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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