CASE OF CHAUVY AND OTHERS v. FRANCE
No violation of Art. 10
András Baka
8. The first applicant, Gérard Chauvy, was born in 1952 and lives in Villeurbanne. The second applicant, Francis Esmenard, was born in 1936 and lives in Paris. Both are French nationals. The third applicant, Editions Albin Michel, is a limited company formed under French law that has its registered office in Paris. 9. The first applicant, who is a journalist and writer, is the author of a book entitled Aubrac, Lyon 1943 which was published in 1997 by Editions Albin Michel (the third applicant), a company chaired by the second applicant. 10. In his book, the first applicant reconstructed the chronology of events involving the Resistance movements in Lyons in 1943 and took stock of the various archive materials that were available on that period. One of the principal mysteries surrounding this period is the Caluire meeting, an event of particular significance to the history of the French Resistance and a major episode of the Second World War. On 21 June 1943 Klaus Barbie, the regional head of the Gestapo, arrested the main Resistance leaders at a meeting in Caluire in the Lyons suburbs. Among those arrested were Jean Moulin, General de Gaulle’s representative in France and the leader of the internal Resistance, and Raymond Aubrac, a member of the Resistance movement who managed to escape in the autumn of 1943. The truth about how the Resistance leaders came to be arrested in Caluire has still not been established. A member of the Resistance, René Hardy, who is now dead, was accused of being the “traitor” and put on trial. However, he was not convicted after two separate trials. A majority of the court voted in favour of a conviction in one of the trials, but the rules of criminal procedure in force at the time required a majority of at least two votes for a guilty verdict to be returned. 11. The first applicant recounted this major event “using the Aubracs as a prism”. He claimed that his book put to the test “the official truth as related at length in the media, notably by the Aubracs, and in a film that sings their praises”. 12. The book sparked off a fierce public debate in France and the newspaper Libération organised a round-table conference at which historians were invited to discuss the issue in the presence of Mr and Mrs Aubrac. 13. An unabridged version of the written submissions – known as the “Barbie testament” – which were signed by Klaus Barbie and lodged by Mr Vergès, his lawyer, on 4 July 1990 with the judge investigating Barbie’s treatment of members of the Lyons Resistance was appended to the book. Many of the questions raised by the first applicant were based on a comparison of that document with the “official” version of history. In the conclusion to his book, he said that there was no evidence in the archives to substantiate the accusation of treachery made by Klaus Barbie against Raymond Aubrac, but that their examination had shown that “unreliable accounts [had] been given at times”. He followed this up with two pages of questions that cast doubt on Raymond Aubrac’s innocence. 14. On 14 May 1997 Mr and Mrs Aubrac brought a private prosecution by direct summons in the Seventeenth Division of the Paris tribunal de grande instance. The summons contained fifty extracts from the book (eighteen from Barbie’s written submissions and thirty-two from the first applicant’s own text). The three applicants were summoned in their capacities as author, accomplice and a party liable for defamation under the civil law. Mr and Mrs Aubrac relied on section 31 of the Freedom of Press Act of 29 July 1881 and the Court of Cassation’s judgment of 4 October 1989 in Pierre de Bénouville. The relevant parts of the summons read as follows: “When ... Klaus Barbie was brought to France in 1983 he chose to defend himself by seeking to discredit those of his victims who had survived and were still able to make accusations against him by accusing them of treachery. He suggested that Raymond and Lucie Aubrac might be among their number. However, when Raymond Aubrac attended Barbie’s trial after being called as a witness by him, neither Barbie, nor his counsel Mr Vergès, asked him the slightest question, made the least remark or produced any document capable of supporting this vile accusation which remained extremely vague. At the same time, by a judgment of 30 April 1987 followed by a judgment of 10 February 1988 which has become final, Raymond Aubrac secured Mr Vergès’s conviction for defamation after Mr Vergès had chosen to relay and even to back up his client’s insinuations in a film by Mr Claude Bal. ... The [first applicant’s] book was published in March 1997 with the title ‘Aubrac, Lyon 1943’. A banner wrapped around the cover proclaimed: ‘A legend put to the test of history.’ There cannot, therefore, be any doubt that this book is aimed almost exclusively at the Aubracs and purports to use rigorous historical method to destroy their so-called ‘legend’ as members of the Resistance.” 15. Mr and Mrs Aubrac then set out those of the applicants’ allegations which they considered defamatory and their reasons for so considering them: “A. The circumstances of Raymond Aubrac’s arrest in March 1943 The first falsehood of which the Aubracs are accused is that Raymond Aubrac was arrested on 13 March 1943 and not on 15 March; this enables Barbie to assert on the basis of this ‘established fact’ that the only way Raymond Aubrac, who had been arrested on 13 March, was able to attend the meeting on 15 March in the rue de l’hôtel de ville in Lyons was under the control of the French police. ... B. The allegations relating to Raymond Aubrac’s release in May 1943 An order for Raymond Aubrac’s release was made on 10 May 1943. However, in an autobiographical account published in 1984, his wife puts the date of his release at 14 May while Raymond Aubrac himself hesitates between 14 and 15 May in a deposition made on 21 August 1948 in connection with the second Hardy trial. ... For [the first applicant], there can be but one explanation for this discrepancy between the dates: Raymond Aubrac spent four days collaborating with the divine Barbie who compelled the French judicial authorities to release him. This was confirmed by Lucie Aubrac’s assertion that she had warned the public prosecutor not to oppose release, while [the first applicant] feigns surprise at the lack of concrete evidence of the application. ... C. Escape from L’Antiquaille Hospital ... this entire chapter returns to the alleged statement by Lucie Aubrac that she secured her husband Raymond’s inclusion not only among the four members of the Resistance who were arrested on 15 March 1943, but also among those who were freed on 24 May, with the sole aim of challenging the account of those who took part in that escape and branding them liars. ... ... [The first applicant’s] inability to rank the documents he cites in order of importance is a cause for consternation here. He considers it a near certainty that Aubrac’s wife ‘hid’ her husband following his release by Barbie, but chooses to ignore the fact that [the circumstances of] his release [were] immediately examined by Frenay, head of the ‘Combat’ movement and subsequently, as was to be expected, subjected to close scrutiny at General de Gaulle’s headquarters in London, and, in particular, the remark made by Frenay – despite its inclusion in the record of his interview in London on 30 June 1943 – that ‘there is no doubt that Aubrac is a fellow who is beyond all suspicion’. ... D. The defamatory allegations about Caluire ... Although the debate still rages over the extent to which René Hardy was a willing collaborator and the unnecessary risks taken by the leaders of the ‘Combat’ movement in sending Hardy to Caluire to defend the prerogatives of their leader, prior to Barbie in 1989 no one had ever suggested that Raymond and Lucie Aubrac had played the slightest role in Jean Moulin’s arrest on 21 June, or his identification by René Aubry on 25 June after four days of torture, it again being stressed that Hardy did not know Jean Moulin. ... [The first applicant] had no hesitation in asserting (page 130): ‘It is certain that Raymond Aubrac appears no longer to recollect the meeting with Lassagne and Aubry at Lonjaret’s home on 19 June 1943, although in 1948 he fully admitted that such a meeting had taken place.’ In so doing, [the first applicant] lends credence to the notion that on 19 June 1943 Raymond Aubrac knew all about the proposed meeting in Caluire ... E. The deliberate confusion between Hardy and Aubrac In two transitional chapters (Chapters XI and XII), [the first applicant], without citing a single piece of documentary evidence, seeks to cause deliberate confusion by recounting the misfortunes of René Hardy (who, once again, no one doubts helped the Germans although it is not known to what extent he did so voluntarily) and Raymond and Lucie Aubrac, whom no one has ever accused of such collaboration, for good reason. ... ... [The first applicant’s] aim is still the same: to lead people to believe that Aubrac is lying and that what he clearly stated at the material time no longer matters, as he does not repeat it in identical terms fifty years on. ... F. The offences of defamation are made out Both the publication of the ‘Barbie testament’ and the comments of [the first applicant] in support of that document render [the applicants] liable for defamatory statements in the form of precise allegations, although sometimes in the form of innuendo, against two specific persons, Raymond and Lucie Aubrac, whose honour and reputation have been considerably tarnished by the said allegations. The most harmful allegations in a book whose entire content is defamatory are as follows: A. Allegations against Raymond Aubrac 1. Raymond Aubrac was the French officer whom the Germans used to infiltrate the leaders of the Secret Army upon its formation. 2. Raymond Aubrac was a member of the Resistance whom Barbie turned into one of his department’s agents on his arrest in March 1943. 3. Raymond Aubrac lied about the date of his first arrest: it took place on 13, not 15, March 1943 . 4. Raymond Aubrac, who was controlled by the French police, was not in fact arrested on 15 March 1943, when the French police went to one of his homes. 5. Raymond Aubrac was responsible for the ‘mousetraps’ that were set for members of the Resistance movement in Lyons between 13 and 15 March 1943. 6. Raymond Aubrac was not released on 10 May 1943 pursuant to a freely made decision of the investigating judge ..., but because the German authorities had compelled the French judicial authorities to release him. 7. Raymond Aubrac lied about the date of his release following his first arrest in order to hide the fact that for four days, between 10 and 14 May 1943, he had remained at the disposal of Barbie, the head of the Gestapo. 8. After being informed on Saturday 19 June 1943 of the time and venue of the meeting due to take place in Caluire of various Resistance leaders including Jean Moulin, Raymond Aubrac had informed his wife, who was thus able to inform the head of the Gestapo. 9. Raymond Aubrac was released voluntarily by the Germans on 21 October 1943, when English agents took part in an operation to free one of their agents, Jean Biche, and Barbie, who had been informed of the operation, seized the opportunity to allow his agent Raymond Aubrac to escape. 10. In general, Raymond Aubrac’s conduct with regard to the German authorities in Lyons in 1943 was similar to that of René Hardy, whom the Germans were using at that time. B. Allegations against Lucie Aubrac 1. Lucie Aubrac had concealed the fact that her husband was released on 10 May 1943, not as a result of action she had taken, but by virtue of an order of the investigating judge ... acting on the instructions of Barbie, the head of the Gestapo. 2. It was not Lucie Aubrac who had arranged the operation that had enabled three members of the Resistance, who had been arrested at the same time as Raymond Aubrac, to escape from L’Antiquaille Hospital on 24 May 1943. 3. After being informed by her husband of the time and place of the meeting at Dr Dugoujon’s home in Caluire on 21 June 1943, Lucie Aubrac had communicated the information to Barbie, the regional head of the Gestapo, on Sunday, 20 June. 4. Lucie Aubrac, whose controlling officer was Floreck, Barbie’s deputy, had agreed to act as liaison officer between her husband and ... Barbie to avoid ‘giving her husband away’. 5. Lucie Aubrac could only have gained access to the premises used by the Gestapo if she was a Gestapo agent. 6. It was with the full agreement of the Gestapo, and more specifically Barbie, that Lucie Aubrac was able to arrange her husband’s ‘escape’ in an operation that was organised not by her, but by the Intelligence Service, on 21 October 1943. Each of these defamatory statements ... must give rise to liability under section 31 of the Act of 29 July 1881. These defamatory statements, which accuse [the Aubracs] of treachery and of concealing treachery, constitute a direct attack on their status as founding members and organisers of the Freedom (Libération) Resistance network and, in Raymond Aubrac’s case, as the military commander of the Secret Army. This reference to section 31 of the Act of 29 July 1881 is inescapable since, as the Criminal Division of the Court of Cassation reiterated in a judgment of 4 October 1989 (in Pierre de Bénouville): ‘... By virtue of a combination of sections 30 and 31 of the Freedom of Press Act and section 28 of the Act of 5 January 1951, the protection against defamation afforded to certain recognised Resistance movements which are likened to the Army and Navy extends to the members of these movements if the defamatory statement concerns their status or actions as members.’ ” 16. In a judgment of 2 April 1998, the tribunal de grande instance began by examining the various alleged defamatory statements in the chronological order of the underlying events and by comparing Klaus Barbie’s signed written submissions with the first applicant’s text, as it considered that the very purpose of the first applicant’s book was to “compare the allegations of these ‘written submissions’ with the account of events given by Mr and Mrs Aubrac on various occasions and the other oral and documentary evidence relating to that period. ... The entire book thereafter focuses on this (major) charge of treachery”. 17. The tribunal de grande instance thus examined the circumstances of Raymond Aubrac’s initial arrest in March 1943, his release in May 1943, the escape from L’Antiquaille Hospital, the Caluire episode, events post-Caluire and the escape from boulevard des Hirondelles, and concluded: “Thus ..., without formally corroborating the direct accusations made in ‘Barbie’s written submissions’, the [first applicant] sets about sowing confusion by combining a series of facts, witness statements and documents of different types and varying degrees of importance which together serve to discredit the accounts given by the civil parties; he also questions the motives for their deception and lies, and – despite the reservations expressed by the author – surreptitiously renders plausible the accusation of treachery and manipulation made in ‘Barbie’s written submissions’ that constitutes the underlying theme of the entire book. ... The civil parties are therefore right to consider that the entire book, and particularly the passages [reproduced in the judgment], tarnish their honour and reputation. The publication of the written submissions signed by Klaus Barbie and the quotation in various parts of the text of extracts from them constitutes defamation by reproduction of libellous accusations or allegations, an offence expressly provided for by section 29, first paragraph, of the Freedom of the Press Act. As for the author’s comments, they constitute defamation by innuendo in that they encourage the reader to believe that very grave questions exist over Mr and Mrs Aubrac’s conduct in 1943 that outweigh the certainties that have been hitherto accepted; they thus lend credence to Barbie’s accusations.” 18. The tribunal de grande instance then considered which section of the Freedom of the Press Act was applicable in the case and, referring to the Act of 5 January 1951 and the Court of Cassation’s case-law, stated that the likening of recognised Resistance movements to the Army and Navy also applied to members of those movements. It noted that for Convention purposes “law” included both legislation passed by Parliament and judicial interpretation of that legislation, provided it was sufficiently settled and accessible. It accordingly found that section 31 of the Act of 29 July 1881 was applicable. 19. It went on to explain that the defamatory statements were deemed to have been made in bad faith and that the burden of proof was on the accused to provide sufficient justification to establish that they had acted in good faith. They had to show that there had been a legitimate interest in publication unaccompanied by personal animosity, that a proper investigation had been carried out and that the tone was measured: “While the work of historians, who must be permitted to go about their work with total liberty if the historical truth is to be established, may on occasion lead them to make critical assessments containing defamatory accusations against the actors – both living and dead – of the events they are studying, it can only be justified if the historian proves that he has complied with his scientific obligations. ... As soon as they came into the hands of the investigating judge and even though only the specialists knew what they contained, ‘Barbie’s written submissions’ received a degree of publicity that encouraged rumours to spread. There was, therefore, an argument for full publication, provided it was accompanied by an explanation of the historical background and a critical analysis that would enable the reader to form a considered opinion on the weight to be attached to the last statements of the former Nazi officer.” With that requirement in mind, the tribunal de grande instance found that the characteristic features of the applicant’s book were the excessive importance given to ‘Barbie’s written submissions’, a manifest lack of adequate documentation on the circumstances of Raymond Aubrac’s first arrest on 15 March 1943 and his release, a failure to rank the sources of information on the escape from L’Antiquaille Hospital in order of importance, insufficient qualification of his remarks on Caluire and the escape of 21 October, a lack of critical analysis of the German sources and documents as such and its neglect of the statements of those who took part in the events. The tribunal de grande instance set out in detail and gave reasons for each of these assertions and concluded: “... judges are required by the nature of their task not to abdicate when confronted with the scholar (or someone claiming to be such) and to decide the case in law, thereby contributing in their own way to the regulation of relations in society. Thus, judges cannot, in the name of some higher imperative of historical truth, abandon their duty to protect the right to honour and reputation of those who were thrust into the torment of war and were the unwilling but courageous participants therein. Immortalised by their contemporaries as illustrious myths, these men and women have not for all that become mere subjects of research, shorn of their personality, deprived of sensibility or divested of their own destinies in the interests of science. Because he has forgotten this and has failed to comply with the essential rules of historical method, the accused’s [the author of the book’s] plea of good faith must fail.” 20. The tribunal de grande instance therefore found the first two applicants guilty, as principal and accomplice respectively, of the offence under sections 29, first paragraph, and 31, first paragraph, of the Act of 29 July 1881 of public defamation of Mr and Mrs Aubrac in their capacity as members of a recognised Resistance movement. It sentenced the first applicant, as the principal, to a fine of 100,000 French francs (FRF) and the second, as an accomplice, to a fine of FRF 60,000. It also found them jointly and severally liable with the third applicant to pay Mr and Mrs Aubrac damages of FRF 200,000 each. It dismissed an application for an order for the book’s destruction, but made an order for publication of a statement in five daily newspapers and for each copy of the book to carry a warning in like terms. Lastly, it found the third applicant liable under the civil law. 21. The applicants appealed against that decision. 22. In a judgment of 10 February 1999, the Paris Court of Appeal dismissed objections of nullity that had been made by the applicants and, on the merits, examined the following questions in turn: whether the prosecution was lawful, legitimate and necessary, whether the remarks were defamatory, whether the defendants had acted in good faith and whether section 31 of the Act of 29 July 1881 was applicable. 23. As to whether the remarks were defamatory, the Court of Appeal endorsed the reasoning of the court below and added that there were a number of factors which indicated that the author and publisher had decided to make the Aubracs’ alleged betrayal the subject of their publication; these included the editorial presentation, the general structure of the book, the wraparound banner that juxtaposed ‘legend’ and ‘history’, and the conclusion to the book which was on the same theme. 24. With regard to the question of defamation by innuendo, the Court of Appeal rejected the criticism of the tribunal de grande instance’s reasoning: “Having thus decided how the book would be balanced: systematic doubt where the Aubracs are concerned and the use of Barbie’s document as a reference – albeit one to be treated with caution – [the first applicant] proceeds, in circumstances that are accurately described in the judgment, systematically to refuse to accord any credit to Mr and Mrs Aubrac’s account. To take the two episodes to which the defence refer: as regards the escape from L’Antiquaille, the author is not merely being irreverent but clearly makes accusations of inaccuracy, contradiction (page 268) and of misrepresenting the truth (page 80): there is no better way of insinuating that someone is lying.” 25. The Court of Appeal then examined the applicants’ plea that they had acted in good faith and rejected it. It did not deny that there could be an interest in analysing major events in the history of the Resistance and found that although some of the expressions used in the book were unpleasant they did not suffice to establish the existence of personal animosity. However, it concluded that the first applicant had failed to act with the necessary rigour for the following reasons: “Anyone who alleges a specific fact must first seek to verify its accuracy. Although this requirement is general, it is especially justified when the accusation is particularly serious – such as of an act of treachery leading to the death of the main Resistance leader – and when, as a historian, its maker is accustomed to questioning sources.” The Court of Appeal then proceeded to identify the factors from which it had concluded that that requirement had not been complied with: the first applicant’s failure to consult the file on the investigation that was conducted after the arrests in March 1943, even though it would have enabled him to establish the date of Raymond Aubrac’s arrest and whether he was already in custody when his home was searched; his lack of interest in the testimony of direct witnesses from that period who were still alive when the book was written; and his failure to investigate certain documents. Noting repeated failures by the first applicant to exercise sufficient caution (he had published the Barbie document without subjecting it to genuine critical analysis, had directly accused the civil party of lying and had dismissed the boulevard des Hirondelles operation by members of the Resistance led by Lucie Aubrac as a sham), the Court of Appeal rejected his plea of good faith. 26. As regards the decision to apply section 31 of the Act of 29 July 1881, the Court of Appeal referred to section 28 of the Act of 5 January 1951 and to two judgments of the Court of Cassation and found that the civil parties had been defamed exclusively with regard to their activities as members of the Resistance “since [the first applicant’s] entire thesis conveyed to the reader the notion that they were guilty of treachery”. It rejected an argument regarding the quality of the statute that had been applied in the case before it, noting that it was some forty years old and had been the subject matter of “settled and unambiguous case-law of the highest court for some twenty years”. 27. Finding that the sentences that had been handed down were just and proportionate, the Court of Appeal upheld all the provisions of the judgment of the court below. 28. The applicants appealed to the Court of Cassation, pleading, inter alia, Articles 7 and 10 of the Convention on the basis that the statutory provision that had been applied was neither clear nor precise and that its interpretation by the courts was inaccessible, unforeseeable and too wide. In their final two grounds of appeal, they alleged that the Court of Appeal had failed to give reasons for its decision to hold the applicants civilly and criminally liable for public defamation. 29. In a judgment of 27 June 2000, the Court of Cassation dismissed the appeal, holding, inter alia, that the court below had properly justified its decision. It found that the Court of Appeal had applied the law correctly: “By virtue of a combination of section 28 of the Act of 5 January 1951 and sections 30 and 31 of the Act of 29 July 1881, firstly, these provisions afford protection against defamation to certain recognised Resistance movements which are likened to the regular Army and, secondly, this protection extends to members of these movements if the defamatory statement concerns their status or actions as members.” It examined the final two grounds of appeal together and dismissed them, holding: “The Court of Cassation is satisfied from the wording of the judgment and its examination of the procedural documents that the Court of Appeal has, for reasons which are neither insufficient nor self-contradictory, firstly, correctly analysed the meaning and scope of the impugned statements and thus identified all the constitutive elements of fact and intent of the offence of which it found the accused guilty and, secondly, used its unfettered discretion to analyse the special circumstances and concluded that the accused’s plea of historical criticism in good faith had to be rejected.” 30. Freedom of the Press Act of 29 July 1881 (as worded at the material time) “It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches, shouts, threats, written or printed matter, placards or posters. It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact.” “Anyone who by one of the means set out in section 23 makes a statement that is defamatory of a court of first instance or of appeal, the Army, Navy or Air Force, a constitutional body or a public authority shall be liable on conviction to between eight days’ and one year’s imprisonment and a fine of between 300 and 300,000 francs, or to one only of these penalties.” “Defamation by like means by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, a representative or officer of the law, a minister of religion in receipt of a State salary, a citizen temporarily or permanently responsible for a public service or discharging a public mandate, a member of a jury or a witness on the basis of his witness statement shall be punishable by the same penalty. Defamatory statements about the private lives of the above persons shall be punishable under section 32 below.” “Anyone who by any of the means set out in sections 23 and 28 makes a statement that is defamatory of private individuals shall be liable on conviction to between five days’ and six months’ imprisonment and a fine of between 150 and 80,000 francs, or to one only of these sentences. ...” Law no. 51-19 of 5 January 1951 “For the purposes of section 30 of the Act of 29 July 1881, recognised Resistance movements and networks shall be deemed to form part of the Army and Navy.” Extracts from the Court of Cassation’s case-law “The originating summons referred only to section 32 of the Act of 29 July 1881, which makes it an offence to make statements that are defamatory of private individuals; the statements which the tribunals of fact found to be defamatory amounted, on the contrary, to offences under sections 30 and 31 of the Act, as the allegations were made against a Resistance group that was likened to the regular Army, or against its leader acting in that capacity and in respect of his functions.” “When the defamatory accusation is made against the leader of a Resistance group that is likened to the regular Army acting in that capacity and with respect to his functions ..., a charge will lie only under section 31 ...” “By virtue of a combination of sections 30 and 31 of the Freedom of Press Act and section 28 of the Act of 5 January 1951, the protection against defamation afforded to certain recognised Resistance movements which are likened to the Army and Navy extends to the members of these movements if the defamatory statement concerns their status or actions as members.”