CASE OF MAMERE v. FRANCE
Violation of Art. 10
András Baka;Elisabet Fura;Jean-Paul Costa;Mindia Ugrekhelidze
4. The applicant was born in 1948 and lives in Paris. A member and leader of the “green” political party Les Verts, and former regional councillor and member of the European Parliament, since 1987 he has been mayor of Bègles and Vice-President of the Urban Community of Bordeaux and, since 1997, member of parliament for La Gironde. He has also worked as a journalist – from 1977 to 1992, for example – for the State television channel Antenne 2. 5. In October 1999 the applicant took part in the recording of an infotainment programme for television called Tout le monde en parle (“Everyone’s talking about it”), presented by Thierry Ardisson, which was aired on the State television channel France 2 during the night of 23 to 24 October 1999. During the programme Michel Polac, another guest personality, mentioned the Chernobyl nuclear accident of 26 April 1986 and spoke of the emotion he had felt on reading a book dedicated to the victims of the disaster. The applicant replied as follows (extract from the 3 October 2001 judgment of the Paris Court of Appeal): “Only a few weeks ago some mushrooms imported into France were found to contain caesium and that is the result of Chernobyl. I was presenting the 1 o’clock news on the day of the Chernobyl disaster in 1986; there was a sinister character at the SCPRI called Mr Pellerin who kept on telling us that France was so strong – the Asterix complex – that the Chernobyl cloud had not crossed our borders.” 6. At the time of the Chernobyl disaster Mr Pellerin, a radiologist and qualified senior biophysics teacher, was head of the Central Service for Protection against Ionising Radiation (Service central de protection contre les rayons ionisants – “the SCPRI”). Under the dual authority of the Health and Labour Ministries, one of the SCPRI’s tasks was to monitor contamination levels in France and alert the above ministries in the event of a problem; it was replaced in 1994 by the Office for Protection against Ionising Radiation (Office de protection contre les rayonnements ionisants – “the OPRI”). Mr Pellerin was placed under investigation on 31 May 2006 for “aggravated deception” by the first investigating judge at the Paris tribunal de grande instance, as part of an investigation opened after persons suffering from thyroid cancer, the Commission for Independent Research and Information on Radioactivity (“the CRIIRAD”) and the French Association of Thyroid Disease Sufferers (“the AFMT”) lodged a complaint in March 2001 against a person or persons unknown, together with an application to join the proceedings as civil parties claiming damages, for failure to protect the population against radioactive fallout from the Chernobyl accident, alleging in particular that official authorities had lied and played down the pollution of the air, soil and foodstuffs. 7. By summonses served on 18 and 19 January 2000, Mr Pellerin brought proceedings directly against the applicant in the Paris Criminal Court for public defamation of a civil servant, a punishable offence under sections 29 and 31 of the Freedom of the Press Act of 29 July 1881. He also brought proceedings against the television channel France 2 and its director of publication, Mr Marc Tessier. In a judgment of 11 October 2000, the court found Mr Tessier and the applicant guilty (as principal and accessory respectively), sentenced them each to pay a 10,000 French francs (FRF) fine and, jointly and severally, to pay FRF 50,000 in damages, declared the France 2 television company civilly liable and ordered the publication in a newspaper, at the defendants’ cost, of the following announcement: “In a judgment delivered on 11 October by the Paris Criminal Court (Press Division), Mr Marc Tessier, director of publication of the national television company France 2, and Noël Mamère were sentenced to fines and to pay damages to Mr Pierre Pellerin, for having committed against him the offence of defamation of a civil servant, by making accusations against him on the Tout le monde en parle television programme aired on 23 October 1999.” 8. The applicant appealed, but the Paris Court of Appeal upheld the judgment in respect of the guilty verdict, the sentences and the civil claims, in a judgment of 3 October 2001 worded as follows: “... Defamation Mr Mamère accuses Mr Pellerin of repeatedly (“kept on”) claiming (“telling us”) at the time of the Chernobyl disaster that the radioactive cloud would not cross France’s borders. He further specifies that the civil party worked for the SCPRI (Central Service for Protection against Ionising Radiation), thereby reminding us that because of his expertise and his role he could not have been unaware of what was actually happening and what is now common knowledge. Mr Mamère thus accuses Mr Pellerin of lying to journalists, and therefore to the general public, concerning the passage of the radioactive cloud over France, when the file clearly shows that Mr Pellerin never said any such thing, and that he had actually said that the level of radioactivity had increased in France – which obviously meant that the cloud had passed over the country – but that the increase would be without any harmful effect on public health, a claim which has yet to be disproved with any certainty. To accuse Mr Pellerin of having knowingly supplied, in his capacity as a specialist on radioactivity issues, erroneous or even untrue information about such a serious problem as the Chernobyl disaster, which was of potential consequence for the health of the French population, is undeniably damaging to his honour and his reputation and is therefore defamatory. The fact that Mr Mamère’s comments, according to his counsel, were uttered in a humorous tone, as a quip, makes them no less defamatory and to acknowledge that is not a violation of Article 10 of the Convention ... Good faith As the events criticised occurred so long ago, the defendant has adduced no proof that his defamatory allegations are true, but claims that he acted in good faith. Moderation of tone In using such terms as “kept on telling us”, Mr Mamère insists strongly and in no uncertain terms that Mr Pellerin deliberately and repeatedly lied, and that he constantly and knowingly distorted the truth. He also describes Mr Pellerin as a “sinister” character, which is not a neutral expression, particularly when used in connection with something like the Chernobyl disaster. He also says the civil party suffers from the “Asterix complex”, thereby subjecting him to derision and undermining his credibility. The insistence shown by Mr Mamère, the peremptory nature of his comments and the pejorative characteristics he attributes to the civil party reveal a lack of moderation in his remarks. As one of the conditions of good faith is lacking, the defendant cannot be considered to have acted in good faith and there is no need to examine the other aspects of good faith. He must therefore be convicted. ...” 9. The Criminal Division of the Court of Cassation dismissed an appeal on points of law lodged by the applicant, Mr Tessier and France 2 based, inter alia, on an alleged violation of Article 10 of the Convention. The judgment, delivered on 22 October 2002, reads as follows: “... The terms of the impugned judgment and the examination of the case file place the Court of Cassation in a position to affirm that the Court of Appeal, for reasons which are neither insufficient nor contradictory and which address the essential grounds raised in the pleadings submitted to it, correctly assessed the meaning and scope of the remarks impugned in the summons and rightly denied the defendants the benefit of good faith, after finding, without contravening the provisions of Article 10 of the Convention ... that the said remarks amounted to defamation. For the remainder, the Court of Appeal correctly considered that the director of publication, whose duty it is to supervise and verify every pre-recorded programme the channel broadcasts, is answerable in law for any remarks made in the course of the programme which are found to be defamatory. ....” 10. The applicant adduced a copy of a Ministry of Agriculture press release dated 6 May 1986, which reads as follows: “French soil is far enough away to have been completely spared by the radioactive fallout from the accident at the Chernobyl power station. At no time has the recorded increase in radioactivity levels been a threat to public health. The Ministry of Agriculture has readings taken by the Central Service for Protection against Ionising Radiation (SCPRI), which answers to the Ministry of Social Affairs and Employment. According to the SCPRI the maximum airborne radioactivity levels have always remained entirely negligible. France has asked the European Economic Community to put in place a uniform monitoring procedure, without delay, which all countries could apply in respect of non-member countries, based on the recommendations of the International Commission on Radiological Protection. Such measures should on no account hinder intracommunity exchanges. Furthermore, we have asked all the member States to inform their partners of any measurements taken and their results. Special precautionary measures have been put in place in certain member States in respect of French products. This is quite unnecessary. The Ministry of Agriculture will make every effort to see to it that the free movement of all French products towards these countries is restored as soon as possible.” The applicant also adduced an extract of the transcript of the statement made by the Minister of Industry to the Senate on 23 May 1986; it reveals in particular that between the Chernobyl accident and that date the SCPRI issued at least twenty-five statements about the accident. 11. The applicant further adduced a document, dated 23 November 2005, entitled “Recapitulation of the mission completed by the two experts in accordance with the orders of 6 February 2002 and 16 July 2003 of [the] ... first investigating judge at the Paris tribunal de grande instance”. It is the opinion of two judicial experts appointed by the judge in charge of the investigation mentioned in paragraph 6 above to analyse, among other things, the sealed samples collected by the SCPRI at the time of the Chernobyl accident and determine what the SCPRI knew. The “general conclusions” of the opinion read as follows: “At this stage in our investigation it is clear that the SCPRI was very promptly supplied with all the scientific data in the possession of its network and the information it requested urgently from various bodies concerning radioactive contamination in mainland France and Corsica, for most of the radioactive isotopes, including iodine 131, iodine 132, tellurium 132, caesium 134 and caesium 137. The information was interpretable and location-specific. The SCPRI was also aware that the results for the iodine isotopes were obtained using filters which captured only a small percentage, which meant that the readings for iodine 131 and 132 were well below the real values. The release of this information by the SCPRI to the decision-making authorities and the public was neither complete nor precise and certain values were concealed. The use of different units, some of which were no longer in current use, made comparisons or evaluations very difficult, even for specialists, and therefore even more so for the decision-making authorities and the public. The publication of mean values per département, region or part of the country helped to mask the reality of contamination concentrated in certain localities, later referred to as “leopard spots”, linked to weather conditions – particularly rainfall – and the landscape. In this manner the presence, especially in the first fortnight after the clouds passed, of quantities of radioactive isotopes which were dangerous, particularly for fœtuses and for young children, was hidden from the decision-making authorities and the public. Telex messages contained in the sealed evidence also show how, in France and even in the international scientific community, partial or mean values were imposed (some mean values being based on single readings), which led to the publication of inaccurate maps. In our opinion mapping is possible only at the level of the “leopard spots”, where populations living in relative isolation may have been subjected to levels of radiation similar to those in certain territories close to the Chernobyl power station in April-May-June 1986. Attempts are still being made today to produce these maps which, in these conditions, cannot reflect what really happened in France in the days following the Chernobyl accident, and this is still a bone of contention. The information of the IRSN [Institut de radioprotection et de sûreté nucléaire – Institute for Radioprotection and Nuclear Safety] sheds some light on the subject, but it was received too late to be included in this report within the allotted time. Finally, there is information in the sealed evidence concerning the respective roles by the various State authorities in such circumstances [sic]. There was a major controversy over the subject, including whether informing the public was the role of the SCPRI or the SGCISN [Secretary General of the Interministerial Nuclear Safety Committee], whose job it was according to interministerial directive SGSN 5400 on informing the public and the media in the event of a nuclear safety incident or accident. This aspect of the evidence cannot be neglected.” 12. The relevant provisions of Chapter IV of the Freedom of the Press Act of 29 July 1881 provide: “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 impugned 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.” “Defamation 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 [in speeches, shouts or threats made or uttered in public places or meetings, or in written or printed matter, drawings, engravings, paintings, emblems, images or any other written, spoken or pictorial medium sold or distributed, offered for sale or exhibited in public places or meetings, or on placards or posters on public display, or in any audiovisual medium] shall be punishable [by a fine of 45,000 euros]. ...” “The truth of the defamatory allegation, but only when it relates to functions, may be established in the ordinary way in the case of allegations against State institutions, the army, navy or air force, the public authorities and any of the persons listed in section 31. The truth of defamatory and insulting allegations may also be established against directors or administrators of any public industrial, commercial or financial company. The truth of the defamatory allegations may always be established except: (a) when the allegation concerns the person’s private life; (b) when the allegation refers to events dating back more than ten years; (c) when the allegation refers to events in respect of which an amnesty has been granted or which are time-barred or gave rise to a conviction which has been expunged by rehabilitation or review. Subsections (a) and (b) above shall not apply when the facts are offences provided for and punishable under Articles 222-23 to 222-32 and 227-22 to 227-27 of the Criminal Code and were committed against a minor. In the cases provided for in the previous two paragraphs, rebutting evidence is reserved. If proof of the defamatory allegation is established, the defendant shall be acquitted. In any other circumstances and in respect of any other unspecified person, when the allegation has given rise to proceedings brought by the prosecution service or a complaint lodged by the defendant, while the resulting investigation takes its course the proceedings and trial for defamation shall be suspended.”