Tolstoy Miloslavsky v. the United Kingdom



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)