FINAL
AS TO THE ADMISSIBILITY OF
Application No. 18139/91
by Nikolai TOLSTOY MILOSLAVSKY
against the United Kingdom
The European Commission of Human Rights sitting in private on
12 May 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M. NOWICKI
I. CABRAL BARRETO
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 December 1990
by Nikolai Tolstoy Miloslavsky against the United Kingdom and
registered on 26 April 1991 under file No. 18139/91 ;
Having regard to:
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's Partial Decision of 20 February 1992;
- the observations submitted by the respondent Government on
2 June 1992 and the observations in reply submitted by the applicant
on 6 October 1992;
- the submissions of the parties at the oral hearing held on
12 May 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a United Kingdom citizen born in 1935. He
lives in Southall, Berkshire, and is represented before the Commission
by Messrs. Theodore Goddard, solicitors, London.
The facts of the case may be summarised as follows:
In March 1987 a pamphlet written by the applicant was
circulated by a Mr. Watts to parents, boys and staff at Winchester
College. The pamphlet was also circulated to Members of Parliament,
Members of the House of Lords, the press and to former members of the
school. Mr. Watts had a grievance against Lord Aldington, Warden of
Winchester College, in his capacity as Chairman of an insurance
company. The pamphlet is entitled "War Crimes and the Wardenship of
Winchester College" and it refers to events in Austria in May and early
June of 1945. The pamphlet stated, inter alia, the following:
"Between Mid-May and early June 1945 some 70,000 Cossack
and Yugoslav prisoners-of-war and refugees were handed over
to Soviet and Titoist communist forces as a result of an
agreement made with the British 5 Corps administering
occupied Austria. They included a large proportion of
women, children, and even babies. The majority of Cossack
officers and their families handed over held League of
National passports or those of the Western European
countries in which they had found refuge after being
evacuated from Russia by their British and French Allies in
1918-20, and were hence not liable to return under the
terms of the Yalta Agreement, which related only to Soviet
citizens.
...
As was anticipated by virtually everyone concerned, the
overwhelming majority of these defenceless people, who
reposed implicit trust in British honour, were either
massacred in circumstances of unbelievable horror
immediately following their handover, or condemned to a
lingering death in Communist gaols and forced labour camps.
These operations were achieved by a combination of
duplicity and brutality without parallel in British history
since the Massacre of Glencoe. Outside Lienz may be seen
today a small Cossack cemetery, whose tombstones
commemorate men, women and children shot, clubbed, or
bayonetted to death by British troops.
...
The man who issued every order and arranged every detail of
the lying and brutality which resulted in these massacres
was Brigadier Toby Low, Chief of Staff to General
Keightley's 5 Corps, subsequently ennobled by Harold
Macmillan as the 1st Baron Aldington. Since 1979 he has
been Warden of Winchester College, one of the oldest and
most respected of English public schools. Whether Lord
Aldington is an appropriate figure for such a post is
primarily a matter for the College to decide. But it is
also surely a legitimate matter of broader public concern
that a man responsible for such enormities should continue
to occupy a post of such honour and prominence within the
community, in particular one which serves as exemplar for
young people themselves likely one day to achieve high
office and responsibility.
... The truth is, however, that Lord Aldington knows every
one of his pleas to be wholly or in large part false. The
evidence is overwhelming that he arranged the perpetration
of a major war crime in the full knowledge that the most
barbarous and dishonourable aspects of his operations were
throughout disapproved and unauthorised by the higher
command, and in the full knowledge that a savage fate
awaited those he was repatriating.
... Those who still feel that a man with the blood of
70,000 men, women and children on his hands, helpless
charges whom the Supreme Allied Commander was making every
attempt to protect, a suitable Warden for Winchester might
care to ask themselves (or Lord Aldington, if they can
catch him) the following questions:
...
Lord Aldington has been repeatedly charged in books and
articles, by press and public, with being a major war
criminal, whose activities merit comparison with those of
the worst butchers of Nazi Germany or Soviet Russia. ..."
Lord Aldington sued for libel. The proceedings were originally
brought against Mr. Watts and the applicant was joined later. The
allegation was that:
"In their natural and ordinary meaning the words contained
in the said document meant and were understood to mean:
1. That the plaintiff in the full knowledge of the savage
fate of his victims and in the full knowledge that his
actions were throughout disapproved and unauthorised by
higher command, arranged every detail of the massacre of
70,000 men, women and children, and by a combination of
duplicity and brutality without parallel in British history
since the massacre of Glen Coe, compelled his subordinates
to commit horrifying and nightmarish atrocities and was
guilty of gross violation of the laws of war and humanity
and flagrant contravention of the Geneva Convention on
Prisoners of War, and
2. That the plaintiff was a major war criminal whose
activities merit comparison with those of the worst
butchers of Nazi Germany or Soviet Russia."
The defence pleaded "justification" and "fair comment", the
particulars of justification including the following:
"The plaintiff was therefore responsible for the torture, brutal
treatment and/or death of about 35,000 Yugoslavs following the Second
World War."
Lord Aldington initially wanted the trial to be before a single
judge, but the applicant exercised his right to a jury trial.
The trial began on 2 October 1989. On 30 November 1989 the jury
returned its verdict that the statements of fact made in the pamphlet
were not substantially true, that the pamphlet contained expressions
of opinion, that those expressions of opinion were not fair, in the
sense that they could not honestly be made by a fair-minded man, that
they found for Lord Aldington and not for the defendants, and awarded
damages amounting to £1,500,000. An order that the applicant should
pay Lord Aldington's costs was also made.
In the course of argument, the applicant had accepted that, if
the truth of the allegations was not made out, then he would be liable
for "enormous damages in legal and moral terms". An injunction was
granted which, inter alia, restrained the applicant from publishing or
permitting to be published the words contained in the applicant's
leaflet, and also from publishing or permitting to be published:
"any other words or allegations (however expressed) to the
following or any similar effect namely that the Plaintiff in
connection with the handover in 1945 to Soviet or Yugoslav forces
of military or civilian personnel was guilty of disobedience or
deception or criminal or dishonourable or inhumane or other
improper or unauthorised conduct or was responsible for the
subsequent treatment of any such personnel by the Soviets or the
Yugoslavs [the applicant] being at liberty to apply to vary or
discharge this injunction".
The applicant gave notice of appeal, setting out eight grounds
of appeal:
1. The learned judge displayed throughout the course of the
hearing overt animosity towards the defendant.
2. The learned judge sought unfairly to discredit this
defendant's case by continual interruption, sarcasm and
abuse of counsel acting on his behalf.
3. The learned judge insulted and disparaged witnesses
called on the defendant's behalf.
4. At no time did the learned judge display any such
animus or prejudice towards the plaintiff, his counsel
or his witnesses.
5. The learned judge invited the jury to accept statements
made by Dr. Robert Knight on behalf of the plaintiff
about matters of expertise regarding which Dr. Knight was
manifestly unqualified to speak.
6. Above all, the learned judge, throughout his summing-up
wholly or in large part suppressed or ignored many of the
most important aspects of the case for the defence,
presented others in so confused, abbreviated or disparaging
a manner as to nullify their effect; and distorted
others in a fashion calculated seriously to mislead the
jury on issues central to this defendant's case.
7. When directing the jury on the question of damages,
the tenor of the learned judge's remarks was in large
part to urge the jury to award high damages to the
plaintiff and to discount the alternatives which were
reasonably available on the evidence.
8. The damages awarded were in any event unreasonable
and excessive.
Lord Aldington applied for security for costs, that is, that the
applicant should be required to give security an amount which would
cover the costs of Lord Aldington's representation if the appeal were
to be unsuccessful. It was not disputed that the applicant would not
be able to pay Lord Aldington's appeal costs if the appeal were
unsuccessful. The application for costs was heard by the Registrar
of the Court of Appeal on 18 May 1990. The Registrar recalled that
impecuniosity was not a ground for awarding security for costs at first
instance, although it was in respect of the costs of an appeal to the
Court of Appeal. In deciding whether, in the exercise of its
discretion, it would award security for costs, the Court would take
into account the merits or otherwise of the appeal concerned. The
Registrar referred to an open offer by Lord Aldington on 2 February
1990 of an undertaking not to enforce £1,200,000 of the damages
awarded. The Registrar considered that, subject to the question of
whether an appeal on quantum only would be academic because of the
offer to accept reduced damages, security for costs should not be
awarded in respect of the appeal on quantum. As to liability, the
Registrar considered the facts raised by the applicant, together with
purported new evidence, and concluded that, in respect of five points,
his case had "just enough strength to lead [him] to conclude that
security for costs should not be awarded in this case." He stated that
"...It may be that, if (and I emphasise if) Count Tolstoy
succeeds in convincing the Court of Appeal that he has not had
a fair trial, and his case has not been fairly and clearly put
to the jury, the Court of Appeal might well conclude that a new
trial had to be ordered (following the approach adopted recently
by this Court in X v. Cain), notwithstanding the fact that the
chances of the appellant succeeding on the new trial were slim.
Having reached the conclusion that security should not be awarded
even on the liability appeal, it is not necessary for me to deal
with the question whether security on a quantum only appeal would
be called for on the grounds that it was academic."
He decided that security for costs should not be awarded.
Lord Aldington appealed against the Registrar's decision to the
full Court of Appeal, which heard the matter for six days from 9 to 17
July 1990 and gave judgment on 19 July 1990. Sir Stephen Brown,
presiding, recalled the law, and recalled that the Court now had to
consider the application afresh and to decide whether to order security
would amount to a denial of justice to the applicant, having regard to
the merits of his appeal. He then went through the proceedings, noting
that no criticism was made in the applicant's grounds of appeal of the
judge's directions on the law. Criticism was directed particularly at
the way in which the judge behaved to the applicant and the way in
which the judge dealt with three particular issues of fact. He went
on:
"Each member of this court has perused the transcripts with
great care. I have read the transcript of the summing-up
and the transcripts of the addresses of counsel, both
before and after hearing the criticisms which have been
made by Count Tolstoy. I do not consider that Count
Tolstoy's criticisms are justified. The judge clearly left
to the jury the decision on the facts of the case. All the
major matters were in my judgment dealt with fully and
fairly.
The judge's repetition of Mr. Rampton's questions at the
end of his summing-up quite clearly brought to the jury's
minds the matters which the defence contended were of
primary significance. Counsel were given full
opportunities to raise matters of alleged error, and when
they deemed it necessary they did so. Furthermore the
principal witnesses were in the witness box for some 13
days in all. Lord Aldington, who was the central witness
in the case in the sense that it was his conduct which was
the subject of examination, was in the witness box for no
less than six and a half days. It is inconceivable that
the jury did not take fully into account and act on the
evidence of the principal witnesses who were so
comprehensively examined and cross-examined upon all the
material issues in the case.
This was essentially a case for a jury. It is to be
observed that at a preliminary stage when Lord Aldington
had asked for the case to be tried by a judge alone, Count
Tolstoy resisted his application. The case was duly tried
by a jury. In my judgment it was correct that this case
should have been tried by a jury. It was a classic case
for a jury to decide. It is further clear from the judge's
enquiry made in the course of the trial as to the status of
the jurors, though not their identities, that this was an
intelligent jury.
In the result I do not believe that Count Tolstoy has any
reasonable chance of making good his grounds of appeal or
any of them. There is no merit in them.
...
... on the issue of liability I am unable to discern any
merit in the appeal.
The quantum of damage is a very large sum. However, there
is no doubt that the learned judge gave an impeccable
direction on damages. Count Tolstoy has argued that the
judge invited the jury to give excessive damages. A
correct reading of the transcript shows that he did just
the opposite. There is no merit in that submission. The
award was entirely within the jury's discretion and they
received a very full direction about it. I have no doubt
that it was meant to mark their view of the enormity of the
gross libel which had been published and persisted in.
...
In my judgment this is a clear case for an order for security for
costs. The Registrar at the hearing before him considered the
amount of the estimated costs of the plaintiff on the proposed
appeal and he reduced his solicitors' estimate of £188,000 to
£124,900, using his knowledge and expertise in this particular
field. I would adopt the learned Registrar's approach on that
particular matter. Accordingly I would allow the plaintiff's
appeal from the Registrar, and order that security for costs be
provided by the defendant in the amount of £124,900 within 14
days."
Lord Justice Russell, agreeing, added:
"The court will be very slow to interfere with the jury's
verdict unless there has been some material irregularity in
the proceedings which renders the verdict unsafe or
unsatisfactory, or it can properly be said that the verdict
is perverse. Much the same considerations must apply in
the instant case.
As to any irregularity in the proceedings, I detect none.
...
This case, and the jury's verdict, depended essentially
upon the veracity of Lord Aldington. No document or
documents were produced which on their face could destroy
Lord Aldington's credibility. If the jury had disbelieved
Lord Aldington, there would have been an end of his case.
The fact that the jury found in his favour and awarded him
the damages that they did demonstrates that upon the vital
issues of the case they must have accepted the plaintiff's
evidence. Was that a course which was open to the jury? In
my judgment, it plainly was.
The reality of this case is that Count Tolstoy at all
stages wanted the verdict of a jury. Lord Aldington,
because of the costs involved, wanted trial by judge alone.
Count Tolstoy's preference prevailed. He has fought this
case and he has lost. He has lost because it was the jury
that found against him. They saw and heard the witnesses.
They were not misled by the judge. The verdict was the
jury's verdict and Count Tolstoy should now accept it. If
he cannot accept it he should at least acknowledge that it
was a verdict the jury was entitled to return.
There is not in my judgment the remotest chance of the
Court of Appeal interfering with the jury's finding in the
plaintiff's favour and directing a retrial of that issue,
either on the basis that the verdict cannot stand or on the
basis of fresh evidence which Count Tolstoy seeks to
introduce. ...
Finally, upon the issue of damages, Count Tolstoy had been
offered in an open letter the substitution of £300,000 for
the one and a half million pounds awarded by the jury. The
libel remains as serious a libel as it is possible to
imagine. Any appeal upon quantum alone would be no more
than an academic exercise. Count Tolstoy wishes to re-open
the whole case. In my judgment, the defendant being
impecunious, justice demands that he should provide
security for the plaintiff's costs of any appeal."
Lord Justice Beldam, also agreeing, considered that:
"It would be difficult to conjecture an allegation more
calculated to bring the respondent into the hatred and
contempt of his fellow men and the evidence showed that it
was deliberately circulated with the aim of encouraging the
respondent to sue him, thus giving the appellant the
opportunity to challenge in public the respondent's conduct
45 years ago. ...
That this archaeology of the archives failed to convince
the jury of the truth of the very grave charges levelled
against the respondent was amply demonstrated by their
award to the respondent of the unprecedented and enormous
sum of damages of £1.5 million. It was as resounding a
demonstration of public reproof of the appellant's conduct
as could possibly be imagined."
He also stated:
"It is not for this court to grant a retrial after the
verdict of a jury, even if it thought that a reasonable
jury ought to have found differently. The test which, on
the hearing of the appeal, this court would have to apply
is whether the finding of the jury is absolutely
unreasonable that it can be said that they have not
performed the judicial duty cast upon them. Again I have
listened to the skilful development of the facts and
evidence by the appellant. He has failed to satisfy me that
he has any reasonable chance of success in this appeal.
Even if he persuaded the court to grant a retrial on the
issue of the amount of the damages, I would regard as
negligible the prospect of any jury, doing their judicial
duty, awarding the respondent [Lord Aldington] less then
the sum which he has in reality already offered to accept
in compromise of this appeal."
The Court ordered the applicant to provide security for Lord
Aldington's costs in respect of the appeal in the sum of £124,900. The
Court further ordered that in the absence of such payment the
applicant's appeal stand dismissed. A request by the applicant for
more than 14 days to attempt to raise the money was refused. The
applicant was ordered to pay Lord Aldington's costs in the security for
costs proceedings.
The applicant did not furnish the required security and his
appeal was dismissed on 3 August 1990.
COMPLAINTS
The applicant complains that his rights under Article 10 of the
Convention have been violated in that the judgment entered against him
on 30 November 1989 constituted an unjustified interference with his
right to freedom of expression.
The applicant also complains, initially under Article 13 and
latterly under Article 6 of the Convention, that the Court of Appeal
ordered that his appeal stand dismissed in the event that he fail to
pay £124,900 into Court as security for Lord Aldington's estimated
costs in respect of the appeal.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 December 1990 and registered
on 26 April 1991.
On 20 February 1992 the Commission declared the application
partly inadmissible and decided to request the parties to submit their
written observations on the admissibility and merits of other aspects.
The respondent Government submitted their observations on 2 June
1992 and the applicant submitted his observations on 6 October 1992.
On 8 February 1993 the Commission decided to hold an oral hearing
on the admissibility and merits of the application. The respondent
Government submitted further observations on 23 April 1993. At the
hearing, which was held on 12 May 1993, the parties were represented
as follows:
For the Government
Mrs. A. GLOVER - Agent
Mr. David PANNICK QC - Counsel
Mr. J. WATHERSTON, Lord Chancellor's Dept. )
Mrs. Emma MATTHEWS, Lord Chancellor's Dept. )Advisers
Mr. Iain CHRISTIE, Foreign & Commonwealth Office)
For the applicant
Mr. Anthony LESTER QC - Leading Counsel
Ms. Dinah ROSE - Junior Counsel
The applicant was also present.
THE LAW
The applicant makes complaints under Articles 6 and 13
(Art. 6, 13) of the Convention. As the requirements of Article 13 are
less strict than those of Article 6 (Art. 6) (see, for example, Eur.
Court H.R., Kamasinski judgment of 19 December 1989, Series A no. 168,
p.45, para. 110), the Commission finds that these complaints fall to
be considered under Article 6 (Art. 6) of the Convention alone.
Article 6 (Art. 6) of the Convention provides, so far as
relevant, as follows:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law. ..."
The applicant considers that the requirement that he find
security for costs before being allowed to continue with his appeal
denied him access to court, contrary to Article 6 (Art. 6) of the
Convention. The Government consider, given that the proceedings were
civil and that the applicant's appeal was found by the Court of Appeal
in the security proceedings not to have any real prospects of success,
that the circumstances of the case do not amount to a denial of access
to court.
The applicant also alleges a violation of Article 10
(Art. 10) of the Convention.
Article 10 (Art. 10) of the Convention provides, so far as
relevant, as follows:
1. Everyone has the right to freedom of expression...
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society ... for the protection
of the reputation or rights of others ...
The applicant considers that the circumstances of the award of
£1,500,000 and the injunction ordered against him were such that that
the interference with his Article 10 (Art. 10) rights was neither
prescribed by law nor necessary in a democratic society.
The Government submit that the order of damages and costs and the
injunction in the present case were formalities, restrictions or
penalties which were prescribed by law and necessary in a democratic
society for the protection of the rights of Lord Aldington. They also
point to the wide margin of appreciation enjoyed by States in
establishing necessity in a democratic society.
The Commission finds that the complaints raised by the present
application involve complex issues of law under the Convention, the
determination of which must be reserved to an examination of the
merits.
The application cannot therefore be declared manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other ground for declaring it inadmissible has been
established.
For these reasons the Commission by a majority
DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits
of the case.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NORGAARD)
Full & Egal Universal Law Academy