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

to it.
20. The court gave judgment on 8 January 1986 as follows:
"Admissibility of the action brought against the Prime Minister
Section 38 of the Act of 3 April 1955 provides that any action brought in the ordinary courts for a declaration that the State is owed or owes payment for reasons unconnected with taxation or with State property must, subject to exceptions provided for by law, be instituted by or against the Government Law Officer, failing which the proceedings shall be void.
It follows that Patrick Allenet de Ribemont"s claim for reparation from the State for damage sustained on account of the statements attributed to the Minister of the Interior should have been lodged only against the Government Law Officer, who is the State"s sole representative before the courts, and not against the Prime Minister, who accordingly must not remain a party to the proceedings.
Jurisdiction
The Paris tribunal de grande instance must be held to have jurisdiction in so far as the statements attributed to the Minister of the Interior can be linked with a police operation and are not dissociable from that operation.
The press conference of 29 December 1976, held by the Minister of the Interior, the Director of the Criminal Investigation Department and the Head of the Crime Squad to inform the press of the results of the police inquiries following the murder of Jean de Broglie, may be considered indissociable from the police operation that was then under way.
...
The statements complained of
...
Anyone who complains of any statements, whether defamatory or merely negligent within the meaning of Article 1382 of the Civil Code, must prove that the impugned statements were actually made. It is not for the court to make good any omissions by the parties or to supplement evidence they have adduced, so long as they have been afforded the opportunity of presenting all their documents and arguments freely and in accordance with the adversarial principle.
In this respect, since the plaintiff has been unable to obtain the video recording of the press conference in question and the Government Law Officer considers that he is not under any obligation to request the judge in charge of preparing the case for trial or the court to order the compulsory production of such evidence, judgment must be given on the basis of the evidence in the case file.
Patrick Allenet de Ribemont has produced press cuttings describing the press conference of 29 December 1976, some of which are dated the day after the conference or the days following ... The newspapers did not, however, report the statements allegedly made by the Minister of the Interior, as set out in the writ.
However, in publications several years after the event, journalists attributed to the Minister of the Interior remarks about Patrick Allenet de Ribemont"s alleged role, and in Le Point of 6 August 1979, for instance, it is possible to read Michel Poniatowski"s statements, reported as follows:
"Mr De Varga and Mr de Ribemont were the instigators of the murder. The organiser was Detective Sergeant {Simone} and the murderer was Mr {Freche"}.
But, however carefully the journalists reported the statements in issue, the press articles relied on by Patrick Allenet de Ribemont cannot be accepted as the sole evidence in view of the objection raised by the defendant on this point.
It may further be observed, as a subsidiary point, that the publications at the time of the press conference in issue merely reported the remarks about Patrick Allenet de Ribemont"s involvement in Jean de Broglie"s murder allegedly made by Superintendent Ottavioli after the Minister of the Interior had spoken.
Accordingly, since the plaintiff has brought proceedings against the State solely on account of the remarks attributed to the Minister of the Interior, the action must be dismissed without there being any need to examine the submission that an action either for defamation - although the plaintiff has disputed that his action was for defamation - or for a breach of the secrecy of judicial investigations provided for in Article 11 of the Code of Criminal Procedure, is time-barred.
..."
(b) In the Paris Court of Appeal
21. Mr Allenet de Ribemont appealed to the Paris Court of Appeal on 19 February 1986, and the Government Law Officer cross-appealed on 19 March.
22. The applicant again requested that the videotapes should be handed over for showing.
23. On 7 May 1986 the judge in charge of preparing the case for hearing served notice on Mr Allenet de Ribemont to file his submissions, but without success. On 14 October 1986 he requested him to produce his documents by 30 October and to file any submissions by 14 November. On 19 November he sent a final notice before terminating the preparation of the case for trial. The Government Law Officer filed submissions on 28 November and the applicant on 9 December. On 21 December the parties were informed that the order certifying that the case was ready for hearing would be issued on 28 April 1987.
24. At the hearing of 17 June 1987 Mr Allenet de Ribemont requested an adjournment and, having duly been given leave by the court, filed further submissions on 8 July.
25. The Court of Appeal held another hearing on 16 September 1987 and gave judgment on 21 October 1987. It found against the applicant for the following reasons:
"The preliminary objection of inadmissibility
...
It is apparent from the arguments set out below addressing the analysis of the damage that this is an action to establish the State"s liability on the ground that the judicial system has malfunctioned, rather than a civil action for defamation and/or breach of the secrecy of judicial investigations.
The merits
According to the appellant, Mr Poniatowski had made the following statement: "Mr De Varga and Mr de Ribemont were the instigators of the murder. The organiser was Detective Sergeant {Simone} and the murderer was Mr {Freche"}. It was allegedly apparent from the series of statements made by Mr Poniatowski, or by Mr Ducret and Mr Ottavioli under his authority, that all those guilty had been arrested, the haul was complete and the case was solved. These three had allegedly maintained that the motive for the crime was a bank loan obtained by Mr de Broglie to enable Mr de Ribemont to acquire a controlling interest in the {Rotisserie} de la Reine {Pedauque} company.
However, as the court below rightly held, the press cuttings produced by Mr Allenet de Ribemont do not suffice to prove his allegations.
Even supposing, however, that they had been proved, it would be necessary to establish whether the damage alleged by the appellant could be linked to the impugned statements.
...
It has not been shown that the statements complained of, which were made during the judicial investigation, in themselves caused the alleged damage. In so far as this damage appears to be connected with the existence of criminal proceedings, it still cannot be held that the statements in issue affected the course of the case.
In the absence of any causal link between the impugned statements - should their exact terms be established - and the damage claimed, it is unnecessary to consider the subsidiary application to have the recording produced.
..."
(c) In the Court of Cassation
26. Mr Allenet de Ribemont lodged an appeal on points of law, which the Court of Cassation (Second Civil Division) heard on 4 November 1988 and dismissed on 30 November 1988 on the following grounds:
"The judgment [of the Paris Court of Appeal] has been challenged because it dismissed Mr Patrick {Tancrede} Allenet de Ribemont"s appeal on the ground that the press cuttings he had produced did not suffice to prove his allegations. It is argued, however, firstly, that the Court of Appeal distorted the meaning of those press cuttings, which proved conclusively that statements had been made by the Minister of the Interior and indicated their exact terms; secondly, that it infringed Article 1382 of the Civil Code by refusing to take into consideration the non-pecuniary damage sustained by Mr Patrick {Tancrede} Allenet de Ribemont; and, lastly, that it breached Article 13 (art. 13) of the European Convention on Human Rights by denying fair reparation to a man whose reputation had been injured in statements heard by millions of television viewers.
However, the Court of Appeal held in that judgment, adopting the reasoning of the court below, that the cuttings from the newspapers published on the day after the conference and on the following days did not report the statements allegedly made by the Minister of the Interior, as set out in the writ, but merely gave an account of remarks said to have been made by a police superintendent after the Minister had spoken, and that the remarks attributed to Mr Poniatowski, relating to Mr Patrick {Tancrede} Allenet de Ribemont"s alleged role as instigator, had been reported in a publication that appeared only several years after the event.
It was in the exercise of its unfettered discretion to assess the evidence before it that the Court of Appeal ruled, without distorting the meaning of the press cuttings, that they did not suffice to prove Mr Patrick {Tancrede} Allenet de Ribemont"s allegations.
In giving this reason alone - leaving aside the reasons criticised in the ground of appeal on points of law, which were subsidiary considerations - the Court of Appeal justified its decision in law.
..."
PROCEEDINGS BEFORE THE COMMISSION
27. Mr Allenet de Ribemont lodged his application with the Commission on 24 May 1989. He alleged that the statements made by the Minister of the Interior at the press conference of 29 December 1976 amounted to an infringement of his right to benefit from the presumption of innocence secured in Article 6 para. 2 (art. 6-2) of the Convention. He also complained, under Article 13 (art. 13), that he had not had an effective remedy enabling him to obtain redress for the damage he had allegedly sustained on account of those statements and, under Article 6 para. 1 (art. 6-1), that the domestic courts had not been independent and that the proceedings in them had taken too long.
28. On 8 February 1993 the Commission declared the application (no. 15175/89) admissible as to the complaints based on disregard of the presumption of innocence and the length of the proceedings and the remainder of it inadmissible. In its report of 12 October 1993 (Article 31) (art. 31), the Commission expressed the unanimous opinion that there had been a violation of Article 6 paras. 1 and 2 (art. 6-1, art. 6-2). The full text of the Commission"s opinion is reproduced as an annex to this judgment <*>.
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<*> Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 308 of Series A of the Publications of the Court), but a copy of the Commission"s report is obtainable from the registry.
FINAL SUBMISSIONS TO THE COURT
29. In their memorial the Government asked the Court to "rule that there [had] been no violation of Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention".
30. The applicant requested the Court to "endorse the Commission"s opinion of 12 October 1993" and "hold that there [had] been a violation of Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention".
AS TO THE LAW
I. Alleged violation of Article 6 para. 2 (art. 6-2)
of the Convention
31. Mr Allenet de Ribemont complained of the remarks made by the Minister of the Interior and the senior police officers accompanying him at the press conference of 29 December 1976. He relied on Article 6 para. 2 (art. 6-2) of the Convention, which provides:
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
A. Applicability of Article 6 para. 2 (art. 6-2)
32. The Government contested, in substance, the applicability of Article 6 para. 2 (art. 6-2), relying on the Minelli v. Switzerland judgment of 25 March 1983 (Series A no. 62). They maintained that the presumption of innocence could be infringed only by a judicial authority, and could be shown to have been infringed only where, at the conclusion of proceedings ending in a conviction, the court"s reasoning suggested that it regarded the defendant as guilty in advance.
33. The Commission acknowledged that the principle of presumption of innocence was above all a procedural safeguard in criminal proceedings, but took the view that its scope was more extensive, in that it imposed obligations not only on criminal courts determining criminal charges but also on other authorities.
34. The Court"s task is to determine whether the situation found in this case affected the applicant"s right under Article 6 para. 2 (art. 6-2) (see, mutatis mutandis, the Sekanina v. Austria judgment of 25 August 1993, Series A no. 266-A, p. 13, para. 22).
35. The presumption of innocence enshrined in paragraph 2 of Article 6 (art. 6-2) is one of the elements of the fair criminal trial that is required by paragraph 1 (art. 6-1) (see, among other authorities, the Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 30, para. 56, and the Minelli judgment previously cited, p. 15, para. 27). It will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty (see the Minelli judgment previously cited, p. 18, para. 37).
However, the scope of Article 6 para. 2 (art. 6-2) is not limited to the eventuality mentioned by the Government. The Court held that there had been violations of this provision in the Minelli and Sekanina cases previously cited, although the national courts concerned had closed the proceedings in the first of those cases because the limitation period had expired and had acquitted the applicant in the second. It has similarly held it to be applicable in other cases where the domestic courts did not have to determine the question of guilt (see the Adolf v. Austria judgment of 26 March 1982, Series A no. 49, and the Lutz, Englert and {Nolkenbockhoff} v. Germany judgments of 25 August 1987, Series A nos. 123-A, 123-B and 123-C).
Moreover, the Court reiterates that the Convention must be interpreted in such a way as to guarantee rights which are practical and effective

"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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