EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 18139/91

Nikolai Tolstoy Miloslavsky

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 6 December 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 – 14). . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2 – 4 ). . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5 – 9) . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 10 – 14) . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 15 – 30) . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 15 – 26) . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 27 – 30) . . . . . . . . . . . . . . . . .11

III. OPINION OF THE COMMISSION

(paras. 31 – 57) . . . . . . . . . . . . . . . . . . . .15

A. Complaints declared admissible

(para. 31) . . . . . . . . . . . . . . . . . . . .15

B. Points at issue

(para. 32) . . . . . . . . . . . . . . . . . . . .15

C. As to Article 6 para. 1 of the Convention

(paras. 33 – 44) . . . . . . . . . . . . . . . . .15

D. As to Article 10 of the Convention

(paras. 45 – 55) . . . . . . . . . . . . . . . . .17

E. Recapitulation

(paras. 56 – 57) . . . . . . . . . . . . . . . . .21

DISSENTING OPINION of Messrs. Weitzel, Busuttil, Gözübüyük,

Reffi and Cabral Barreto. . . . . . . . . . . .22

APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .23

APPENDIX II PARTIAL DECISION AS TO THE ADMISSIBILITY . . . . .24

APPENDIX III FINAL DECISION AS TO THE ADMISSIBILITY . . . . . .33

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. 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.

3. The application is directed against the United Kingdom whose

Government are represented by their Agent, Mrs. A. Glover, Foreign and

Commonwealth Office, London.

4. The application concerns libel proceedings brought against the

applicant following the distribution of a pamphlet accusing

Lord Aldington, Warden of Winchester College, of war crimes in May and

June 1945. It raises issues under Article 6 para. 1 and Article 10 of

the Convention.

B. The proceedings

5. The application was introduced on 18 December 1990 and registered

on 26 April 1991.

6. On 20 February 1992 the Commission declared the application

partly inadmissible and adjourned its examination of the remainder of

the application.

7. At the invitation of the Commission written observations were

submitted by the respondent Government on 2 June 1992 and observations

in reply were submitted by the applicant on 6 October 1992.

8. An oral hearing was held on 12 May 1993 after which the

application was declared admissible. At the hearing the parties were

represented as follows: for the Government: Mrs. A. Glover, Agent,

Mr. David Pannick QC, Mr. J. Witherston and Mrs. Emma Matthews, Lord

Chancellor’s Dept., Mr. Iain Christie, Foreign & Commonwealth Office;

for the applicant: Mr. Anthony Lester QC, Ms. Dinah Rose.

9. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties’ reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present report

10. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

A. WEITZEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

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.A. NOWICKI

I. CABRAL BARRETO

11. The text of this Report was adopted on 6 December 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

12. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the

Convention.

13. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission’s

decision on the admissibility of the application as Appendix II.

14. The full text of the parties’ submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

15. 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 Nations 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. …”

16. Lord Aldington sued for libel. The proceedings were originally

brought against Mr. Watts and the applicant was joined later at his own

request.

In his statement of claim Lord Aldington claimed 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.”

17. 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.”

18. 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. The judge devoted some

10 pages of his summing-up to the question of the assessment of damages

if defamation was established. He advised the jury, inter alia, as

follows:

“… Let us now, members of the jury, … deal with the aspect

of damages… I have to give you this direction in law because

damages may arise … If the plaintiff wins, you have got to

consider damages … the means of the parties – the plaintiff or

the defendant – is immaterial …

Neither, as I think I said earlier but I say it now, is the

question whether Lord Aldington or Count Tolstoy, or for that

matter Mr. Watts, have been or will be financially supported by

any well wishers as to damages relevant at all. Nor is it

relevant the undoubted fact that legal aid is not available in

libel cases to a plaintiff or a defendant. All irrelevant, and

if it is to be changed it is up to Parliament to do something

about it…

… what you are seeking to do, what a jury has to do, is to fix

a sum which will compensate the plaintiff – to make amends in

financial terms for the wrong done to him, because wrong has been

done if you have got to the stage of awarding damages. It is not

your duty or your right to punish a defendant …

What [Lord Aldington] does claim, of course, is for ‘general

damages’, as lawyers call it, a sum of money to compensate him.

First of all, you have to take into account the effect in this