ZOLLMANN v. THE UNITED KINGDOM
Inadmissible
Ireneu Cabral Barreto;Nicolas Bratza
The applicants, Stéphane David and Maurice Zollmann, are Belgian nationals, who were born in 1959 and 1963 respectively and have given addresses in Belgium and South Africa. They are represented before the Court by Mr N. Angelet, a lawyer practising in Brussels, Belgium. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants, who are brothers, run an international diamond business, which involved, inter alia, importing diamonds to the family business in Antwerp, Belgium. They state that in autumn 1997 the family business took the decision not to import diamonds from African countries which were undergoing civil war or political instability. By resolution 1173 (1998) of 12 June 1998, the United Nations Security Council imposed an embargo on the export of diamonds by UNITA due to that organisation's role in the continuing war in Angola. In paragraph 21, it requested States to take measures against persons or bodies which violated the sanctions and to impose appropriate penalties. On 8 July 1998, the European Union formally adopted sanctions, binding on its member states. By August 1998, the United Kingdom and Belgium had adopted legislation to give effect to resolution 1173. The legislation as amended in the United Kingdom prohibited the importation into the United Kingdom of diamonds from Angola unless certified by the Angola Government. On 20 September 1999, in answer to a parliamentary question, Mr Peter Hain, the Minister of State at the Foreign and Commonwealth Office responsible for Africa, gave a written response stating inter alia; “We fully support UN sanctions against UNITA... We have also called for stricter enforcement of sanctions by all UN member states. ... The UK fully implements UN sanctions decided upon by the Security Council... Information concerning potential breaches of sanctions by UK nationals or companies is passed immediately to the appropriate UK enforcement authorities.” On 18 January 2000, in answer to further questions about Government measures to enforce UN sanctions, Mr Hain stated: “It is vital that private individuals and companies engaged in breaking the law by deliberately breaching the UN sanctions on UNITA are stopped. I can inform the House that we are referring to the UN sanctions committee and its expert panels the details of three such individuals which we hope that they will be able to follow up...” On 17 February 2000, Mr Hain stated in the House: “We are ready to name, shame and take action where we can on those who break sanctions. For example, we would take action in respect of the illegal provision of UNITA with supplies, without which it could not keep on fighting in Angola. I have named in the House several people included in breaking UN sanctions by supplying UNITA and I shall now name more. David Zollmann is involved in exporting diamonds to Antwerp for UNITA. Based in Rundu, Namibia, Zollmann paid a monthly fee to Namibian officials to enable him to operate without interference. We estimate that in 1999 Zollmann was moving $4 million worth of diamonds per month. His brother, Maurice Zollmann, is carrying out similar activity for UNITA in South Africa. Hennie Steyn, a South African pilot, flies diamonds for Maurice Zollmann from Angola, via Congo Brazzaville... Those individuals are making money out of misery. It is vital that all the Governments, agencies and companies where they operate take urgent action to stop their illegal activities... We have passed these names to the UN and in particular to ambassador Robert Fowler, for his work on the Sanctions Committee responsible for tackling UNITA and Angola generally.” This declaration was published in the House of Commons Hansard Debates and was available on the parliamentary website. The press reported on the matter, repeating the names of the persons included in the declaration – this included a report from Reuters on 17 February 2000 repeated by CNN, an article in the Guardian on 18 February 2000 and an article in the Namibian newspaper Windhoek Observer on 11 March 2000. Mr Hain's declaration was repeated in the South African Parliament by the deputy minister for foreign affairs on 15 March 2000. The applicants stated that an investigation was opened into the allegations by the parquet in Antwerp in February 2000. No proceedings have since ensued. The applicants provided a letter dated 8 November 2000 from the Antwerp procureur stating that the investigation had been closed with a decision not to prosecute or issue charges. A letter (undated but apparently sent in June) from the Belgian Foreign Minister to a Belgian Member of Parliament stated that the British secret service had provided information to the Belgian secret service but that it had not been established on the basis of that information that David Zollmann was guilty of the acts that Mr Peter Hain had accused him of. By letter dated 28 February 2000, the first applicant wrote to Mr Peter Hain denying the facts imputed by the Minister and requesting a meeting with himself and his brother. On 8 March 2000, Mr Peter Hain replied that he stood by the statement which he had made, that the matter was in the hands of the UN Sanctions Committee and that he saw no need for a meeting. On 28 February 2000, the Panel of Experts assisting the UN Angola Sanctions Committee stated in a report that it has received information from several sources that David Zollmann had been involved in importing diamonds to Antwerp for UNITA and that similar allegations had been made publicly. It considered that further investigation was warranted and passed on the information to the Chairman of the Committee. On 12 July 2000, following disclosure of the letter by the Belgian Minister for Foreign Affairs, the first applicant's counsel wrote to Mr Peter Hain requesting that he retract his allegations publicly and meet with the first applicant on his visit to Antwerp in July 2000, or alternatively, to waive the parliamentary privilege attaching to his statements in order to permit the first applicant to take proceedings in the courts. No response was received to this letter. In the report of the Monitoring Mechanism on Angola Sanctions dated 21 December 2000, a detailed analysis of the status of the sanctions on diamond trading in the region was made. David Zollmann was named as the junior partner in the Antwerp firm of Glasol which had created the Cuango Mining Corporation that had been the largest mining operation in the Cuango valley before the imposition of sanctions. In the additional report dated 16 April 2001 reporting on the enforcement of sanctions, no mention was made of either applicant. Since then the applicants have alleged that the stigma attaching to their reputation has led to other businesses refusing to trade with them e.g. providing two letters referring to the appearance of the name of one of the applicants in UN documents concerning diamond smuggling. Words spoken by MPs in the course of debates in the House of Commons are protected by absolute privilege. This is provided by Article 9 of the Bill of Rights 1689, which states: “... the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in a court or place out of Parlyament.” The effect of this privilege was described by Lord Chief Justice Cockburn in the case of Ex parte Watson (1869) QB 573 at 576: “It is clear that statements made by Members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third party.” Statements made by MPs outside the Houses of Parliament are subject to the ordinary laws of defamation and breach of confidence, save where they are protected by qualified privilege. The question whether or not qualified privilege applies to statements made in any given political context turns upon the public interest. In the case of Reynolds v. Times Newspapers Ltd. [2001] 2 AC 127, which concerned allegations made in the British press about an Irish political crisis in 1994, Lord Nicholls of Birkenhead stated in the House of Lords, at page 204: Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegations may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.” Press coverage, to the extent that it fairly and accurately reports parliamentary debates, is generally protected by a form of qualified privilege which is lost only if the publisher has acted “maliciously”. “Malice”, for this purpose, is established where the report concerned is published for improper motives or with “reckless indifference” to the truth. A failure to make proper enquiries is not sufficient in itself to establish malice, but it may be evidence from which malice (in the sense of reckless indifference to the truth) can reasonably be inferred. MPs can waive the absolute immunity which they enjoy in Parliament as a result of section 13 of the Defamation Act 1996, which provides: “(1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament. (2) Where a person waives that protection – (a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct, and (b) none of those things shall be regarded as infringing the privilege of either House of Parliament. (3) The waiver by one person of that protection does not affect its operation in relation to another person who has not waived it. (4) Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who has waived the protection referred to above) from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.” General control is exercised over debates by the Speaker of each House of Parliament. Each House has its own mechanisms for disciplining Members who deliberately make false statements in the course of debates. Deliberately misleading statements may be punishable by Parliament as a contempt. Alternatively, as the parliamentary Select Committee on Procedure (1988-89) has observed: “... there already exists a wide range of avenues which can be pursued by an aggrieved person who wishes to correct or rebut remarks made about him in the House. He can approach his Member of Parliament with a view to his tabling an Early Day Motion, or an amendment where appropriate; there may be cases which can be raised through Questions if some ministerial responsibility can be established; he can petition the House, through a Member; and he can approach directly the Member who made the allegations in the hope of persuading him that they are unfounded and that a retraction would be justified. We believe that in these circumstances, the House would not expect a rigid adherence to the convention that one Member does not take up a case brought by the constituent of another, particularly if the latter was the source of the statement complained of, and so long as the courtesies of proper notification were observed.” A Joint Committee of both Houses of Parliament was set up in July 1997 and tasked with reviewing the law of parliamentary privilege. The Committee received written and oral evidence from a wide variety of sources from within the United Kingdom and abroad and held fourteen sessions of evidence in public. Its report was published in March 1999. Chapter 2 sets out its conclusions on parliamentary immunity: “38. The immunity is wide. Statements made in Parliament may not even be used to support a cause of action arising out of Parliament, as where a plaintiff suing a member for an alleged libel on television was not permitted to rely on statements made by the member in the House of Commons as proof of malice. The immunity is also absolute: it is not excluded by the presence of malice or fraudulent purpose. Article 9 protects the member who knows what he is saying is untrue as much as the member who acts honestly and responsibly. ... In more precise legal language, it protects a person from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament. 39. A comparable principle exists in court proceedings. Statements made by a judge or advocate or witness in the course of court proceedings enjoy absolute privilege at common law against claims for defamation. The rationale in the two cases is the same. The public interest in the freedom of speech in the proceedings, whether parliamentary or judicial, is of a high order. It is not to be imperilled by the prospect of subsequent inquiry into the state of mind of those who participate in the proceedings even though the price is that a person may be defamed unjustly and left without a remedy. 40. It follows that we do not agree with those who have suggested that members of Parliament do not need any greater protection against civil actions than the qualified privilege enjoyed by members of elected bodies in local government. Unlike members of Parliament, local councillors are liable in defamation if they speak maliciously. We consider it of utmost importance that there should be a national public forum where all manner of persons, irrespective of their power or wealth, can be criticised. Members should not be exposed to the risk of being brought before the courts to defend what they said in Parliament. Abuse of parliamentary freedom of speech is a matter for internal self-regulation by Parliament, not a matter for investigation and regulation by the courts. The legal immunity principle is as important today as ever. The courts have a duty not to erode this essential constitutional principle.” Article 40 of the Statute of the Council of Europe provides: “a. The Council of Europe, representatives of members and the Secretariat shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions. These immunities shall include immunity for all representatives to the Consultative Assembly from arrest and all legal proceedings in the territories of all members, in respect of words spoken and votes cast in the debates of the Assembly or its committees or commissions. b. The members undertake as soon as possible to enter into agreement for the purpose of fulfilling the provisions of paragraph a above. For this purpose the Committee of Ministers shall recommend to the governments of members the acceptance of an agreement defining the privileges and immunities to be granted in the territories of all members. In addition, a special agreement shall be concluded with the Government of the French Republic defining the privileges and immunities which the Council shall enjoy at its seat.” In pursuance of paragraph b above, the member States, on 2 September 1949, entered into the General Agreement on Privileges and Immunities of the Council of Europe. This provides, as relevant, as follows: “Representatives to the Parliamentary Assembly and their substitutes shall be immune from all official interrogation and from arrest and from all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions.” “During the sessions of the Parliamentary Assembly, the Representatives to the Assembly and their substitutes, whether they be members of Parliament or not, shall enjoy: a. on their national territory, the immunities accorded in those countries to members of Parliament; b. on the territory of all other member States, exemption from arrest and prosecution. ...” Article 5 of the Protocol to the General Agreement on Privileges and Immunities of the Council of Europe provides: “Privileges, immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned, but in order to safeguard the independent exercise of their functions in connection with the Council of Europe. Consequently, a member has not only the right but the duty to waive the immunity of its representative in any case where, in the opinion of the member, the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded.” Article 9 of the Protocol on the Privileges and Immunities of the European Communities, adopted in accordance with Article 28 of the Treaty establishing a Single Council and a Single Commission of the European Communities, provides: “Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.”