CASE OF ALLENET DE RIBEMONT v. FRANCE
Violation of Art. 6-2;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Lack of jurisdiction (injunction to State)
7. Mr Patrick Allenet de Ribemont is a company secretary. He currently lives in Lamontjoie (Lot-et-Garonne). 8. On 24 December 1976 Mr Jean de Broglie, a Member of Parliament (département 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 Rôtisserie de la Reine Pédauque". 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. 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 thepeople involved are now under arrest after thearrest of Mr De Varga-Hirsch. It is a very simplestory. A bank loan guaranteed by Mr de Broglie wasto be repaid by Mr Varga-Hirsch and Mr de Ribemont. A journalist: Superintendent, who was the key figurein this case? De Varga? Mr Ottavioli: I think it must have been Mr De Varga. Mr Ducret: The instigator, Mr De Varga, and hisacolyte, Mr de Ribemont, were the instigators of themurder. The organiser was Detective Sergeant Simonéand the murderer was Mr Frèche. 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 DetectiveSergeant Simoné and the murderer was Mr Frèche. Mr Ottavioli: That is correct. I can ...[unintelligible] the facts for you by saying thatthe case arose from a financial agreement betweenthe victim, Mr de Broglie, andMr Allenet de Ribemont and Mr Varga. Mr Poniatowski: It is a very simple story. A bankloan guaranteed by Mr de Broglie was to be repaid byMr Varga-Hirsch and Mr de Ribemont. A journalist: Superintendent, who was the key figurein this case? De Varga? Mr Ottavioli: I think it must have been Mr De Varga. Mr Jean-François 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 Simoné, 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, Gérard Frèche, 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 Simoné’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 Simoné. Before contacting Frèche 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. 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. 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. ..." 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." 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 Trésor) 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 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 instigatorsof the murder. The organiser was DetectiveSergeant Simoné and the murderer was Mr Frèche’. 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. ..." 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 Simoné and the murderer was Mr Frèche’. 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 Rôtisserie de la Reine Pédauque 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. ..." 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 Tancrède 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 Tancrède 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 Tancrède 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 Tancrède 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. ..."