ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 10.02.1995"АЛЛЕНЕ ДЕ РИБЕМОН (allenet de ribemont) ПРОТИВ ФРАНЦИИ" [рус.(извлечение), англ.]

of the following judges:
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<*> Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
Mr R. Ryssdal, President,
Mr F. {Golcuklu} <*>,
Mr L.-E. Pettiti,
Mr J. De Meyer,
Mr I. Foighel,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr G. Mifsud Bonnici,
Mr B. Repik,
and also of Mr H. Petzold, Acting Registrar,
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<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 27 October 1994 and 23 January 1995,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 21 January 1994, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 15175/89) against the French Republic lodged with the Commission under Article 25 (art. 25) by a French national, Mr Patrick Allenet de Ribemont, on 24 May 1989.
The Commission"s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby France 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 Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention.
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 28 January 1994, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. {Golcuklu}, Mr J. De Meyer, Mr I. Foighel, Mr A.N. Loizou, Mr J.M. Morenilla, Mr G. Mifsud Bonnici and Mr B. Repik (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the French Government ("the Government"), the applicant"s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). On 6 April 1994 the Commission produced various items, as requested by the Registrar on the President"s instructions, including a video recording produced by the Government that contained extracts from television news programmes. Pursuant to the order made in consequence, the applicant"s and the Government"s memorials were received at the registry on 15 and 26 May 1994 respectively. On 19 July the Secretary to the Commission indicated that the Delegate would submit his observations at the hearing.
5. In accordance with the President"s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 24 October 1994. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mrs E. Belliard, Deputy Director of Legal Affairs, Ministry of Foreign Affairs, Agent,
Mr Y. Charpentier, Head of the Human Rights Section, Legal Affairs Department, Ministry of Foreign Affairs,
Mrs M. Pauti, Head of the Office of Comparative and International Law, Civil Rights Department, Ministry of the Interior,
Mr F. Pion, magistrat, on secondment to the European and International Affairs Section, Ministry of Justice, Advisers;
(b) for the Commission
Mr J.-C. Soyer, Delegate;
(c) for the applicant
Mr J. de Grandcourt, avocat,
Mr R. de Geouffre de la Pradelle, avocat, Counsel.
The Court heard addresses by Mrs Belliard, Mr Soyer and Mr de Grandcourt.
6. In a letter received at the registry on 29 November 1994 the Government clarified a number of points relating to the tape recording mentioned above.
AS TO THE FACTS
7. Mr Patrick Allenet de Ribemont is a company secretary. He currently lives in Lamontjoie (Lot-et-Garonne).
A. The background to the case
8. On 24 December 1976 Mr Jean de Broglie, a Member of Parliament ({departement} of Eure) and former minister, was murdered in front of the applicant"s home. He had just been visiting his financial adviser, Mr Pierre De Varga, who lived in the same building and with whom Mr Allenet de Ribemont was planning to become the joint owner of a Paris restaurant, "La {Rotisserie} de la Reine {Pedauque}". The scheme was financed by means of a loan taken out by the victim. He had passed on the borrowed sum to the applicant, who was responsible for repaying the loan.
9. A judicial investigation was begun into the commission by a person or persons unknown of the offence of intentional homicide. On 27 and 28 December 1976 the crime squad at Paris police headquarters arrested a number of people, including the victim"s financial adviser. On the 29th it arrested Mr Allenet de Ribemont.
B. The press conference of 29 December 1976 and the
implicating of the applicant
10. On 29 December 1976, at a press conference on the subject of the French police budget for the coming years, the Minister of the Interior, Mr Michel Poniatowski, the Director of the Paris Criminal Investigation Department, Mr Jean Ducret, and the Head of the Crime Squad, Superintendent Pierre Ottavioli, referred to the inquiry that was under way.
11. Two French television channels reported this press conference in their news programmes. The transcript of the relevant extracts reads as follows:
"Tf1 news
Mr Roger Giquel, newsreader: ... Be that as it may, here is how all the aspects of the de Broglie case were explained to the public at a press conference given by Mr Michel Poniatowski yesterday evening.
Mr Poniatowski: The haul is complete. All the people involved are now under arrest after the arrest of Mr De Varga-Hirsch. It is a very simple story. A bank loan guaranteed by Mr de Broglie was to be repaid by Mr Varga-Hirsch and Mr de Ribemont.
A journalist: Superintendent, who was the key figure in this case? De Varga?
Mr Ottavioli: I think it must have been Mr De Varga.
Mr Ducret: The instigator, Mr De Varga, and his acolyte, Mr de Ribemont, were the instigators of the murder. The organiser was Detective Sergeant {Simone} and the murderer was Mr {Freche}.
Mr Giquel: As you can see, those statements include a number of assertions. That is why the police are now being criticised by Ministry of Justice officials. Although Superintendent Ottavioli and Mr Ducret were careful to (end of recording).
Antenne 2 news
Mr Daniel Bilalian, newsreader: ... This evening, therefore, the case has been cleared up. The motives and the murderer"s name are known.
Mr Ducret: The organiser was Detective Sergeant {Simone} and the murderer was Mr {Freche}.
Mr Ottavioli: That is correct. I can ... [unintelligible] the facts for you by saying that the case arose from a financial agreement between the victim, Mr de Broglie, and Mr Allenet de Ribemont and Mr Varga.
Mr Poniatowski: It is a very simple story. A bank loan guaranteed by Mr de Broglie was to be repaid by Mr Varga-Hirsch and Mr de Ribemont.
A journalist: Superintendent, who was the key figure in this case? De Varga?
Mr Ottavioli: I think it must have been Mr De Varga.
Mr Jean-{Francois} Luciani, journalist: The loan was guaranteed by a life insurance policy for four hundred million old francs taken out by Jean de Broglie. In the event of his death, the sum insured was to be paid to Pierre De Varga-Hirsch and Allenet de Ribemont. The turning-point came last night when Guy {Simone}, a police officer, was the first to crack. He admitted that he had organised the murder and had lent a gun to have the MP killed. He also hired the contract killer, {Gerard Freche}, who was promised three million old francs and who in turn found two people to accompany him. The reasons for their downfall were, first, that {Simone"s} name appeared in Jean de Broglie"s diary and, second, that they killed him in front of no. 2 rue des Dardanelles. That was not planned. The intention had apparently been to take him somewhere else, but Jean de Broglie perhaps refused to follow his killer. At all events, that was their first mistake. Varga and Ribemont apparently then refused to pay them. That led to the secret meetings in bars, the shadowing by the police and informers - we know the rest of the story - and their arrest. The second mistake was made by {Simone}. Before contacting {Freche} he approached another contract killer, who turned down the job but apparently talked to other people about it. To catch the killers, the police realistically based their investigation on two simple ideas. Firstly, the murder was committed in the rue des Dardanelles as Jean de Broglie was leaving De Varga"s home. There was necessarily a link between the killer and De Varga. Secondly, De Varga"s past did not count in his favour and the police regarded him as a rather dubious legal adviser. Those two simple ideas and over sixty investigators led to the discovery of the murderer.
Mr Bilalian: The epilogue to the case coincided with a Cabinet meeting at which the question of public safety was discussed ..."
12. On 14 January 1977 Mr Allenet de Ribemont was charged with aiding and abetting intentional homicide and taken into custody. He was released on 1 March 1977 and a discharge order was issued on 21 March 1980.
C. The compensation claims
1. The non-contentious application
13. On 23 March 1977 Mr Allenet de Ribemont submitted a claim to the Prime Minister based on Article 6 para. 2 (art. 6-2) of the Convention, inter alia. He sought compensation of ten million French francs (FRF) for the non-pecuniary and pecuniary damage he maintained he had sustained on account of the above-mentioned statements by the Minister of the Interior and senior police officials.
2. The proceedings in the administrative courts
(a) In the Paris Administrative Court
14. On 20 September 1977 the applicant applied to the Paris Administrative Court for review of the Prime Minister"s implicit refusal of his claim and renewed his claim for compensation. He filed pleadings on 12 October 1977.
On 21 February 1978 the Minister of Justice did likewise. After notice had been served on them by the Administrative Court on 14 March 1978, the Minister of the Interior and the Prime Minister filed pleadings on 21 and 27 April 1978 respectively. Mr Allenet de Ribemont filed more pleadings on 29 March and 24 May 1978.
Further pleadings still were filed on 29 March 1979 by the Minister of Culture, to whom the case file had been sent on 23 January 1979; on 6 June 1979 and 12 August 1980 by the Minister of the Interior; and on 14 May 1980 by the applicant.
15. After a hearing on 29 September 1980, the Paris Administrative Court delivered a judgment on 13 October 1980 in which the following reasons were given:
"Mr Allenet, known as Allenet de Ribemont, has applied for an order that the State should pay compensation for the damage that the Minister of the Interior of the time allegedly caused him by naming him in statements made on 29 December 1976 during a press conference on the murder of Mr Jean de Broglie.
Although the State may be liable in damages for the administrative acts of a member of the Government, statements that he makes in the course of his governmental duties are not susceptible to review by the administrative courts. It follows that the application is inadmissible.
..."
(b) In the Conseil d"Etat
16. On 15 December 1980 the Conseil d"Etat registered a summary notice of appeal by Mr Allenet de Ribemont. After a warning on 19 May 1981, he filed his full pleadings on 1 July 1981. On 7 July these pleadings were sent to the Minister of the Interior, who submitted his observations on 13 April 1982. The applicant replied on 7 July 1982.
17. After a hearing on 11 May 1983 the Conseil d"Etat dismissed the appeal on 27 May 1983, on the following grounds:
"Mr Allenet, known as de Ribemont, claimed compensation for the damage he allegedly sustained on account of statements made to the press on 29 December 1976 by the Minister of the Interior, the Director of the Criminal Investigation Department and the Head of the Crime Squad on the outcome of the police inquiries carried out as part of the judicial investigation into the murder of Mr Jean de Broglie. Statements made by the Minister of the Interior at the time of a police operation cannot be dissociated from that operation. Accordingly, it is not for the administrative courts to rule on any prejudicial consequences of such statements.
It follows from the foregoing that, although the Paris Administrative Court was wrong to rule in the impugned judgment that the applicant"s claim related to an act performed "in the course of governmental duties" and thus not susceptible to review by the administrative courts, Mr Allenet"s appeal against the dismissal of his claim in that judgment is unfounded."
3. The proceedings in the ordinary courts
(a) In the Paris tribunal de grande instance
18. Mr Allenet de Ribemont brought proceedings in the Paris tribunal de grande instance against the Prime Minister on 29 February 1984 and the Government Law Officer (agent judiciaire du {Tresor}) on 5 March 1984.
On 25 September 1984 the Prime Minister submitted that the tribunal de grande instance had no jurisdiction as such an action could only, in his view, be brought in the administrative courts.
After requesting the applicant to produce the full text of the statements attributed to the Minister and raising an objection that an action for defamation was time-barred, the Government Law Officer replied on 21 September 1984 and on 28 May 1985.
19. The applicant filed his submissions on 14 November 1984 and 5 April 1985. He requested the court to order two French television companies to hand over video recordings of the press conference of 29 December 1976 and produced press cuttings relating

"СОГЛАШЕНИЕ МЕЖДУ ПРАВИТЕЛЬСТВОМ РОССИЙСКОЙ ФЕДЕРАЦИИ И ПРАВИТЕЛЬСТВОМ РЕСПУБЛИКИ МОЛДОВА О СОЦИАЛЬНЫХ ГАРАНТИЯХ И ПЕНСИОННОМ ОБЕСПЕЧЕНИИ БЫВШИХ ВОЕННОСЛУЖАЩИХ И ЧЛЕНОВ ИХ СЕМЕЙ"(Заключено в г. Москве 10.02.1995)  »
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