Swiss Federal Supreme Court
6P.17/2003/dxc
Decision of
Criminal
Court of Cassation
Composition of the Court Justices: Schneider
(President), Wiprächtiger,
Kolly, Karlen,
Pont Veuthey (Substitute).
Clerk of the Court: Denys
Parties Pascal Diethelm, 1204
Jean-Charles Rielle, 1211 Geneva 4,
appellants,
represented by Christian
Pirker, attorney-at-law,
place du Molard 7, case
postale 3534,
1211
v.
respondent,
represented by Michel A.
Halpérin, attorney-at-law,
avenue Léon-Gaud 5, 1206
Public Prosecutor of the
place du Bourg-de-Four
1, case postale 3565,
1211
Court of Appeal of the
Criminal Division, case postale 3108,
1211
Issues Criminal
proceedings, arbitrariness,
constitutional complaint
against the decision of the Court of Appeal of the Canton of Geneva, Criminal
Division, of
Facts
A.
By judgement of 24 May 2002 the Tribunal de Police of the Canton of
Geneva, finding Jean-Charles Rielle and Pascal Diethelm guilty of defamation
(art. 173 CP [Code pénal suisse =
Swiss Criminal Code) condemned them to pay a fine of CHF 4,000 each. They were accused of drafting and publicising
during a press conference held on
B.
By decision of
Briefly, the facts of the case are
as follows:
On 29 March 2001, Jean-Charles
Rielle and Pascal Diethelm made available for publication a press release
entitled “Geneva at the centre of an unprecedented scientific fraud:
overwhelming evidence against the activities of ‘Geneva’ professor Ragnar
Rylander”. In the text, they indicated
that Ragnar Rylander, professor of hygiene at the Faculty of Medicine of the
On
According to the Criminal Division
of the Geneva Court of Appeal, Jean-Charles Rielle’s and Pascal Diethelm’s
statements denouncing Ragnar Rylander as being responsible for an
“unprecedented scientific fraud”, being “secretly employed by Philip Morris”
and being “one of its most highly paid consultants”, made him appear as
contemptible and his conduct contrary to that of an honourable and respectable
man, and especially of a respectable scientist.
Those statements therefore constituted an attack on a person’s honour
and were liable to fall within the ambit of art. 173(1) para. 1 CP. Jean-Charles Rielle and Pascal Diethelm were
allowed to produce evidence of the truth of their statements within the meaning
of art. 173(2) CP, which provides in particular that the accused shall not be
punished if he can demonstrate the veracity of his allegations. The Criminal Division examined whether the
three allegations cited above were true.
It considered as proven the fact that Ragnar Rylander was “secretly
employed by Philip Morris” and that he had been “one of its most highly paid
consultants”. However, it did not
consider as proven his participation in an “unprecedented scientific
fraud”. Given the absence of proof in
respect of this injurious statement, the Criminal Division upheld the guilty
verdict, reducing the amount of the fine imposed by the court of first
instance.
C.
Jean-Charles Rielle and Pascal
Diethelm have filed a constitutional complaint with the Federal Supreme Court
against the decision of
Ragnar Rylander moves for dismissal
of the complaint.
The Public Prosecutor of the Canton
of Geneva moves for dismissal of the complaint.
The Criminal Division of the Geneva
Court of Appeal refers to the arguments set forth in its decision.
In law, the Federal Supreme Court finds as follows:
1.
A constitutional complaint may be
filed with the Federal Supreme Court against a cantonal decision on the grounds
of a breach of citizens’ constitutional rights (art. 84 para. 1a OJ [Loi fédérale d’organisation judiciaire =
Federal Rules on the Organisation of the Judiciary]. It is not admissible, on the other hand, in
respect of alleged breaches of federal law, which are open to appeal for annulment
(art. 269 para. 1 PPF [Loi fédérale sur
la procédure pénale = Federal Rules of Criminal Procedure]; this latter
type of grievance thus cannot be invoked within the framework of a
constitutional complaint, which is of a subsidiary nature (art. 84 para. 2 OJ;
art. 269 para. 2 PPF).
Pursuant to art. 90 para. 1a OJ, the
complaint must, upon pain of otherwise being declared inadmissible, contain a
concise account of the constitutional rights or legal principles that have been
violated and specify what the violations consist of. Seised of a constitutional complaint, the
Federal Supreme Court therefore does not have to verify whether the contested
decision is in all respects conform to law or equity; the Court is bound by the
elements invoked in the complaint and can rule solely on the grievances of a
constitutional nature that the appellant has not only invoked but has also
adequately argumented (ATF [Arrêt du
Tribunal fédéral = decision of the Federal Supreme Court] 127 I 38 point
3c, p. 43; 126 III 534 point 1b, p. 536; 125 I 71 point 1c, p. 76). Moreover, the Federal Supreme Court does not
address objections raised by the appellant that go beyond the scope of this
specific procedure (ATF 125 I 492 point 1b, p. 495).
2.
2.1 Invoking arbitrariness in the evaluation
of evidence, the appellants claim to have demonstrated the truth of their
assertion that the respondent took part in “an unprecedented scientific fraud”.
The notion of scientific fraud does
not fall within the sphere of federal law.
Determining the existence of such fraud belongs to the establishment of
facts. It is on a case-by-case basis,
taking full account of the specific circumstances, that such a question must be
resolved. Depending on the scientific
area concerned, in order to do this the judge might consult for guidance such
material as the guidelines of the Académie
Suisse des Sciences Médicales [Swiss Academy of Medical Sciences (SAMS)],
in particular those relating to scientific integrity in medical and biomedical
research, June 2002 version, which deal with fraud in scientific activity (§
3). The technical nature of the issue to
be settled may also lead the judge to appoint an expert. This being said, since the existence or
otherwise of the alleged fraud is a factual matter, a constitutional complaint
may be brought before the Federal Supreme Court for arbitrariness in the
establishment of facts and evaluation of evidence. That is precisely what the
appellants have done.
2.2
Seised
of a constitutional complaint that calls into question the evaluation of
evidence, the Federal Supreme Court examines only whether the cantonal judge
has exceeded his discretionary power and established facts in an arbitrary
manner (ATF 127 I point 2a, p. 41; 124 I 208 point 4, p. 211; 120 Ia 31 point
2d, pp. 37-38).
According to case law, a decision is
qualified as arbitrary if it seriously flouts a clear and unquestioned legal
principle or rule, or if it offends the sentiment of justice or equity in a
shocking manner. In other words, a decision
can be justifiably annulled only if it is indefensible, if it is in manifest
contradiction with the actual situation, if it was adopted without an objective
reason or in breach of an undisputed right.
It is not sufficient for the reasoning behind it to be indefensible; the
decision must furthermore be arbitrary with regard to its outcome (ATF 128 I
273 point 2.1, p. 275; 127 I 54 point 2b, p. 56; 126 I 168 point 3, p. 170).
2.3
The Criminal Division recognised that the
respondent had been secretly employed by Philip Morris, noting in particular
that he had entered into a consultancy agreement with the company in 1972;
vis-à-vis the outside he had done everything so as not to let those links be
known, in order to, in his own words, “retain as far as possible the image as
an independent scientist”; following the publication of an article in the
“European Journal of Public Health” he had attempted to conceal the existence
of a formal agreement concluded with Philip Morris. The Criminal Division also considered as
proven the appellants’ allegation that the respondent was “one of Philip
Morris’s most highly paid consultants”, noting in this respect that several
documents showed the respondent’s annual remuneration to have at times reached
USD 85,000, a significant amount considering that only 10% of his work was
devoted to research connected with the effects of tobacco.
2.4 As regards the allegation of “an
unprecedented scientific fraud”, the Criminal Division stated the following:
The respondent has had frequent
contacts with Philip Morris for many years.
These contacts are troubling for several reasons: in 1991, within the
framework of a study on respiratory diseases in children, the respondent
modified a data base so that no link could be made between passive smoking and
the frequency of respiratory infections.
At an international conference in May 1992 he affirmed that no relation
had been found between respiratory infections in children and their exposure to
smoke; two months earlier, however, he had agreed to have his name on a
document distributed to participants in a meeting of epidemiologists; the
document in question indicated that a correlation had been found between
passive smoking and the frequency of bronchitis in children. In 1997, he expressed his unease about
meeting a scientist in the presence of representatives of Fabriques de Tabac Réunies, a subsidiary of Philip Morris, on the
grounds that it might prove prejudicial to him for until then he had always
striven to “retain as far as possible the image as an independent scientist”;
such a remark implies that he was precisely not an independent scientist. His independence is also seriously
compromised by the correspondence he exchanged with Philip Morris
representatives on the occasion of conferences organised by him in 1974 and
1981. Furthermore, the conviction
expressed by the President of Reynolds Tobacco in 1984 shows that the “Rylander
symposium” was a useful tool in combating the recognition of the harmfulness of
passive smoking.
According to the Criminal Division,
the above-mentioned elements demonstrate that the respondent did not hesitate
to deceive the general public in order to show himself favourable to the
tobacco company that was paying him; in particular, the study on respiratory
diseases in children in which he altered the data base so that no link could be
made between passive smoking and the frequency of respiratory infections,
appears fraudulent.
The appellants invoke these various
elements. It can be pointed out that, of these, manipulation of data or failing
to disclose a conflict of interest are liable to constitute scientific fraud
within the meaning of SAMS guidelines relative to scientific integrity in
medical and biomedical research (§ 3).
Independently of that reference, the specific elements cited by the
Criminal Division point to improper scientific conduct and are consequently a
clear indication of fraud. The Criminal
Division itself speaks of a fraudulent study and of the general public being
deceived.
Notwithstanding the above, the
Criminal Division considered that “an unprecedented scientific fraud” had not
been proven. It explained that the terms used by the appellants went far beyond
the truth; in fact, it maintained that they gave the impression that the respondent’s
whole career had been nothing but a vast deception; being exaggerated, such
statements could not be tolerated (see the contested decision, p. 16).
The above argumentation is not
comprehensible. The Criminal Division
does not indicate how it reached the conclusion that the appellants’ allegation
referred to the respondent’s entire career.
The appellants’ press release, as outlined in the contested decision (p.
3), specifically denounces the respondent’s hidden ties to the tobacco industry
and his manipulation of a data base relating to a study of passive smoking in
children – the very elements that the Criminal Division found to be true. Nor does the Criminal Division explain why
the terms “unprecedented scientific fraud” constitute an exaggeration. This is not the conclusion that springs to
mind. In particular, the term
“unprecedented” brings out the rare nature and the seriousness, from a
scientific viewpoint, of the conduct at issue.
Now, it is easily conceivable that for members of the scientific
community the accusations levelled at the respondent and held as true by the
Criminal Division should be something very much out of the ordinary. In his remarks, the respondent denies any
scientific fraud by referring to excerpts of testimony and a report from the
It therefore appears that, after
listing and considering as established various elements unfavourable to the
respondent, the Criminal Division ruled that “an unprecedented scientific
fraud” had not been proven, putting forward an incomprehensible reasoning. One may think that the Criminal Division
reached its decision without defensible grounds, in which case it lapsed into
arbitrariness. It is also conceivable that the cantonal judges did have tenable
arguments in mind, but these were not expressed and cannot be inferred by
interpretation. In either case the
contested decision must be annulled for breach of art. 9 Cst. [Constitution
fédérale de la Confédération suisse = Swiss Federal Constitution] since any decision that is not
comprehensible should be considered arbitrary.
In view of the elements presented, there is nothing to rule out the
arbitrary nature of the adopted solution with regard to its outcome. The annulment of the contested decision obviates
the need to examine the other grievances invoked by the appellants.
3.
There are no procedural costs. The Canton of Geneva shall pay to the
appellants an indemnity towards their legal fees in respect of proceedings
before the Federal Supreme Court (art. 159 OJ). No award of indemnity to the
respondent is called for.
The case having been decided, the
application for suspensory effect is irrelevant.
For the above reasons, the Federal Supreme Court declares as follows:
1.
The complaint is upheld and the
decision handed down on
2.
There are no procedural costs. The
Canton of Geneva shall pay an indemnity of CHF 3,000 to the appellants
towards their legal fees.
3.
Copy of the present decision is
notified to the parties’ counsel, to the Public Prosecutor and to the Appeal
Court of the Canton of Geneva, Criminal Division.
For the Criminal Court of Cassation
of the Swiss Federal Supreme Court
President: Clerk of the
Court:
(signed) (signed)