Professors [MA], [MC] and [MD] and those from the file on X's divorce,

in particular certain reports and a letter to Principal Crown Counsel

from Professor [MA].

13. The respondents sought to have the judgment of the court below

upheld. In their submission, the applicants' conduct had been all the

more reprehensible and offensive as in an article that had appeared in

Humo on 14 October 1988 (see paragraph 24 below) the applicants had not

only maintained their accusations that the three judges and the

Advocate-General were biased but also criticised by name, in

humiliating terms, the judges who had given the judgment of

29 September 1988 (see paragraph 11 above).

14. On 5 February 1990 the Brussels Court of Appeal affirmed that

judgment, holding inter alia:

"..., as submitted by the prosecution, no action must or can

be taken on the appellants' application to the Court to

'request Antwerp Principal Crown Counsel to produce to the

Court the documents cited in the disputed articles that

appeared in the weekly magazine Humo', and in particular -

under Article 877 of the Judicial Code - 'all the documents

from the X file'.

As already indicated, it is not the Court's task - nor is it

within its jurisdiction - to consider the case already

determined by the Antwerp Court of Appeal, on appeal from the

Youth Court. It follows that the possible course - which is

purely discretionary (Court of Cassation, 2 June 1977,

Pas[icrisie] 1977, I, 1012) - provided in Article 877 of the

Judicial Code of ordering that the documents in question should

be added to the file of the present case would serve no useful

purpose whatever.

The appellants are accordingly bound to admit that they

commented on a court case and besmirched the honour of

magistrats without being in possession of all the necessary

information, and this makes the complete irresponsibility of

their malicious attacks even more flagrant.

They further aggravate their position by offering 'to prove the

facts referred to in the relevant articles by any legal means,

including an examination of witnesses, before the case is

decided' - an offer which not only must be rejected as being

out of time but also clearly indicates - and this is the main

point to be considered here - with what lack of care and

information the articles in question were written and their

accusations made, before the appellants even had sufficient

evidence that they were true.

In the present case the offer in question could not in any way

support the appellants' case; on the contrary, it clearly shows

that the original plaintiffs' arguments were well-founded and

it also lacks the requisite precision.

It is not sufficient for the appellants to offer - as they

nevertheless do - to prove that everything they have written

in the past concerning 'the case' is the truth; it has to be

specified minutely, point by point, what precise and clearly

described fact - 'precise and relevant' in the words of

Article 915 of the Judicial Code - is being offered as

evidence. This is in order to make it possible for the

opposing side to adduce rebutting evidence and to enable the

Court to assess the relevance and importance of the facts

adduced; the appellants did not even take the trouble to comply

with this requirement.

Furthermore, the Court already has before it all the

information necessary to enable it to decide, in full knowledge

of the facts, whether there has really been defamation.

...

As regards the merits of the case, the court below, for ...

relevant reasons that have not been refuted and with which this

Court agrees, held that the original claim against the

appellants was well-founded because the appellants had

undeniably committed a gross fault in casting serious slurs on

the honour and reputation of the original plaintiffs by means

of unjustified accusations and offensive insinuations.

Freedom of expression and of the press as guaranteed in

Articles 14 and 18 of the Constitution and Article 10 para. 1

(art. 10-1) of the [European Convention on Human Rights] is not

unlimited; certain bounds must not be overstepped and, as has

already been pointed out, it is even possible, under

Articles 1382 and 1383 of the Civil Code, to bring an action

for damages where the press has acted wrongfully.

Moreover, in relation to the tort in question, Articles 443

et seq. of the Criminal Code also refer to acts which may

injure a person's honour or expose a person to public contempt.

Defamation of public authorities is punishable in the same way

as defamation of individuals. Such defamation was precisely

what the original plaintiffs in this case complained of and

they undeniably constitute unlawful 'acts', as referred to in

Article 1382 of the Civil Code, 'that cause damage to another'.

There is no basis for the appellants' contention that

'Article 443 of the Criminal Code is the sole provision in

Belgian law which authorises the courts to restrict freedom to

hold opinions with a view to protecting the honour and

reputation of others; neither Article 764, 4, of the

Judicial Code nor Article 1382 of the Civil Code does so'.

According to that argument, the press, and it alone, is not

subject to the ordinary, general rule in Articles 1382 and 1383

of the Civil Code, which impose a duty on 'everyone' to act

lawfully and make everyone responsible for any damage caused

through his own 'act', 'failure to act' or 'negligence'.

Under Article 10 para. 2 of the Convention (art. 10-2), freedom

of the press may be subject to such restrictions as are

prescribed by law and are necessary, as in the instant case,

for the protection of the reputation or rights of others or for

maintaining the authority and impartiality of the judiciary.

Pursuant to Article 8 para. 1 (art. 8-1) of the Convention for

the Protection of Human Rights and Fundamental Freedoms, the

guarantee of respect for private life requires that press

articles should be truthful, must not be gratuitously offensive

and must respect the privacy of the individual, criteria which

were taken up in the 'Declaration of Rights and Obligations of

Journalists' drawn up by the International Federation of

Journalists and approved by the journalists of daily newspapers

in different countries of the European Community in Munich on

24 and 25 November 1971, where Belgium was represented by the

Professional Union of the Belgian Press.

The appellants cannot in any way rely on Article 19 of the

UN Covenant or of the Universal Declaration, since these

similarly make no reference to unlimited freedom of expression.

Furthermore, the appellants did not explain, and it cannot be

discerned, why the generally applicable concept of fault,

expressly provided in Articles 1382 et seq. of the Civil Code,

should be incompatible with Articles 8 para. 1 and 10 para. 2

of the Convention (art. 8-1, art. 10-2) (whose precedence is

not being called into question here) in relation to

restrictions on freedom prescribed by law and the protection

of private life, which is at issue here; nor why only

journalists should not be subject to those provisions.

In this connection, the Court wholly agrees with the relevant

reasons set out in the judgment of the court below, which it

adopts in their entirety.

...

Admittedly, the European Court of Human Rights held in the

Bruno Kreisky case that the Austrian journalist Lingens, who

was concerned in that case, had attacked Mr Kreisky exclusively

as a politician and consequently had not violated his right to

respect for private life. In the instant case, on the

contrary, that right was well and truly - indeed grossly -

challenged by the appellants.

The words used and the insinuations and imputations made in the

articles and passages in question are extremely virulent and

dishonouring, since the original plaintiffs, referred to by

name, were accused of having been biased as senior magistrats,

and it was gratuitously insinuated that they had links with the

VMO [Vlaamse Militanten Orde] and that they came from an

extreme-right-wing background and belonged to the circle of

friends of the children's father - who was also, in the

appellants' opinion, extremely right-wing - so that the

judicial decisions made by the original plaintiffs in respect

of the children's custody were only to be expected - all this

without any serious and objective evidence whatever being

adduced or existing to show that the accusations against these

magistrats had any factual basis.

...

The appellants manifestly intended to give their readers the

impression that the judges and Advocate-General concerned had

sided with one of the parties to the case and, furthermore,

that their judgments were inspired by certain ideological

views.

Additionally, they needlessly and in a quite uncalled-for

manner reminded their readers of the wartime activities of the

second respondent's late father, which the second respondent

had absolutely nothing to do with and which - despite the

appellants' opinion to the contrary - belong exclusively to the

protected sphere of private life.

Even if the appellants believed that certain ideological views

could be ascribed to the respondents (views which they have

failed to prove that the respondents held), they cannot in any

event be permitted purely and simply to infer from those

views - even if they had been proved - that the judges and the

Advocate-General were biased and to criticise that bias in

public.

In none of these suspicions or pieces of gossip directed

against the judges and Advocate-General who brought the

original action is there a shred of truth, and the applicants

even lied in their article of 6 November 1986 (p. 19) when they

stated that the case decided by those judges had been withdrawn

from them by the Court of Cassation, whereas they have now had

to admit in their additional pleadings (p. 6) that

'Principal Crown Counsel at the Court of Cassation refused to

order that the case should be transferred to another court

(under Article 651 of the Judicial Code)'.

On 6 November 1986 they announced: 'Last Thursday the Wim and

Jan case took a dramatic legal turn. On an application by

Principal Crown Counsel ..., the Court of Cassation withdrew

the X case from the Antwerp court and transferred it to the

Ghent tribunal [de première instance] in the hope that the

Ghent magistrats would adopt a less biased approach ...'

Admittedly, they went back on this point on 27 November,

writing: '... Our prediction of a fortnight ago that the

agonisingly slow progress being made in the Wim and Jan case

was likely to leave the case stranded in the Antwerp courts has

come true. In the teeth of all the evidence, the

Court of Cassation has held that the Antwerp judiciary cannot

be accused of any bias in this incest case and that the whole

case can therefore continue to be dealt with in Antwerp ...'

False reports of this kind, however, caused the original

plaintiffs irreparable damage, since to be accused of bias is

the worst possible insult that can be levelled at a magistrat.

The exceptional virulence of the appellants' irresponsible

criticisms can probably be explained - but not excused - by

certain political quarrels (which, indeed, do not serve the

interests of justice), as was acknowledged by the appellants

themselves in the 12 February 1987 issue of Humo: '... If any

further proof were needed of behind-the-scenes intrigues in the

case of Mr X and of the fact that political allegiances are

definitely playing a role, this (premature?) leak to the press

is one of the most persuasive pieces of evidence ...'

Because of the unacceptable way in which they were attacked in

the impugned articles, the original plaintiffs were shown in

a particularly unpleasant light and their honour and reputation

were seriously undermined by insulting statements which without

any doubt went far beyond what the appellants described as

'their ability to take flak'.

The appellants in fact nevertheless consider their aggressive

style and offensive disparagements justifiable in a little

paper like Humo, which they describe as 'clearly critical and

anti-bourgeois'.

However, although, when ruling on the defamatory nature of

contributions published in a magazine of this kind with a clear

critical stance towards bourgeois society, one must not apply

the same criteria as when ruling on libellous articles in an

'ordinary' newspaper, it nevertheless remains true that even

in an avowedly critical magazine certain standards must be

respected when criticisms are made, certain bounds must not be

overstepped and it is not permissible to publish false

information and unproved accusations with the clear aim of

humiliating and wounding particular persons, as to do so

undeniably amounts to an abuse of press freedom.

While people are certainly entitled to be 'anti-bourgeois' (?),

this does not authorise them to pour out pure gossip to the

public - however limited their readership - by writing, for

example: 'The Advocate-General [YD] has since very properly

been removed from this case for having exceeded his authority'

(Humo, 17 July 1986, pp. 6 and 7).

Nevertheless, although the appellants have now, in their

additional submissions, backed down and, saying that their

earlier statement that the Advocate-General had been 'removed'

had been a 'personal interpretation' of the 'fact that at a

given point he had ceased to sit', such an 'interpretation'

should impel these 'journalists' - however particularly

'personal' their style may be - to practise their profession

in future in a less unscrupulous manner.

In the 14 October 1988 issue of Humo (p. 15) - that is to say

during the present proceedings and although they had announced

in the same short piece that they would be appealing - the

appellants made their position considerably worse still by

again accusing the original plaintiffs of bias and criticising,

in similarly degrading terms, the judges who delivered the

judgment at first instance, who were mentioned by name.

This article stated, among other things: '... The

Vice-President, [YF], and the other judges, [YG] and [YH],

dealt with the case carelessly (sic) ... We wonder whether

their Lordships actually read Humo's submissions ... But at

no time has Humo ever brought up anything to do with the

judges' private lives (sic) ... Clearly, the Brussels judges

[YF], [YG] and [YH] did not manage to give judgment with the

necessary detachment and independence on their fellow judges

of the Antwerp Court of Appeal. They are thus adhering to the

line of biased judgments ...'

This could be interpreted as a particularly misplaced and

culpable attempt to influence [the members of this Court],

especially as the appellants predict, through counsel in their

pleading (p. 27), that no newspaper will be prepared to publish

the present judgment, a step that has in any case not been

sought.

As regards the question of the case having been dealt with

'carelessly', the appellants have still not grasped that

usually - and rightly - the courts must attach greater weight -

as they did in the instant case - to the findings of expert

witnesses that the courts themselves have appointed and who

have no connection with the litigants and whose objectivity

therefore cannot be called in question by either of the parties

rather than - as the appellants do - to the parties' own

experts, whose investigations, assessments and findings,

however, form the main or even sole evidence on which the

appellants believe they are entitled to rely to make their

attacks.

As is unfortunately only too often to be found, notably in

court cases, even excellent university professors and

specialists - in the instant case no fewer than three on each

side - disagree among themselves and, particularly in the

fields of psychology and psychiatry, hold diametrically opposed

views - of which each claims to be 100% certain; this should

prompt everyone - particularly journalists - to refrain from

making accusations of bias - that is to say the most serious

of all - against judges who have to make the final decision on

issues as thorny as the custody of children, where strong

passions are always aroused, and who must necessarily prefer

one of the different versions put forward by the parties to the

proceedings.

In the instant case the appellants dared to go one step further

by maintaining, without a shred of evidence, that they were

entitled to infer the alleged bias from the very personalities

of the judges and the Advocate-General and thus interfere with

private life, which is without any doubt unlawful.

Furthermore, the purpose of the present proceedings is not to

decide what ultimately was the objective truth in the case that

the original plaintiffs finally determined at the time but

merely whether the comments in issue are to be considered

defamatory, which is not in the slightest doubt.

Although the appellants refused to acknowledge the fact,

magistrats cannot be unreservedly put on the same footing as

politicians, who can always adequately and promptly defend

themselves, orally or in writing, against reprehensible

personal attacks and are therefore less vulnerable than a

magistrat, who is neither able nor entitled to do likewise.

The status of a magistrat is radically different from that of

all other holders of public office and of politicians and is

in no way based on privileges or traditions but on the fact

that it is necessary for the administration of justice, which

entails particular tasks and responsibilities (see the speech

delivered by F. Dumon, formerly Principal Crown Counsel at the

Court of Cassation, at the opening session of the new

judicial term on 1 September 1981, 'Le pouvoir judiciaire,

inconnu et méconnu', p. 64).

Given the discretion incumbent upon them by virtue of their

office, magistrats cannot defend themselves in the same way as,

for example, politicians, if certain newspapers, apparently

hungry for lucrative sensational stories, attack them and drag

them through the mud.

Purely political cases are precisely what most of the case-law

and legal opinion cited by the appellants in this connection

relates to, however, and it is therefore not relevant to the

instant case.

Unlike a politician, a judge cannot discuss in public a case

pending before him with a view to justifying his conduct, so

that [the original plaintiffs'] failure to exercise their right

of reply certainly cannot be held against them by the

appellants (see Ganshof van der Meersch, formerly

Principal Crown Counsel at the Court of Cassation,

'Considérations sur l'art de dire le droit', esp. p. 20); this

duty of discretion has again recently been referred to by the

Court of Cassation (Court of Cassation, 14 May 1987,

[Journal des Tribunaux] 1988, p. 58)."

3. In the Court of Cassation

15. Mr De Haes and Mr Gijsels applied to the Court of Cassation,

which dismissed their appeal on points of law on 13 September 1991

(Pasicrisie 1992, I, p. 41).

16. In their first ground of appeal, they alleged a violation of

the right to an independent and impartial tribunal, relying, in

particular, on Article 6 para. 1 of the Convention (art. 6-1). In

their submission, certain passages of the Court of Appeal's judgment

raised legitimate doubts as to the impartiality of those who had

written it. This was true, for instance, of the words "a little paper

like Humo", the word "sic" in the extract from the article of

14 October 1988 (see paragraph 24 below) concerning the judgment of

29 September 1988 (see paragraph 11 above), a number of punctuation

marks, such as the question mark after the term "anti-bourgeois", and

the statement that the article of 14 October 1988 was "a particularly

misplaced and culpable attempt to influence [the members of the

Court of Appeal]". The applicants also complained that due process had

been disregarded in that, as they alleged, the Court of Appeal had

referred to the article of 14 October 1988 of its own motion without

their having been able to defend themselves on that point.

The Court of Cassation rejected this ground, considering that

"it could not be inferred from the mere fact that in their decision the

appellate judges had shown that they preferred the arguments of one of

the parties and disapproved of those of the other parties that there

had been an infringement of the statutory provision and general

principles relied on in this limb of the ground of appeal". As to the

article that had appeared in Humo on 14 October 1988, the appellate

judges had not referred to it of their own motion, since the

respondents to the appeal on points of law had mentioned it in their

submissions to the Court of Appeal.

17. In their second ground of appeal Mr De Haes and Mr Gijsels

complained of a violation of Articles 8 and 10 of the Convention

(art. 8, art. 10). In finding against them on the basis of the general

concept of fault in Articles 1382 and 1383 of the Civil Code, the

Court of Appeal had, they said, made their freedom of expression

subject to formalities, conditions, restrictions and penalties not

prescribed by "law" within the meaning of Article 10 para. 2 of the

Convention (art. 10-2) (first limb). Furthermore, by holding that

press articles must strive to respect the truth, must not be

gratuitously offensive and must respect the privacy of the individual,

the Court of Appeal had created restrictions which went beyond what was

strictly necessary in a democratic society; public discussion of the

functioning of the judicial system was of greater importance than the

interest of magistrats in protecting themselves from criticism

(second limb). Lastly, the evidence in the file did not justify the

Court of Appeal's finding that the articles in dispute had disregarded

the aforementioned restrictions (third limb).

The Court of Cassation dismissed this ground of appeal, holding

in particular:

"As to the first limb:

In reaching the conclusion that the appellants are liable for

the consequences of their press articles, the Court of Appeal

based its judgment not only on the finding - partly cited in

this limb of the ground of appeal - that the appellants had

committed an unlawful act and that they 'did not explain, and

it cannot be discerned, why the generally applicable concept

of fault, expressly provided in Articles 1382 et seq. of the

Civil Code, should be incompatible with Articles 8 para. 1 and

10 para. 2 of the Convention (art. 8-1, art. 10-2)' but also

on the undisputed finding, rightly raised by the respondents,

that the appellants had been guilty of defamation as defined

in Articles 443 et seq. of the Criminal Code.

The Court of Appeal's judgment sets out reasons (not challenged

in this limb of the ground of appeal) for the finding that the

appellants had committed a fault within the meaning of

Article 1382 of the Civil Code.

This limb cannot justify quashing the judgment of the court

below and is accordingly inadmissible, as argued by the

respondents.

As to the second limb:

Under Article 10 (art. 10) cited above, the exercise of the

right to freedom of expression may be subject to the

restrictions or penalties necessary in a democratic society for

the protection of the reputation or rights of others or for

maintaining the authority and impartiality of the judiciary.

When asked to punish a given abuse of freedom of expression

affecting members of the judiciary, the courts must endeavour

to maintain a fair balance between the requirements of freedom

of expression and the restrictions applicable under Article 10

para. 2 (art. 10-2) of the aforementioned Convention.

In the instant case the Court of Appeal based its decision that

the appellants had abused the freedom of expression secured in

Article 10 para. 1 (art. 10-1) of the Convention for the

Protection of Human Rights and Fundamental Freedoms not only

on the need to protect the respondents' private life but also

on the unchallenged grounds that the accusations made had not

been proved, the criticism had been directed against named

judges, the matters relied on were irrelevant to the decisions

that had been taken and the accusations had been inspired by

a desire to harm the respondents personally and damage their

reputation.

In holding, as appears from the text of its judgment, that,

'pursuant to Article 8 para. 1 (art. 8-1) of the Convention for

the Protection of Human Rights and Fundamental Freedoms, the

guarantee of respect for private life requires that

press articles should be truthful, must not be gratuitously

offensive and must respect the privacy of the individual', the

Court of Appeal took the view that a balance had to be sought

between the interests of a free press and private interests;

it did not thereby decide that the general interest of a public

discussion of the functioning of the judiciary was less

important than private interests, nor did it add any

restriction to the exceptions exhaustively set out in

Article 10 para. 2 (art. 10-2).

This limb of the ground of appeal cannot be allowed.

As to the third limb:

Regard being had to the foregoing considerations, the

third limb lacks any basis in fact."

18. In their third ground of appeal the applicants complained of

the Brussels Court of Appeal's refusal to take into consideration all

the evidence that had been before the Antwerp Court of Appeal and to

allow them to prove by any means the truth of their assertions. In

their submission, Articles 6 and 10 of the Convention (art. 6, art. 10)

had thereby been contravened.

The Court of Cassation held:

"The Court of Appeal decided not to grant the appellants'

application for leave to prove the truth of their accusations;

in particular, it refused to order that the files of the cases

which had given rise to the decisions criticised in the press

should be admitted in evidence.

It based its decision not only on the grounds cited in the

ground of appeal but also on separate, undisputed findings:

that the appellants had admitted besmirching the reputation of

magistrats without being in possession of all the necessary

information, which in itself constituted a fault; that the

offer to bring evidence was out of time and ineffective; and

that the Court of Appeal had before it all the information

necessary to enable it to decide, in full knowledge of the

facts, whether there had really been defamation.

This ground of appeal cannot justify quashing the judgment of

the court below and is accordingly inadmissible."

B. The articles in issue

19. The judgments against Mr De Haes and Mr Gijsels related to

five articles that appeared in Humo (see paragraph 7 above). The first

of these, published on 26 June 1986, included the following:

"...

Today, Thursday 26 June, the courts are due to rule in the

long-running case of a well-known Antwerp notary who has been

sexually abusing his two young sons. The notary himself comes

from a distinguished Flemish family with close links to the

most select financial circles in the country. All the

indications are that the reputation of the father and

grandfather count for more than the physical and mental health

of the children. Up to now, the court has rejected, without

batting an eyelid, all medical and psychiatric reports

unfavourable to the notary.

How can this be? Louis De Lentdecker has already written about

this case in De Standaard, albeit in veiled terms. However,

he was promptly taken to task by the Antwerp Advocate-General

on the ground that his report had 'seriously compromised' the

children's father. Yet De Lentdecker had mentioned absolutely

no names. For our part, we will also refrain from mentioning

the father's name or those of the two under-age children (for

convenience, we will call the three-year-old boy 'Wim' and the

six-year-old 'Jan' and give the family's surname as 'X'). For

the rest, we have every intention of mentioning the other names

involved as this is not the first time that the Antwerp courts

have shown a lack of independence and given extremely odd

judgments.

This report is not for those of a sensitive disposition. We

put the facts to a psychologist working in a centre for

psychological, medical and social therapy, a magistrat, a

paediatrician and two lawyers, none of whom has anything to do

with the case. Each of them, independently of the others,

advised us to report on the case in the interests of the

children.

...

After Jan was born, things started to go wrong within the

family. The husband was having affairs and even had another

home. Divorce proceedings are filed in October 1983. The

mother is awarded interim custody of the children; the father

is given fortnightly access. At the end of 1983 the children

return home after spending the Christmas holidays with their

father; their mother finds them in a state of total exhaustion.

Her paediatrician, Dr [ME], diagnoses them as having been

overtaxed. While playing, the elder boy tells a story from

which it is apparent that his father has raped him. Dr [ME]

is notified and advises the mother to consult a forensic

medical examiner.

The same thing happens on 8 January 1984.

Following her paediatrician's advice, the mother tries to

consult a forensic medical examiner, but he advises her to see

a general practitioner first. There is no answer when she

rings Dr [ME], so she turns to the duty doctor, [MF]. He finds

that the elder boy has an 'irritation of the anus' and refers

the mother to a paediatrician in Malines, Dr [MG]. He in turn

observes the following injuries to the elder boy: 'slight

anal fissure, pronounced redness around the anus, rectal smear

showing presence of sperm'. That evening, at his request,

Dr [ME], the paediatrician, re-examines the children and, given

the seriousness of the situation, refers them to Dr [MH], of

the Mental Health Centre.

On the basis of these medical reports, amongst other things,

Judge [YI] of the Antwerp tribunal de première instance, acting

on an urgent application, decides on 29 January 1984 to suspend

the father's right of access.

However, on 31 January the Third Division of the Antwerp Court

of Appeal restores the notary's right of access, although the

children are not to spend the night at his home and access has

to take place in the presence of the grandparents.

The nightmare begins, not only for the children, but also for

their mother.

...

On 4 February 1984, for the first time in four weeks, the

notary has an access visit. At 10 o'clock in the morning he

picks up the children in Malines, returning them to their

mother at around 6.30 p.m. In a report the mother, shocked and

bewildered, says: 'State of the children: distraught. Wim

(aged 3) lies down on the ground and sobs. Jan (aged 6) sits

down apathetically on a chair. He has visible clinical

injuries: a very painful mouth, which he cannot close, severe

swelling of the lower lip and problems with his eyes; four of

his upper teeth come out at once; he also has a swelling of the

neck below the left ear, a reddish irritation of the cheeks and

scratches on the left cheek.' Her lawyer urges her to report

the matter to the police at all costs, but she thinks there is

no longer any point. In her statement she writes,

despairingly, 'I did not want to, seeing that the gendarmerie

were so sympathetic to the family and that I had already

discovered from experience that the gendarmes did not take me

seriously where the children were concerned.'

...

The mother's despairing protests are to no avail. On

18 February, 26 February and 3 March 1984, the father rapes his

children again.

Enough is enough. On 6 March 1984, at the request of

Malines Crown Counsel, Detective Sergeant Luc R. interviews

little Jan. A tape recording of the interview is filed with

the Malines Criminal Court. We have seen the transcript of

this interview. In childish words, but coherently and without

contradicting himself, Jan describes sexual acts performed by

his father on him and on his brother, who is even younger. The

content of this interview is far too sensitive for us to

reproduce it here.

...

The mother no longer has any alternative. Since her urgent

request for a renowned expert to be appointed has twice been

rejected, she herself calls in the child psychiatrist [MA], a

professor at the Catholic University of Louvain. On 6 and

11 April he examines the children and finds that during the

weekend of 8-9 April the father has again ill-treated and raped

his children. According to Professor [MA]'s findings, the

children's story essentially corresponds to what is stated in

the mother's complaint. Moreover, the children reveal certain

details to him which even the mother has not mentioned and

which her children manifestly cannot have invented.

Professor [MA] concludes: 'We are convinced that the children's

visits to their father are manifestly likely to have an adverse

effect on their future development. It is already clear that

the immediate effect of access is that the children are

extremely upset and disorientated; after the two days spent

with their father, they present as anxious and aggressive. If

these visits continue, we fear that both children may develop

problems, in the nature of mental illness in the case of the

elder and, in the case of the younger, a tendency to regress,

with arrested development. We therefore request that the

children should undergo a thorough psychiatric examination;

that all the parties, including the father, should be

interviewed; and that, pending this examination, the father's

right of access be temporarily withdrawn.'

On 28 May 1984 Professor [MA] sent a detailed report on the

case to Principal Crown Counsel [YJ] and the

Advocate-General [YD]. It is an impressive document recording

the results of a number of psychiatric examinations of the

children in the form of interviews (both with and without the

mother present). The children were examined both immediately

after an access visit and at less stressful times during the

week. Professor [MA] concluded: 'The two children confirm,

independently of each other, the various types of sexual abuse

which have been inflicted on them.' Could the mother have

coached the children in these stories? Professor [MA] says

'Jan's version of events always coincides with his mother's.

I see this in itself as an indication that Jan's story reflects

real experiences. A child of six does not in fact yet have the

intellectual capacity, in the context of a guided interview,

to faithfully reproduce, exactly as it has been told to him,

a story which he has been "fed". Furthermore, there were times

when Jan replied to very specific questions with equally

specific answers, which he had never given his mother (and

which his mother had therefore never mentioned). Thus when

asked whether "he bites the willy when it comes into his

mouth", he answers, very specifically: "I can't, because he

(the father) puts his fingers between my teeth." I do not

consider that a six-year-old child is capable of inventing so

specific a response, nor do I believe that such specific

responses could have been "prepared" in advance by the mother.'

On 22 June Professor [MA] sent a supplementary report to

Principal Crown Counsel [YJ] and the Advocate-General [YD].

In it the child psychiatrist confirms his earlier findings with

the aid of even more convincing arguments and again calls,

insistently, for a judicial investigation and a further

expert psychiatric report. But to no avail. The unthinkable

happens: three days later the Third Division of the

Antwerp Court of Appeal grants Mr X custody of his children.

The court holds, inter alia: 'An expert opinion is not required

and, indeed, is not desirable in that the expert would

inevitably find himself faced with the issue of fault, which

must be left to the courts alone to decide.' Those responsible

for this extremely odd judgment are [YA] (the presiding judge),

[YC] and [YB] (the other judges) and [YD] (the

Advocate-General).

...

In July, pursuant to the custody award in his favour, the

notary has the children staying with him; they are again raped.

In a tape-recorded interview Jan tells Professor [MA] that his

Daddy has done 'the same thing' again, that Daddy 'thumped' him

and hit him on his tummy and that he wasn't allowed to tell

anyone about it. Jan doesn't know how many times his father

has raped him - 'several times, I can't count them'.

Professor [MA] sends his umpteenth letter on the matter to

Principal Crown Counsel [YJ], stating, without mincing his

words: 'In an emergency the State is bound to intervene under

section 36 (2) of the Child Protection Act ... It is

impossible and unacceptable for two children to remain exposed

to an extremely dangerous situation as a result of a

court decision.'

All Professor [MA]'s findings are subsequently confirmed in 'an

expert report' by Dr [MB], a child psychiatrist and

psychoanalyst appointed by the investigating judge [YE] of the

Malines tribunal de première instance. The following few

extracts from Dr [MB]'s report may suffice: '(1) After a little

embarrassment Jan nevertheless finds it fairly easy to talk

about his experiences with Daddy. His clearest memory is of

the events of July 1984. He describes how Daddy sometimes used

to sit on him, how Daddy used to put his sexual organ into his

anus, or sometimes his mouth, and wee-wee. He says that Daddy

threatened him, saying that he would saw Grandma and Grandpa

in half, and really hurt Jan, if he said anything about it all.

He says that Daddy didn't act like that when Daddy and Mummy

were still together, Daddy just used to hit him; (2) Jan

describes these experiences fairly readily and there are no

contradictions in what he says. However, he presents as

shocked and embarrassed when recounting certain things. He

blushes and sometimes protests vigorously that Daddy was

hurting him. He does not give the impression of making things

up or merely seeking attention.'

Psychoanalysis of Jan's emotional life reveals, moreover, that

the little boy is constantly anxious and traumatised. The

findings concerning the younger child are similar. According

to Dr [MB], 'His [Wim's] fantasies create a strong impression

that there has been sexual abuse by the father and that his

unconscious is trying to assimilate these uncomfortable

impressions.'

In October little Wim is again interviewed by

two detective sergeants and his (female) schoolteacher. The

interview takes place in Wim's usual classroom, in the presence

of the headmistress. The child repeatedly confirms what has

happened to him. The interview was transcribed verbatim and

the tape filed as an exhibit at the

Malines tribunal de première instance.

...

How can a father reach the point of committing such atrocities

against his own children? In his report Professor [MA] says:

'The problems between husband and wife became more serious

after Jan was born. It was then that X, for the first time,

overtly displayed his sympathies with Hitler. Thus, for

example:

· The family had to live according to Hitler's principles:

women do not count - at most, they are instruments of

procreation. Anyone who fails to become an "Übermensch"

(superman) had better die. An "Übermensch" can legitimately

lie and be dishonest. [X] is in fact awaiting the coming of

a new Hitler. His whole way of life is dominated by that.

· The children were to be brought up in Hitler's doctrine.

They were made to give the Nazi salute; they were taught not

to play but only to fight and make war. The children were to

venerate their father just as the German people venerated

Hitler at the time; their mother is merely an intruder in the

X family.

· Lastly, it is worth noting that Mr X has also declared on

several occasions that he possesses supernatural powers and can

crush anyone who opposes him. In particular, he says "We are

leeches, we squeeze someone like a lemon, then we drop them."

He certainly feels very powerful. He has also spoken to the

children on several occasions about his "supernatural powers",

saying that he was going to change Jan into a brown sheep and

leave him in a field and that he was going to change little Wim

into an owl. He also used to talk to the children a lot about

skeletons and skulls. As a result, little Wim once asked his

mother out of the blue "not to put him under the ground in a

box".'

Professor [MA] ends his remarks on the father thus:

'His manifest sympathies with Hitler and his regime, and his

fantasies concerning his own supernatural powers and

omnipotence reveal, at the very least, in my opinion, a

pathological personality. I accordingly consider that a much

more thoroughgoing judicial investigation and

psychiatric report are imperative in this case.'

...

The X family's almost daily contacts with the legal world are

not enough to explain how he has remained almost immune. The

large network of contacts which the family has woven over the

years is proving useful in this respect, especially their

contacts in extreme-right-wing and/or

Flemish nationalist circles. For example, members of the

X family are militants in the Stracke Noodfonds, the

Marnixring, the Orde van de Prince, the Vlaamse Kulturele

Produkties (an offshoot of Were Di), the Nationalistich Jong

Studenten Verbond (NJSV) and the Vlaams Blok. It is a

well-known fact that the X family gives financial support to

the VMO. In 1971 they helped create the 'new' VMPO under

Bert Eriksson, and at the time of the VMO trials they launched

an appeal through the Stracke Noodfonds for members to make a

financial contribution in support of 'dozens of young

Flemish people facing ridiculous penalties and fines'.

Witnesses confirm that the cellar of the X family's house is

decorated with Nazi swastika flags, the ideal décor for

nostalgic little 'brown' parties. Equally remarkable are the

X family's efforts in support of apartheid. One of the members

of the family was even a founder of the pro-South-African club

Protea. Why is this network of contacts so important in the

notary's incest case?

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: he had, in close collaboration with the

'Feldgendarmerie', restructured the Belgian gendarmerie along

Nazi lines. [YB] is no less controversial as a magistrat.

During the judicial investigation into the VMO training camps

in the Ardennes, he managed, in the teeth of all the evidence,

to sustain the theory that the photographs of the training camp

had nothing to do with the VMO but came from German neo-Nazis.

Another judge in this incest case is [YA]; she is the President

of the Antwerp Court of Appeal. During the VMO trial, over

which she presided, the organisation was acquitted on the

charge of constituting a private militia. This judgment was

subsequently reversed by the Ghent Court of Appeal.

And then there is Principal Crown Counsel [YJ], whom

Professor [MA] has bombarded with reports denouncing the

sexual abuse of the children. It just so happens that

Principal Crown Counsel [YJ] has the same political sympathies

as the X family. He was one of the founders of Protea but had

to resign after a question was asked in Parliament. He is

still a member of the Marnixring and of the Orde van de Prince

in Malines, with both of which the X family maintains very

special links.

Since the very beginning of the investigation the gendarmerie

too have played a dubious role. The abused children and their

mother have consistently been treated like dirt, whereas the

notary accused of incest and his father have been treated with

the greatest consideration. Is it a coincidence that the

X family maintains contacts with several of the (present or

past) bigwigs of the gendarmerie: former

Lieutenant-General [ZC] (Protea and the Orde van de Prince),

General [ZD] (the Marnixring) and General [ZE] (the Marnixring

and Orde van de Prince)?

...

The children are not in good shape. They are receiving

treatment and, according to well-informed sources, are still

'at risk'. There are only two possible solutions. Either the

prosecuting authorities have the courage, in the light of

recent events and findings, to prosecute the notary or else the

Youth Court must begin new proceedings with a view to restoring

custody to the mother. This last point is not unimportant

since Mrs X has been summoned to appear before the

Antwerp Court of Appeal on 26 June on the grounds that she has

twice attempted to keep the children with her at the end of an

access visit.

In the meantime, the mother and her parents have been duly

acquitted on appeal in proceedings instituted against them by

the notary for making a defamatory witness statement. They had

already been acquitted at first instance. There are only

two possibilities: either the mother's complaint is defamatory

or it is not, in which case the notary is guilty of incest.

There is no other possibility."

20. Mr De Haes and Mr Gijsels published their second article on

17 July 1986. It included the following:

"...

On Tuesday 24 June Humo published in issue no. 2390 an article

that caused a sensation: 'Incest authorised in Flanders'. In

that article Mr X, a notary from a distinguished Flemish family

with close links to the highest financial circles in the land,

was accused of having repeatedly raped and beaten his little

boys, Wim and Jan. Those allegations were supported by a

number of medical and psychiatric reports. Despite the

evidence, the notary was awarded custody of the children.

In the report, we paid due attention to the dubious role played

by the gendarmerie and the network of extreme-right-wing

contacts maintained by the X family, whose tentacles have

reached the Antwerp law courts. This network of contacts is

principally centred on staunch brown organisations like the

VMO, Protea, the Stracke Noodfonds and the Marnixring. We also

showed how Judges [YJ], [YA] and [YB] - who saw to it that the

father gained custody - fitted into and around these shady

movements.

From the large number of letters we have received, it appears

that half Flanders is shocked by such warped justice. The same

question comes up again and again: what kind of a country are

we living in? In the meantime, we have obtained even more

information about what some of the most highly placed circles

have been allowed to get away with, hand in hand with their

lackeys in the courts and the gendarmerie.

...

Humo had hardly come off the presses when Mr X personally

telephoned one of the authors of the article to say, in a

threatening tone: 'I am not a pederast. I am not a paedophile.

The time will come when you will apologise to me!!!' And then

he hung up.

In the course of the legal proceedings, Mr X has devoted

himself to making even more brutal intimidation attempts. For

instance, he assaulted one of his children's uncles in broad

daylight on the Meir in Antwerp. When the children's mother

was acquitted of libel, he hurled abuse at her counsel within

the precincts of the Antwerp law courts and in front of other

people. His own counsel had to intervene to calm him down. One

of the doctors who had found evidence of sexual abuse received

a registered letter threatening him with criminal libel

proceedings unless he withdrew the findings in his examination

report. At least one other doctor has been bombarded with

letters containing the crudest threats. The journalist

covering the Antwerp Court of Appeal hearing on 26 June was

pursued by the notary when he went out for some fresh air

during a brief adjournment. The reporter had no choice but to

escape by running between the fairground stalls of the

Whitsun fair.

The management of Humo and of the Dupuis publishing house have

also been put under strong pressure. The X family were tipped

off that an article was about to be published concerning the

incest case. What happened? The printing was held up for

hours, but the article was nevertheless published.

...

This kind of brutal pressurising seems to 'work' very well

within the system of justice. After the article was published,

a mass of new information came in from all sorts of quarters.

This unique incest case has been gathering notoriety for quite

some time, not only in the professional circles of

paediatricians and child psychiatrists but also in

Crown Counsel offices, the youth courts and children's refuges.

Thanks to the fresh data, we now have an even better picture

of how often and how treacherously the courts have manipulated

the case - with, up to now, only one apparent aim: to promote,

not the welfare of the children, but that of the notary.

...

· Likewise accepted were the results of an hour's

questioning by Detective Sergeants [ZF] and [ZG], during which

Jan was once again forced to withdraw his accusations.

Louis De Lentdecker, who was on the spot when Jan came out,

wrote in De Standaard: 'He started crying, sobbing. He was

completely distraught. Shaking with sobs, he said that he had

been questioned again by two men, that he had said that none

of it was true because he had been afraid and that he didn't

want to go home to his father's but wanted to stay with his

mother. And he clung to his (maternal) grandmother, crying his

heart out.' What credibility can such an interview have? One

of the statements obtained under duress certainly does not fit:

according to [interview record] no. 2873, Jan stated that he

had never seen his father naked. The notary himself told

Louis De Lentdecker: 'It is said I used to stand around naked

in front of them. There were evenings when the children would

come rushing into the bathroom while I was having a bath. When

that happened, I would send them out straight away.'

Interviewed by [MN], a psychiatrist, the notary, anxious to

defend himself, was even more categorical: 'Prior to the

divorce, there were a few times when the children came upon X

naked in the bathroom. It is understandable that the

children's attention was particularly attracted to the

genitals.'

Is it also a coincidence that Detective Sergeant [ZG] and his

wife were the notary's guests for Easter lunch?

· In the middle of 1984, following a private meeting with

Principal Crown Counsel [YJ] and the Advocate-General [YD],

Professor [MA], a well-known child psychiatrist, is informally

given the job of studying the criminal case file in detail. To

this end, Principal Crown Counsel's office sends him the

various typescripts and tapes of the questioning sessions.

Professor [MA]'s conclusions are contained in a number of

reports sent to Principal Crown Counsel and the

Antwerp Court of Appeal. His provisional conclusions are

contained in a report of 22 June - just in time, as judgment

is due to be given on 27 June. Principal Crown Counsel [YJ]

knows that this supplementary report is being drafted, and what

happens? Out of the blue, the Third Division of the

Court of Appeal sits two days early and awards custody to the

notary, 'without taking into account the documents filed by

Professor [MA] after the close of the hearing'. Was the

Court of Appeal informed that Professor [MA]'s report, which

was very unfavourable to the notary, might be filed before the

close of the hearing, and is that why the Third Division sat

two days early? What is more, not all Professor [MA]'s reports

were filed after the close of the hearing. In fact, the

Third Division had at least three other reports by

Professor [MA] at its disposal, all of them to the same effect.

So the judges are lying in their judgment. On 6 November 1984

the case again comes before the court, and this time the

division relies on a totally different argument in order to

dismiss Professor [MA]'s reports: 'Despite what he

(Professor [MA]) appears to believe, he has not been appointed

by Principal Crown Counsel at this Court to assist the Court

in any way in relation to this case.' There are only two

possibilities: either Professor [MA] was given

Principal Crown Counsel's office's tapes so that he could study

them, or else he stole them and must be prosecuted and

convicted. If he has not been appointed by the court,

Professor [MA] is not authorised to be in possession of

documents from the criminal file. The courts are therefore

once again using dirty tricks to give a veneer of honesty to

an inexcusable judgment.

· On 26 June 1984, to general astonishment, the President

of the Third Division of the Antwerp Court of Appeal, Mrs [YA],

together with her fellow judges [YB] and [YC], award custody

to the notary who stands accused of incest. However, he can

exercise his right of custody only under the supervision of his

parents. Here we find ourselves faced with the most tortuous

reasoning: either the notary is to be wholly trusted as far as

his children are concerned and he can have custody; or he is

not to be trusted and the children are at risk with him.

Mrs [YA], however, opted for a hypocritical judgment. If the

notary has to be supervised by his parents, he is obviously not

trustworthy. And yet he is given custody. Can anyone make

head or tail of this? The Third Division had already moved in

this direction. At the hearing on 6 June the notary's parents

had been asked whether they would be willing to take on this

onerous responsibility. To which, of course, they said 'yes'.

Coincidence or no, it was the only time that the notary's

parents attended a hearing. That fact makes it look very much

like a put-up job. Had they been told in advance that this

question was going to be put to them?

· The grandparents are not the only ones to have been given

information in advance. On 25 June, two days before judgment

was officially given, the notary was waiting to pick his

children up from school. He already knew that the

Court of Appeal was going to award him custody. How could that

be?

· In the previous article, we mentioned the mother's

complaint that the detectives constantly twisted her words or

simply did not write down what she said. That is not all.

Statements by eyewitnesses have also been falsified ...

· At a certain point the investigating judge in Malines,

Mr [YE], a former CVP [Christian People's Party] councillor for

Willebroeck, appoints Dr [MB] as a (medical) expert. Dr [MB]

comes to the same conclusions as Professor [MA]: Jan and Wim

have been sexually abused. Dr [MB] warns the

investigating judge unequivocally: 'It is important to avoid

aggravating the father's psychological problems and turning him

into a confirmed homosexual or pederast.' Despite this, on

6 November Mrs [YA] and her fellow judges [YB] and [YC]

confirmed the custody order in favour of the father. It is the

most cowardly judgment we have ever read. The children's

mother is blamed for not having filed a copy of the report by

the expert [MB], 'with the result that it is not possible to

examine its contents'. But how could the mother have filed

this report? She is not even entitled to consult it, let alone

to study it. In Belgium the law prevents anyone from obtaining

any information so long as a judicial investigation is under

way, because the investigation is secret. The Court of Appeal

expressly acknowledges in its judgment that the

judicial investigation is still under way, and yet Mrs [YA]

blames the mother for failing to file this report! When it is

for Principal Crown Counsel's office to file an expert's

report! Despite the fact that the investigating judge [YE] has

been in possession of Dr [MB]'s report since the end of August,

we read in the Third Division's judgment that

'Principal Crown Counsel's office did not consider it necessary

to inform the Court of this fact'. Why did

Principal Crown Counsel's office refuse to forward this crucial

expert report to the Court of Appeal? Because it was too

unfavourable to Mr X? However that may be, Mrs [YA] put her

name to a mass of legal nonsense.

· On 5 September 1984 Louis De Lentdecker publishes his

first article on the incest case under the title, 'Justice goes

mad. A young woman fights for her children'. Very shortly

afterwards the Advocate-General [YD] summons De Lentdecker by

telephone. As De Lentdecker comments in his second article,

on 28 September, 'It is rare for a judge or Crown Counsel to

summon a journalist to an interview in connection with pending

legal proceedings.'

The following extract from De Lentdecker's article is also

telling: 'When I asked why the court had not appointed

three experts to look into the case from the psychiatric,

medical and forensic points of view, the Advocate-General

replied, and I quote his exact words, "These kids (i.e. Wim and

Jan) have already had to drop their trousers too much for all

sorts of examinations. The best thing is to leave them in

peace." When I retorted that the court had, however, appointed

an expert (De Lentdecker is referring to Dr [MB]) and that his

report had barely been raised if at all, presumably because it

contained damning findings as regards the father, the

Advocate-General replied: "It is not true that the

expert report ordered by the court damns the father. In any

event, I do not know what it says. Besides, the man's findings

are not valid - he completed his examination in five days."'

What crass bias on the part of the Advocate-General [YD] is

revealed in those quotations. And what on earth could have

made him take a journalist to task in this way? That is not

one of his duties. The Advocate-General [YD] has since very

properly been removed from this case for having exceeded his

authority and he has been replaced by the

Senior Advocate-General [YK].

...

There are also a few positive developments. On

Thursday 26 June the Ninth Division of the

Antwerp Court of Appeal upheld the October 1985 judgment of the

Malines Criminal Court, which had acquitted the mother on the

charge of removing the children from the notary's custody. The

important thing about that case, apart from the mother's

acquittal, is that the court duly took into account the

evidence of Professor [MA] and the court-appointed expert [MB],

who both testified under oath at the hearing that the children

had indeed been sexually abused. The bench in this case was

composed of judges other than [YA], [YB] and [YC], and

Principal Crown Counsel was not [YJ]."

21. The applicants published their third article on

18 September 1986. It contained the following:

"...

In this article we reproduce photographs, drawings and

quotations which we would have preferred not to publish. Most

of these documents have been in our possession from the outset,

but we did not want to run the risk of being accused of

sensationalism. The courts are likewise in possession of this

irrefutable evidence, and it is precisely because the

Antwerp Court of Appeal and Youth Court refuse to have regard

to it that we find ourselves obliged to publish it.

The astonishment, anger and incredulity our readers feel are

fully shared by us. Astonishment that such a thing is

possible; anger because it is allowed; and incredulity because

the ultimate guarantee of our democracy, an independent system

of justice, has been undermined at its very roots. This is

why, for the sake of the children Wim and Jan, we are

publishing evidence which we would rather have left to rot

under lock and key in cupboards in our archives.

Guy Mortier

Editor

On Tuesday 2 September a Youth Court judge, Mrs [YL], made an

interim order in the scandalous incest case involving an

Antwerp notary. As everyone knows, this tragedy is being

played out in the most highly placed financial spheres in the

country, against the background of extreme-right-wing circles

in Flanders. The Antwerp notary is accused by his wife of

having sexually abused his two little boys, whom we are calling

Wim and Jan, of having physically ill-treated them and of

continuing to ill-treat them. The Youth Court judge has now

decided that the father should be awarded custody of his

children, or rather should retain custody, since he had already

been given it, in defiance of any concept of justice, by the

Antwerp Court of Appeal. Yet the mother, who has not been

accused of anything, and who has already been twice acquitted

on a charge of libelling the notary, is not allowed to see her

children more than once a month.

...

This inexplicable judgment once again stands reason on its

head. The case file is getting thicker and thicker and

contains numerous medical certificates, horrifying drawings by

the children of being raped by their father, photographs of

anal irritations and marks left on the children's bodies after

blows from a cudgel - not to mention detailed psychiatric

reports on the children: one by the court expert [MB], five by

Professor [MA], an eminent Louvain paediatrician, and two,

including a very up-to-date one, by Professor [MC], who

recently examined the children in the greatest secrecy. Each

time, it emerges clearly that the two children have been

sexually and physically abused. Why does the Youth Court judge

[YL] refuse to take account of this solid evidence in her

judgment, especially as not one of the medical reports

questions that there has been physical abuse? Does Mr X's

family really have so much influence and money that the Antwerp

courts are incapable of giving an independent ruling?

It is not for the press to usurp the role of the judiciary, but

in this outrageous case it is impossible and unthinkable that

we should remain silent. Up to now, we have dealt with this

incest case as sensitively as possible. Now that the courts

have definitively taken a wrong turning, we feel obliged, in

the interests of the children, to reveal more details, however

horrible and distasteful they may be for the reader.

...

On what evidence did the Youth Court judge [YL] base her

interim order? According to an article (the first of several)

in Het Volk, the source of which appears to be the notary

himself, [YL] allegedly based the interim order on a report by

three experts she had appointed. According to Het Volk, that

report makes it clear that 'there can never have been any

question of any sexual abuse'. The least that can be said is

that Het Volk has been misinformed (indeed, it has since gone

back on its first article). What exactly is the truth?

Three court-appointed experts, Dr [MI], Dr [MJ] and Dr [MK],

had Wim and Jan for observation during the holidays at the

Algemeen Kinderziekenhuis Antwerpen ("the AKA" [a

paediatric hospital]). Their report is not yet ready and

therefore has certainly not yet been filed. The

Youth Court judge and the parties have nothing in writing from

them. The Youth Court judge [YL] has therefore rushed a

decision through even before the experts' report is finished.

This procedure in itself appears extremely suspect. But what

is worse is that it leaves the mother completely defenceless.

Since there is nothing official on paper, she cannot appeal

against the Youth Court judge's decision.

Secondly, contrary to what is suggested, the three doctors

referred to are not independent experts. Dr [MJ] and Dr [MK]

work under Dr [MI] at the AKA. It is therefore difficult for

them to challenge their superior's findings. At the AKA these

two doctors are not known for being the kind to put a spoke in

their boss's wheel.

Thirdly, there is the question whether it was advisable to put

Dr [MI] in charge of the team of experts. We do not wish to

prejudge the report before knowing what it contains, but is it

not singularly unfortunate that a person belonging to the same

ideological camp as the extreme-right-wing notary should have

been appointed in this case, which is already so politicised?

Dr [MI] is married to the daughter of [ZH], who was a governor

during the war. Readers will also remember that Mr X's family

has a very close relationship with 'blackshirt' circles.

Dr [MI] also boasts, in front of hospital staff, that he

supports the apartheid regime in South Africa, just like Mr X's

family. This is the same Dr [MI] who, some time ago, treated

a maladjusted child by enrolling him in the extreme-right-wing

Vlaams Nationaal Jeugdverbond (VNJ), just to teach him some

discipline. Everyone is entitled to their political opinions,

but in this sensitive case it would have been reassuring to see

a less politically charged expert appointed.

Just as inexplicable is the fact that the Youth Court judge

[YL] keeps Mrs [ZI] on as the Child Protection Department

officer attached to the court. Judge [YL] has to rely very

considerably on the child protection officer for all her

information, and therefore also for her view of the case; yet

we have already disclosed that Mr X knows Mrs [ZI] well.

Moreover, that fact appears in an interview record dated

6 October 1984. In this interview the notary repeatedly cites

Mrs [ZI] as one of the people whom the courts can ask to

testify to his basic kindheartedness. Is it really impossible

to remove from this case everyone who has ideological or

friendship ties with the X family?

...

How does the notary defend himself against his children's

accusation that in May he beat Wim with 'a spiked cudgel'? In

a very confused way. It emerges from a transcript of the

children's story and a bailiff's report that he beat Wim on

14 May. That day, the notary and his little boys were visiting

Dr [MJ]. In the presence of his father, Wim told the doctor

some very compromising things about him. As soon as they got

home, the father started beating Wim. The next day, the notary

went to see Dr [MJ] on his own and, strangely, said not a word

about his son's injuries. It was not until several days later,

when the photographs were sent to the relevant authorities,

that he came up with a story about Wim having fallen

downstairs. Why did he not say this at the outset? The

children confirm to Professor [MC] that Wim was beaten and that

he did not fall downstairs at all. So the notary changes tack.

On 2 June he calls in a bailiff who is a friend of his and who

draws up a report according to which the children deny

everything. Strangely, it is not the bailiff but the father

himself who questions his little boys. So this report is

worthless.

On 5 June the notary comes up with yet another idea. A Dr [ML]

issues a certificate stating that he can find no injuries.

Which is quite possible, since three weeks have gone by in the

meantime. Why does the notary have the fact that there are no

injuries certified three weeks later, when he originally stated

that the injuries were caused by a fall downstairs?

The latest version is that Jan hit Wim. This figment of the

imagination comes from the Youth Court judge herself. There's

bias for you.

...

The ill-treatment which occurred in May was not an isolated

incident (as we have already indicated on several occasions).

As early as 10 January 1984 Dr [MG] sent the following results

of his examination of four smear tests to a forensic

medical examiner, Dr [MM]: 'Apart from amorphous matter,

epithelial and mucous cells, I observed, in three out of the

four samples, a structure with a triangular head on a long,

more or less straight tail, which matches the description of

spermatozoa. I observed the presence of one such structure in

two of the three samples, and two in the third.' Other doctors

also made the same findings. Subsequently, Professor [MA] and

the court expert [MB] reach the conclusion, independently of

each other, that Wim and Jan have been sexually and physically

abused. The latest report is by Professor [MC]. In order to

supplement an earlier report, this expert examined the children

on twelve occasions between 1 August 1985 and 31 May 1986 - the

elder without his mother present, Wim normally in his mother's

presence because at the beginning it was practically impossible

to examine him without her. As Director of 'Kind en Gezin in

Nood' ['Children and Families in Need'], one of the departments

of Leuvense Universitaire Ziekenhuizen

[Louvain University Hospitals], Professor [MC] is one of the

principal authorities in the field. In order to remain

entirely uninfluenced in his work, he expressly decided to

refuse any form of payment. His report contains the most

horrific findings. According to it, the children have been

beaten not once but several times with a spiked cudgel. This

abuse is, moreover, inflicted as a form of ritual. Candles are

lit; sometimes, the father wears a brown uniform and the cudgel

has a 'sign of the devil' on it. Through the children,

Professor [MC] was also able to discover where the father took

his inspiration from. He found the sign of the devil in

Volume I of the Rode Ridder ('The Red Knight')(!), entitled

De barst in de Ronde Tafel ('The cleft in the Round Table').

The sign is accompanied by the following text: 'This is the

symbol of the Prince of Darkness, an unknown magician and

Grand Master of Black Magic! Even before the Round Table was

created, he went away and no one knows where he is today! He

devotes his exceptional knowledge and power to everything that

is evil and negative! His sole objective is to sow confusion

and destruction. He is a symbol of the violence which reigns

in these times over humanity and justice!'

Professor [MC] does not mince his words in his report: 'By way

of conclusion, it can be said that Wim is the victim of

repeated sexual and physical abuse and that his brother Jan is

subjected to the same abuse to a lesser degree but, under very

strong psychological pressure, is becoming increasingly

psychologically disturbed, hence the drop in his school marks

and the occasional inconsistencies in what he says in different

interviews. In the interests of both children a court order

should be made immediately to remove them completely and

permanently from their father's orbit. Any further delay would

be medically unjustifiable.'

Appended to the professor's two reports are very precise

descriptions of the children's injuries, the statements made

by the children, sinister drawings by Wim and Jan of sex scenes

with their father (often represented with horns), and

photographs. Both reports are in the hands of the experts

[MI], [MJ] and [MK]. Judge [YL] also has them. Just as she

has Professor [MA]'s five reports and the report by the

court expert [MB]. How can Mrs [YL] maintain that there is no

evidence? Do the children have to be beaten or raped before

her eyes before she believes it?

...

Similar accusations by the children against their father were

also subsequently recorded by Professor [MA], the

court expert [MB], the two detective sergeants [ZF] and [ZG]

in the presence of Wim's schoolteacher, and, lastly,

Professor [MC]. On the other hand, there is one retraction of

the statements in an interview (of which there is only a

single, confused minute on tape) carried out by

Detective Sergeant [ZJ], since suspended, who intimidated Jan

with a weapon; one in an interview with

Detective Sergeants [ZF] and [ZG], at the end of which Jan

broke down completely (as Louis De Lentdecker happened to

witness); and one retraction made by Jan to Professor [MC], in

his father's presence.

The crucial question remains: is any mother capable of

inventing all this? Even more to the point, would

two young children - they will be 6 and 9