Swiss Federal Supreme Court

 

6P.17/2003/dxc

 

                                                           Decision of 17 April 2003

                                               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 Geneva,

                                                           Jean-Charles Rielle, 1211 Geneva 4,

appellants,

represented by Christian Pirker, attorney-at-law,

place du Molard 7, case postale 3534,

1211 Geneva 3,

 

v.

 

Ragnar Rylander, 41530 Göteborg (Sweden),

respondent,

represented by Michel A. Halpérin, attorney-at-law,

avenue Léon-Gaud 5, 1206 Geneva,

Public Prosecutor of the Canton of Geneva,

place du Bourg-de-Four 1, case postale 3565,

1211 Geneva 3,

Court of Appeal of the Canton of Geneva,

Criminal Division, case postale 3108,

1211 Geneva 3.

 

Issues                                                  Criminal proceedings, arbitrariness,

 

constitutional complaint against the decision of the Court of Appeal of the Canton of Geneva, Criminal Division, of 13 January 2003

 

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 29 March 2001 a press release impugning the honour of Ragnar Rylander.  Ragnar Rylander was awarded an indemnity towards the payment of his legal fees, but his submissions pertaining to damages and publication of the judgement were dismissed.

 

B.

By decision of 13 January 2003, the Criminal Division of Geneva’s Court of Appeal sustained in part the appeals filed by Jean-Charles Rielle and Pascal Diethelm, reducing the amount of the fine to CHF 1,000 each.

 

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 University of Geneva and professor at the University of Göteborg (Sweden), was secretly employed by Philip Morris USA and paid by Fabriques de Tabac Réunies (Neuchâtel).  They also explained that, being attached to the Institut de médicine sociale et preventive [Institute for Social and Preventive Medicine], Ragnar Rylander was in charge of several of its research projects on dietary habits and lifestyle, one of which dealt with passive smoking.  According to them, the conclusion reached by one of his projects on respiratory infections in young children and environmental factors, namely that tobacco smoke did not modify risks of illness in young children, was mind-boggling and, when one knew that he was one of Philip Morris’s most highly paid consultants, tended to call into question the objectivity of his work.  In the last part of their press release Jean-Charles Rielle and Pascal Diethelm requested in particular that an inquiry be launched within the University of Geneva regarding Ragnar Rylander’s activities, that all ongoing studies based on or making direct or indirect references to his studies be immediately suspended, that the Rectorate of the University of Geneva publicly denounce his studies in scientific journals, and that university titles conferred on him in Geneva be revoked.

 

On 18 April 2001 Ragnar Rylander filed a criminal complaint for defamation, or even calumny, against Jean-Charles Rielle and Pascal Diethelm, indicating in particular that his work on smoking represented 10% of his overall research and publications.

 

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 13 January 2003, moving for said decision to be annulled and applying moreover for suspensory effect.

 

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 University of Geneva dated 6 November 2001.  The decision of the Criminal Division does not discuss what importance should be attached to them, and it is not for the Federal Supreme Court, seised of a constitutional complaint, to conduct an unrestricted evaluation of the evidence produced.

 

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 13 January 2003 by the Appeal Court of the Canton of Geneva, Criminal Division, is annulled.

 

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.

 

 

Lausanne, 17 April 2003

 

 

For the Criminal Court of Cassation

of the Swiss Federal Supreme Court

 

 

President:                                                        Clerk of the Court:

(signed)                                                           (signed)