Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 15890/89

Jens Olaf Jersild

against

Denmark

REPORT OF THE COMMISSION

(adopted on 8 July 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-26). . . . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-24). . . . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 25-26). . . . . . . . . . . . . . . . . . . . 15

III. OPINION OF THE COMMISSION

(paras. 27-46) . . . . . . . . . . . . . . . . . . . . . . 17

A. Complaint declared admissible

(para. 27). . . . . . . . . . . . . . . . . . . . . . 17

B. Point at issue

(para. 28). . . . . . . . . . . . . . . . . . . . . . 17

C. Article 10 of the Convention

(paras. 29-46). . . . . . . . . . . . . . . . . . . . 17

CONCLUSION

(para. 46). . . . . . . . . . . . . . . . . . . . . . . . . 21

DISSENTING OPINION OF MR. G. JÖRUNDSSON, JOINED BY

SIR BASIL HALL AND MR. JEAN-CLAUDE GEUS . . . . . . . . . . . . . . . . 22

DISSENTING OPINION OF MRS. JANE LIDDY . . . . . . . . . . . . . . . . . 25

APPENDIX I : TEXT OF THE BROADCAST OF 21 JULY 1985 . . . . . . . . 27

APPENDIX II : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . . . 33

APPENDIX III : DECISION ON THE ADMISSIBILITY . . . . . . . . . . . . 34

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 Danish citizen, born in 1959. He is a

journalist and resides in Copenhagen. In the proceedings before the

Commission the applicant is represented by Mr. Kevin Boyle, professor

at the University of Essex, United Kingdom, and Mr. Tyge Trier, a

lawyer practising in Copenhagen.

3. The application is directed against Denmark. The respondent

Government are represented by their Agent, Mr. Tyge Lehmann of the

Ministry of Foreign Affairs.

4. The case concerns the applicant's conviction of having aided and

abetted the dissemination of racist remarks. The applicant considers

that this conviction violates his right to freedom of expression and

he invokes Article 10 of the Convention.

B. The proceedings

5. The application was introduced on 25 July 1989 and registered

on 11 December 1989. On 7 October 1991 the Commission decided in

accordance with Rule 48 para. 2 (b) of its Rules of Procedure to give

notice of the application to the respondent Government and to invite

them to present their observations in writing on the admissibility

and merits of the application.

6. The Government submitted their observations on 20 December 1991.

The applicant's written observations in reply were submitted on

17 February 1992.

7. On 8 September 1992 the Commission attended a showing of the

filmed feature as broadcast on 21 July 1985. It decided to declare

the application admissible. The parties were then invited to submit

any additional observations on the merits which they wished to make.

8. On 5 December 1992 the Commission decided in accordance with

Rule 53 para. 3 of its Rules of Procedure to obtain the parties' oral

submissions on the merits of the case.

9. The hearing took place on 6 April 1993. The applicant was

present and was represented by Mr. Kevin Boyle and Mr. Tyge Trier,

both as counsel. The Government were represented by their Agent,

Mr. Tyge Lehmann, by Mr. Michael Elmer as counsel and by

Mr. Laurids Mikaelsen, Ms. Julie Rechnagel, Mr. Johan Reimann and

Mr. John Lundum as advisers.

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

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

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

friendly settlement of the case. Consultations with the parties took

place between 11 September 1992 and 6 April 1993. In the light of the

parties' reaction, the Commission now finds that there is no basis

upon which such a settlement can be effected.

C. The present Report

11. 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. S. TRECHSEL, Acting President

C. A. NØRGAARD

F. ERMACORA

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C. L. ROZAKIS

Mrs. J. LIDDY

MM. J.-C. GEUS

M. P. PELLONPÄÄ

B. MARXER

12. The text of this Report was adopted on 8 July 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.

13. 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.

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

Commission is attached hereto as Appendix II and the Commission's

decision on the admissibility of the application as Appendix III.

15. 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

16. Inspired by an article which appeared in the newspaper

Information on 31 May 1985 the applicant decided to make a television

programme which would describe the attitudes of a group of young

people, who called themselves "the greenjackets" (grønjakkerne), in

respect of racism at Østerbro in Copenhagen, and give a general

description of the social standing of these young people. The

applicant contacted representatives of the greenjackets, three of

whom he invited to participate, in addition to a social worker

responsible for the area, in a tape-recording of their viewpoints.

The interview and its recording lasted between 5 and 6 hours

resulting in 2-2 1/2 hours of tape and in the course of the

interview, which was conducted by the applicant, the greenjackets

spoke in abusive and derogatory terms about immigrants and ethnic

groups in Denmark.

17. The applicant subsequently edited and cut the interview to a

filmed feature of a few minutes which was broadcast in Danmarks

Radio's news magazine "Søndagsavisen" on 21 July 1985. The text of

the broadcast (as to the original version see Appendix I) reads as

follows:

(translation)

*

"In recent years, we have talked a great deal about racism

in Denmark. The papers are currently bringing stories about

distrust and resentment aimed at minorities. Who are they,

those who hate the minorities? Where do they come from? What is

their mentality like? Mr. Jens Olaf Jersild has visited a group

of extremist youths at Østerbro in Copenhagen.

The flag on the wall is the flag of the Southern States

from the American Civil War, but today it is also the symbol of

racism, the symbol of the American movement, the Ku Klux Klan, and it

shows what Lille Steen, Henrik and Nisse are.

Are you a racist?

- Yes, that's what I regard myself as.

- It's good being a racist.

- We feel Denmark is for the Danes.

(A) Henrik, Lille Steen and all the others are members of a group

of young people who live in Studsgårdsgade, called STUDSEN, at

Østerbro in Copenhagen. It is public housing, a lot of the

inhabitants are unemployed people on social security, the crime

rate is high. Some of the young people in this neighbourhood

have already been involved in criminal activities and have

received their first convictions.

(G) - It was an ordinary armed robbery at a petrol station.

(A) What did you do?

(G) - Nothing. I just ran into a petrol station with a ... gun

and made them give me some money. Then I ran out again. That's

all.

(A) What about you, what happened?

(G) - I don't wish to discuss that further.

(A) But, was it violence?

(G) - Yes.

(A) You have just come out of ... you have been arrested, what

were you arrested for?

(G) - Street violence.

(A) What happened?

(G) - I had a little fight with the police together with some

friends.

(A) Does that happen often?

(G) - Yes, out here it does.

(A) All in all, there are 20-25 young people from STUDSEN in the

same group.

They meet not far away from the public housing area near some

old houses which are to be torn down. Here, they meet to

confirm among other things their racism, hating the immigrants

and supporting the Ku Klux Klan.

(G) - The Ku Klux Klan, that's something that comes from the States

in the old days during - as you know - the civil war and things

like that, because the Northern States wanted that the niggers

should be free human beings, man, they are not human beings,

they are animals, right, it's completely wrong, man, the things

that's happened. People should be allowed to keep slaves, I

think so anyway.

(A) Because blacks are not human beings?

(G) - No, you can also see it on their body structure, man, big flat

noses, with cauliflower ears etc., man. Broad heads and very

broad bodies, man, hairy, you are looking at a gorilla and

compare with an ape, man, then it is the same procedure, man,

it's the same movements, long arms, man, long fingers etc.,

long feet.

(A) A lot of people are saying something different. There are a lot

of people who say, but ...

(G) - Just take a picture of a gorilla, man, and then look at a

nigger, it's the same body structure and everything, man, flat

forehead and all kinds of things.

(A) There are many blacks, for example, in the USA, who are holding

important jobs.

(G) - Of course, there is always someone who wants to show off,

as if they are better than the white man, but in the long run,

it is the white man who is better.

(A) What does Ku Klux Klan mean to you?

(G) - It means a great deal, because I think it is right what

they do. A nigger, that is not a human being, it is an animal,

that goes for all the other alien workers as well, Turks,

Yugoslavs and whatever they are called.

(A) Henrik is 19 years old and on welfare. He lives in a rented

room in Studsgårdsgade. Henrik is one of the strongest

supporters of the Klan, and he hates the foreign workers,

'Perkerne'.

(G) - They come up here, man, and sponge on our society. But we,

we have enough problems in getting our social benefits, man,

they just get it. Fuck, we can argue with those idiots up there

at the social benefit office to get our money, man, they just

get it, man, they are the first on the housing list, they get

better flats than us, man, and some of our friends who have

children, man, they are living in the worst slum, man, they

can't even get a shower in their flat, man, then those

'Perkere'-families, man, go up there with seven kids, man, and

they just get an expensive flat, right there and then. They get

everything paid, and things like that, that can't be right,

man, Denmark is for the Danes, right?

It is the fact that they are 'Perkere', that is what we don't

like, right, and we don't like their mentality - I mean they

can damn well, I mean ... what's it called ... I mean if they

feel like speaking Russian in their homes, right, then it's

okay, but what we don't like, that is when they walk around in

those Zimbabwe-clothes and then speak this hula-hula language

in the street, and if you ask them something or if you get into

one of their taxis, in which you drive, then they say: I don't

know where it is, you give directions right.

(A) Is it not so that perhaps you are a bit envious that some

of the 'Perkere' as you call them have their own shops, and

cars, they can make ends ...

(G) - It's drugs they are selling, man, half of the population

who are in prison in 'Vestre' are in there because of drugs,

man, half of those in Vestre prison anyway, they are the people

who are serving time for dealing with drugs or something

similar.

They are in there, all the 'Perkere', because of drugs, right.

It must be sufficient, what's it called, there should not be

drugs here in this country, but if it really has to be smuggled

in, I think we should do it ourselves, I mean, I think it's

unfair that those foreigners come up here to ... what's it

called ... make Denmark more drug dependent and things like

that.

We have painted their doors and hoped that they would get fed

up with it, so that they would soon leave, and jumped on their

cars and thrown paint in their faces, when they were lying in

bed sleeping.

(A) What was it you did with that paint - why paint?

(G) - Because it was white paint, I think that suited them well,

that was the intended effect.

(A) You threw paint through the windows of an immigrant family?

(G) - Yes.

(A) What happened?

(G) - He just got it in his face, that's all. Well, I think he woke

up, and then he came out and shouted something in his hula-hula

language.

(A) Did he report it to the police?

(G) - I don't know if he has, I mean, he won't get anything out

of that.

(A) Why not?

(G) - I don't know, it's just kid's stuff, like other people

throwing water in people's faces, he got paint in his. They

can't make anything out of that.

---

(A) Per Axholt, known as 'Pax', is employed in the youth centre

in Studsgårdsgade. He has been employed there for several

years, but many give up a lot sooner because of the tough

environment. Per Axholt feels that the reasons why the young

people are persecuting the immigrants are because they are

themselves powerless and disappointed.

What do you think it is that they want, if you asked them?

* - The same as you and I want. Some control over their

lives, some work which may be considered to be decent and which

they like, a reasonable economic result, a reasonably

functioning family, a wife or a husband and some children,

a reasonable middle class life such as you and I know it.

(A) They do many things which certainly prevent them from getting

it.

(P) - That is correct.

(A) Why do you think they do this?

(P) - Because they have nothing better to do. They have been told

over a long period that the means by which they achieve success

is through money. They won't be able to get money legitimately,

so often they try to obtain it through criminal activity.

Sometimes they succeed, sometimes not, and that's why we see a

lot of young people in that situation go to prison, because it

doesn't work.

---

(A) How old were you when you started your criminal activities?

(G) - I don't know, about 14 I guess.

(A) What did you do?

(G) - The first time, I can't remember, I don't know, burglary.

(A) Do you have what one might call a criminal career?

(G) - I don't know if you can call it that.

(A) You committed your first crime when you were 14.

(G) - Well, you can put it that way, I mean, if that is a

criminal career. If you have been involved in crime since the

age of 15 onwards, then I guess you can say I've had a criminal

career.

(A) Will you tell me about some of the things you have been doing?

(G) - No, not really. It's been the same and the same. For example

video-pinching where the 'Perkere' were our customers, they

have money. If people want to be out here and have a nice time

and be racists and drink beer, and have fun, then it's quite

obvious you don't want to sit in the slammer.

(A) But is the threat of imprisonment something that really deters

people from doing something illegal?

(G) - No, it's not the prison, that doesn't frighten people.

(A) Is that why you hear stories about people from out here fighting

with knives etc., night after night. Is the reason for this the

fact that they are not afraid of the police getting hold of

them?

(G) - Yes, nothing really comes out of it, I mean, there is no

bad side-effects, so probably that's why. For instance fights

and stabbings and smashing up things ... If you really get into

the joint it would be such a ridiculously small sentence, so it

would be, I mean ... usually we are released the next day. Last

time we made some trouble over at the pub, they let us out the

next morning. Nothing really comes out of it. It doesn't

discourage us, but we were five, who just came out and then we

celebrated the last guy, who came out yesterday, they probably

don't want to go in again for some time, so big crimes, they

probably won't commit again.

(A) You would like to move back to Studsgårdsgade where you grew

up, but we know for sure that it's an environment with a high

crime rate. Would you like your child to grow up like you?

(G) - No, and I don't think she will. Firstly, because she is a

girl, statistics show that the risk is not that high, I mean

they probably don't do it, but you don't have to be a criminal

because you live in an environment with a high crime rate. I

just wouldn't accept it, if she was mugging old women and

stealing their handbags.

(A) What if she was among those beating up the immigrants etc.

what then?

(G) - That would be okay. I wouldn't have anything against that.

---

(I) We will have to see if the mentality of this family changes

during the next generation. Finally, we would like to say that

groups of young people have been created elsewhere in

Copenhagen like this one in STUDSEN at Østerbro."

18. The broadcast and its contents led to an investigation being

carried out by the police following a complaint submitted by the

bishop of Ã…lborg to the Minister of Justice. On 19 February 1986 the

Public Prosecutor instituted criminal proceedings against the three

youths interviewed charging them with a violation of section 266 (b)

of the Danish Penal Code by expressing in the filmed feature the

following statements:

(translation)

"... the niggers should be free human beings, man, they are not

human beings, they are animals."

"Just take a picture of a gorilla, man, and then look at a

nigger, it's the same body structure and everything, man, flat

forehead and all kinds of things."

"A nigger, that is not a human being, it is an animal, that

goes for all the other alien workers as well, Turks, Yugoslavs

and whatever they are called."

"It is the fact that they are 'Perkere', that is what we don't

like, right, and we don't like their mentality ... what we

don't like, that is when they walk around in those Zimbabwe-

clothes and then speak this hula-hula language in the street."

"It's drugs they are selling, man, half of the population who

are in prison in 'Vestre' are in there because of drugs ...

they are the people who are serving time for dealing with

drugs."

"They are in there, all the 'Perkere', because of drugs."

19. The applicant was charged with aiding and abetting the three

youths, as was also the head of the news section of Danmarks Radio,

in violation of section 266 (b) of the Penal Code read in conjunction

with section 23 of the Penal Code.

20. On 24 April 1987 the City Court of Copenhagen (Københavns Byret)

found the three youths guilty of the charge brought against them. In

its judgment in which the youths were referred to as A, B, and C the

City Court stated inter alia:

(translation)

"As far as the defendant Mr. Jens Olaf Jersild is concerned it

is maintained, as stipulated in the indictment, that (he) has

rendered (himself) guilty of aiding and abetting the violation

of section 266 (b) of the Danish Penal Code. In this connection

attention is drawn to the fact that the defendant

Mr. Jens Olaf Jersild, on the basis of an article in

'Information' in which the group of young people in question,

the so-called greenjackets, inter alia stated their opinion on

'alien workers', took the initiative himself to invite these

young people to elaborate on their views in this respect in a

television programme. It is thus maintained that the defendant

Mr. Jens Olaf Jersild was fully aware of the racist viewpoints

of the young people in question and thus knowingly caused these

viewpoints to be broadcast indiscriminately in the television

programme. No balancing whatsoever of the viewpoints was made

in the programme e.g. by allowing other persons of a different

opinion to be heard. It should be noted that the interview with

Mr. Per Axholt, who worked as a club assistant in the youth

club 'Studsen', is of no relevance in this connection. During

the recording, during which Danmarks Radio served beer and

later paid so-called 'interviewee fees', the defendant Mr. Jens

Olaf Jersild did not, as a matter of fact, just play the role

of a 'passive microphone holder' as on one occasion when A

'lost the thread' he managed to bring the defendant back to the

basic point of view by stating in a inquisitorial manner:

'Negroes aren't people'.

...

Counsel for the defendant Mr. Jens Olaf Jersild ... has claimed

acquittal even if a judgment should be delivered against the

defendants A, B, and C as the conduct of the defendant

Mr. Jens Olaf Jersild ... in no way can be compared with the

conduct of the three other defendants with whose points of view

Mr. Jens Olaf Jersild ... does not sympathise. The defendant

Mr. Jens Olaf Jersild ... just wanted to describe a fact in

society in a realistic way and, as a matter of fact, the

programme only caused disgust and aroused pity in respect of

the defendants A, B, and C, who were 'exposed to ridicule' on

their own conditions. Thus, it has in no way been Danmarks

Radio's intention to disseminate the points of view of the

greenjackets with a view to making others 'convert' to the same

viewpoints -on the contrary. For details concerning this

matter, it appears from the preparatory works of the (Penal

Code) inter alia that the section in question shall be subject

to a narrow interpretation in respect of the freedom of

expression just as reference is made to the original wording of

the Convention of 21 December 1965 of the United Nations

compared with a decision of the Norwegian Supreme Court of

25 September 1978. Furthermore, as held in the decision

reported in the Danish weekly law journal, UfR 1980/1065 V, it

is maintained that a distinction has to be made between the

persons making the statements and the editors and, as regards

the latter, a special freedom of expression applies.

Furthermore, according to the legislation it is in fact the

duty of Danmarks Radio - as a monopoly - to communicate all

views that might be of social interest and which are put

forward soberly in the speakers' own ways. Furthermore, it is

maintained that the purpose of introducing section 266 (b) of

the Penal Code was not to render the conduct of the defendant

Mr. Jens Olaf Jersild ... punishable; if so, this would be

atypical in substantive terms. Reference can e.g. be made to

the fact that the programme was part of a debate already in

progress in society which e.g. had resulted in articles in

'Information' and 'Ekstra Bladet'. The programme only covered

the actual conditions in a loyal way, and reality for the young

people in question was furthermore relevantly illustrated

through the interview with Mr. Per Axholt, the club assistant.

Finally, it is maintained that in cases of this nature the

prosecution does not follow a consistent practice in respect of

pressing charges; see e.g. the above-mentioned articles in

'Information' and 'Ekstra Bladet'. Furthermore, reference is

made to the general social interest in being informed of

attitudes notorious in society even where these cannot be

considered to be sympathetic.

The Court holds:

By way of introduction the Court finds that, on the basis of

the preparatory work of the Penal Code, section 266 (b) should

be subject to a narrow interpretation in such a way that the

provision does not apply to e.g. minor offences. Just as the

provision does not apply to scientific theories advanced on

racial, national or ethnic differences it must probably also be

assumed that it neither applies to statements which are not of

a scientific nature in the proper sense of the word but where

these statements are made in the course of an objective debate.

The statement made by the defendant A in the television

programme that 'niggers', 'alien workers' are animals, and the

statements made by the defendants B and C on drugs in relation

to 'Perkere' are found to insult and degrade a class of persons

on account of their race, colour, national or ethnic origins.

Consequently, they are found to have violated section 266 (b)

of the Penal Code. However, the other statements made by the

defendant B under the indictment are not found to be of such a

serious nature that they are punishable in pursuance of

section 266 (b).

When considering the conduct of the defendant

Mr. Jens Olaf Jersild ... the Court finds, on the basis of the

evidence given during the trial, that the defendant

Mr. Jens Olaf Jersild, following an article in 'Information' of

31 May 1985 in which inter alia the racist viewpoints of the

greenjackets were described, visited the greenjackets in

Studsgårdsgade and then, after a discussion with

Mr. Per Axholt, the club assistant, among others, agreed that

the defendants A, B, and C should participate in a television

programme. Furthermore, the Court finds that the object of the

television programme was to describe the attitude of the

greenjackets to racism at Østerbro - as stated in the article

in 'Information' - as well as to give a general description of

the social standing of these young people. The Court thus finds

that the defendant Mr. Jens Olaf Jersild took the initiative to

the television programme himself and it furthermore finds that

Mr. Jens Olaf Jersild beforehand knew that discriminatory

statements of a racist nature could be expected to be made

during the interview. In connection with the interview, which

took several hours during which beer was consumed and partly

paid for by Danmarks Radio, the defendant Mr. Jens Olaf

Jersild, is found to have encouraged the greenjackets to

express their racist viewpoints which, by being broadcast on

television, in itself implies a violation of section 266 (b) of

the Penal Code. Thus, by having aided and abetted the

dissemination of the above-mentioned statements in the

circumstances stated above - which were furthermore, without

any 'balancing' whatsoever, transmitted indiscriminately in the

television programme on the basis of the cutting of the

recordings made by the defendant Mr. Jens Olaf Jersild - the

defendant Mr. Jens Olaf Jersild is thereby found guilty of

having aided and abetted the violation of section 266 (b) of

the Penal Code."

21. The three greenjackets did not appeal against the Court's

judgment. The applicant, who was sentenced to a fine totalling

1,000 Danish crowns, appealed against it to the High Court of Eastern

Denmark (Østre Landsret), before which he basically made the same

submissions as in the City Court. He further explained that he

beforehand suspected that the racist statements made in the programme

were punishable. When he decided not to cut out these statements it

was because he found it of the utmost importance to illustrate the

actual attitudes of the so-called greenjackets. He did not warn the

parties concerned against making the statements as he expected that

they knew that they could be punished.

22. On 16 June 1988 the High Court delivered its judgment. The

majority, five judges, upheld the conviction, whereas one judge held

that the applicant should be acquitted. The judgment reads as

follows:

(translation)

"Also on the basis of the evidence produced in the High Court,

the Court finds it established that the defendant

Mr. Jens Olaf Jersild is guilty for the reasons stated in the

judgment of the City Court. These judges therefore find, as the

penalty in pursuance of section 266 (b), cf. section 23 of the

Penal Code is found to be appropriate, that the judgment should

be upheld ...

One judge, who agrees that the statements made must be deemed

to be punishable does not find that the defendant by

broadcasting the statements on television has transgressed the

bounds of the freedom of expression to which television and

other media must be entitled, considering the fact that the

object of the programme was to create a social debate and to

inform the public of the youth group's particular attitudes to

racism and the group's social standing."

23. With leave to appeal the applicant appealed against this

judgment to the Supreme Court (Højesteret). On 13 February 1989 the

Supreme Court delivered its judgment. The majority, four judges,

confirmed the applicant's conviction whereas one judge voted in

favour of the applicant's acquittal. The judgment reads as follows:

(translation)

"Four judges hold:

The defendant has caused the publication of the racist

statements made by a narrow circle of persons which thereby

rendered them punishable and [he] has thus, as held by the City

Court and the High Court, violated section 266 (b) in

conjunction with section 23 of the Penal Code. These judges do

not find that the protection of freedom of expression in

respect of issues and events of general public interest as

opposed to the protection against racial discrimination in this

case could nevertheless justify an acquittal of the defendant.

These judges therefore vote in favour of upholding the

judgment.

(One judge) holds:

The object of the programme was to contribute to the

information on an issue - the attitude towards strangers -

which was the subject of an extensive and at times very

emotional debate. The programme must be presumed to have given

a clear picture of the viewpoints of the greenjackets which the

public thus had an opportunity to be acquainted with and make

up its mind about. Considering the nature of the viewpoints,

any countering during or immediately before or after the

interview would not have served a reasonable purpose. Even

though it concerned a relatively small group of people with

extreme viewpoints, the programme had a fair news and

information value. When assessing the conduct of the defendant

it is found that the fact that these viewpoints were

disseminated at [his] own initiative is not of the utmost

importance. In these circumstances and irrespective of the fact

that the statements are rightly considered to fall under

section 266 (b) of the Penal Code, I doubt the advisability of

finding the defendant guilty of aiding and abetting the

violation of the provision in question. I therefore vote in

favour of acquittal."

24. Subsequently a commentary to the judgment, by one of the Supreme

Court's judges who had participated in the case, was published in the

official law journal on 20 January 1990. In this commentary the judge

explained inter alia:

(translation)

"For the majority there was no doubt, which in fact also

applied to the minority, that the statements for which the

defendant had been convicted by the City Court of Copenhagen

and by the High Court had rightly been considered to fall under

section 266 (b) of the Penal Code.

As will be seen from the grounds given by the majority, it

attached importance to the fact that it was the defendant who

caused the racist statements to be made in public and thereby

in a punishable manner. It was not a direct reporting of a

meeting. The journalist had contacted the three youths himself

and caused them to make statements like those they had

previously made to 'Information' and which the journalist knew

of and probably also expected them to repeat. He had then

himself cut the many hours of recording down to a few minutes,

keeping the 'crude' comments as one of the interviewed persons

put it. Without the initiative taken by the journalist these

statements would not have been repeated in a wider circle. If

the same statements had been made only in a narrow circle, they

would hardly have been punishable as section 266 (b) in fact

requires the statements to have been made in public or with a

view to dissemination to a wider circle. However, the

statements became clearly punishable when they were broadcast

on television as a result of the journalist's initiative and

the approval of the head of the news section. The fact that the

accused radio employees had, in an objective manner, aided and

abetted the dissemination of statements which were insulting

and degrading to a group of persons on account of their race,

colour, national or ethnic origins and that they had the

intention which was required to make it punishable was in the

opinion of the majority beyond doubt.

If, nevertheless, the defendant were to be acquitted, this

would require, in the opinion of the majority, that there were

opposing considerations that outweighed decisively the

wrongfulness of the defendant's actions. The defendant's

reference to the freedom of expression and the resulting right

to express all kinds of opinions which might be of social

interest and which are made objectively, necessitated in that

connection a specific weighing as to whether consideration for

those who were grossly insulted by the statement outweighed the

need to inform the public of the statements. It is beyond

dispute that it is desirable to give the press as good

conditions as possible in order to enable it to 'cover' what is

going on in society. It is not, however, tantamount to giving

it a free rein. The freedom of expression is a freedom with

responsibility.

The balancing of the opposing considerations and the assessment

made by the majority necessarily had to include the fact that

the statements which were intended to be made to a wider circle

were nothing but a number of inarticulate defamatory remarks

and insults and that they had been made by representatives of

a quite insignificant group of young persons whose opinion can

hardly be of any interest to many people.

The result of the balancing of the opposing considerations was

that the programme did not have such a news or information

value that in relation to the protection against racial

discrimination it would justify the dissemination of racist

statements, and thereby lead to the acquittal of the defendant.

The finding of the majority, which is thus based on a specific

assessment, does not mean that extremist viewpoints cannot be

reported by the press, no matter how unpleasant they might be,

but it must be done in a more balanced and all-round form than

was the case in the television programme of 21 July 1985. It

must also be possible to do it by direct reporting of meetings

of some public interest.

As will be seen from the above, one of the participating five

judges voted in favour of acquitting the defendant.

As will be seen, the minority also made an overall assessment

of the case, including a balancing of the opposing

considerations but found - unlike the majority - on the basis

of this balancing that the protection of the right to

information in the specific case should carry more weight than

the protection set out in section 266 (b) of the Penal Code.

The question of the relationship with the European Convention

on Human Rights, including its Article 10 concerning freedom of

expression, was not introduced during the trial."

B. Relevant domestic law

25. Section 266 (b) of the Penal Code provides:

"Den, der offentligt eller med forsæt til udbredelse i en

videre kreds fremsætter udtalelse eller anden meddelelse, ved

hvilken en gruppe af personer trues, forhånes eller nedværdiges

på grund af sin race, hudfarve, nationale eller etniske

oprindelse eller tro, straffes med bøde, hæfte eller fængsel

indtil 2 år."

(translation)

"Any person who, publicly or with the intention of wider

dissemination, makes a statement or other communication by

which a group of persons are threatened, insulted or degraded

on account of their race, colour, national or ethnic origin or

belief shall be liable to a fine or to simple detention or to

imprisonment for any term not exceeding two years."

26. Section 23, subsection 1, of the Penal Code provides:

"Den for en lovovertrædelse givne straffebestemmelse omfatter

alle, der ved tilskyndelse, råd eller dåd har medvirket til

gerningen. Straffen kan nedsættes for den, der kun har villet

yde en mindre væsentlig bistand eller styrke et allerede fattet

forsæt, samt når forbrydelsen ikke er fuldbyrdet eller en

tilsigtet medvirken er mislykkedes."

(translation)

"The penalty in respect of an offence shall apply to any person

who has contributed to the execution of the wrongful act by

instigation, advice or action. The punishment may be reduced

for any person who only intended to give assistance of minor

importance, or strengthen an intent already resolved, if the

offence has not been completed or an intended assistance

failed."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

27. The Commission declared admissible the applicant's complaint

concerning the interference with his freedom of expression.

B. Point at issue

28. In the present case the Commission is called upon to consider

whether or not the applicant's conviction and sentence for having

aided and abetted the dissemination of racist remarks violated his

right to freedom of expression within the meaning of Article 10

(Art. 10) of the Convention.

C. Article 10 (Art. 10) of the Convention

29. Article 10 (Art. 10) of the Convention reads as follows:

"1. Everyone has the right to freedom of expression.

This right shall include freedom to hold opinions and to

receive and impart information and ideas without

interference by public authority and regardless of

frontiers. This Article shall not prevent States from

requiring the licensing of broadcasting, television or

cinema enterprises.

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, in the interests of national security,

territorial integrity or public safety, for the prevention

of disorder or crime, for the protection of health or

morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information

received in confidence, or for maintaining the authority

and impartiality of the judiciary."

30. Before considering the specific circumstances of the present

case the Commission recalls the general principles relating to

Article 10 (Art. 10) of the Convention which appear from the

Commission's own case-law and that of the European Court of Human

Rights (see e.g. Eur. Court H.R., Observer and Guardian judgment of

26 November 1991, Series A no. 216, with further references).

(a) Freedom of expression constitutes one of the essential

foundations of a democratic society; subject to paragraph 2 of

Article 10 (Art. 10-2), it is applicable not only to "information" or

"ideas" that are favourably received or regarded as inoffensive or as

a matter of indifference, but also to those that offend, shock or

disturb. Freedom of expression, as enshrined in Article 10 (Art. 10),

is subject to a number of exceptions which, however, must be narrowly

interpreted and the necessity for any restriction must be

convincingly established.

(b) These principles are of particular importance as far as the

media are concerned. Whilst they must not overstep the bounds set,

inter alia, for the protection of the reputation or rights of others,

it is nevertheless incumbent on them to impart information and ideas

on matters of public interest. Not only do they have the task of

imparting such information and ideas, the public also has a right to

receive them. Were it otherwise, the media would be unable to play

their vital role of "public watchdog".

(c) The adjective "necessary", within the meaning of Article 10

para. 2 (Art. 10-2) implies the existence of a "pressing social

need". The Contracting States have a certain margin of appreciation

in assessing whether such a need exists, but it goes hand in hand

with a European supervision, embracing both the law and the decisions

applying it, even those given by independent courts. The Convention

organs are therefore empowered to give the final ruling on whether a

"restriction" is reconcilable with freedom of expression as protected

by Article 10 (Art. 10).

(d) The Convention organs' task, in exercising their supervisory

function, is not to take the place of the competent national

authorities but rather to review under Article 10 (Art. 10) the

decisions they delivered pursuant to their power of appreciation.

This does not mean that the supervision is limited to ascertaining

whether the respondent State exercised its discretion reasonably,

carefully and in good faith; what the Convention organs have to do is

to look at the interference complained of in the light of the case as

a whole and determine whether it was proportionate to the legitimate

aim pursued and whether the reasons adduced by the national

authorities to justify it were relevant and sufficient.

31. Turning to the facts of the present case the Commission finds

that there has been an interference by a public authority with the

exercise of the applicant's freedom of expression within the meaning

of Article 10 (Art. 10). This interference resulted from his

conviction and the sentence to pay a fine imposed on the applicant by

the City Court of Copenhagen on 24 April 1987, upheld by the High

Court of Eastern Denmark on 16 June 1988 and by the Supreme Court on

13 February 1989, for aiding and abetting the three youths in

exposing defamatory remarks about immigrants in Denmark.

32. The Commission also finds that the interference was in

accordance with law as it was based on section 266 (b) in conjunction

with section 23, subsection 1, of the Danish Penal Code. The

restriction furthermore pursued a legitimate aim covered by

Article 10 para. 2 (Art. 10-2) of the Convention, namely the

protection of the reputation and rights of others.

33. Accordingly, what remains to be examined is whether the

restriction complained of could be considered to be "necessary in a

democratic society" as required by Article 10 para. 2 (Art. 10-2) of

the Convention.

34. The applicant submits in this respect in particular that in

pursuit of the legitimate aim of protecting the reputation and rights

of others it is not necessary in a democratic society to penalise a

journalist where he seeks in good faith to investigate an issue of

major public concern and to ensure public and governmental response.

The applicant contends that the programme item condemned in court was

in fact directed at protecting the rights of the immigrant community,

through exposure of the attitudes of the greenjackets which in turn

explained their violent behaviour towards immigrants. At the same

time the feature sought to give information to the public about the

social deprivation of the youths and to raise questions about the

effectiveness of the policies of the authorities, particularly the

police.

35. The applicant also submits that the interpretation of section

266 (b) in conjunction with section 23 of the Penal Code by the

Danish courts did not give proper weight to the purpose of the

broadcast, which was not aiming at insulting or degrading persons,

but was designed to make a portrait of the greenjackets and to convey

to the public an appreciation through images and words of this new

phenomenon in Denmark, the espousal of violent racism. To achieve

such a portrait of the group it was necessary for the medium in

question, television, to broadcast the views of the group even if

these were, outside the context of the broadcast, offensive. To have

excluded such speech in the final editing would have made the

portrait incomplete and ultimately of no value as a means of

communicating to the public the group's attitudes, however

reprehensible they were, particularly as the "Søndagsavisen" feature

in July 1985 was the first investigation by television of the

phenomenon of violence and harassment against immigrants.

36. The applicant thus considers that his conviction was a

disproportionate interference with his freedom of expression.

37. The Government submit in particular that present-day actions

against racist activities are based on the international community's

bitter experience of the dire consequences of such acts which have

led to great suffering. This phenomenon is not only something which

belongs to the past but is a reality of today as recent trends in

various European countries show. This had led to the adoption of

declarations within the United Nations and the European Communities

against racism as well as motions in the Danish Parliament,

condemning all forms of discrimination. The Government agree that it

is desirable to give the media as good conditions as possible in

order to enable them to report on what is happening in society, but

this is not tantamount to giving them a free rein.

38. With reference to the comments on the Supreme Court's judgment

of 13 February 1989, published in the Danish Law Journal on

20 January 1990, the Government furthermore submit that the Danish

Penal Code is not applied automatically in respect of reports and

articles in the media. Consideration for freedom of expression and

freedom of the media makes it natural to weigh the need for

protection of the individual against the public's right to be

informed. The result must depend on which consideration is found to

carry most weight in the specific circumstances.

39. In the present case the Government maintain that the statements,

which were intended to be made to a wider circle, were nothing but a

number of inarticulate defamatory remarks and insults made by

representatives of a quite insignificant group of young persons.

Therefore, so the Government contend, the weighing of the opposing

interests lead to the conclusion that the programme did not have such

a news or information value that it could justify, in relation to the

protection against racial discrimination, the dissemination of the

racist statements. The Government thus finds, having regard to the

State's margin of appreciation, that the interference with the

applicant's right to freedom of expression was necessary in a

democratic society within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention.

40inspired by certain newspaper articles, the applicant took the

initiative in producing the television programme, that he contacted

the members of the greenjackets and spent 5-6 hours in making the

interviews which resulted in 2-2 1/2 hours of tape, that he edited

and cut the tapes down to the filmed feature of 5-6 minutes which was

broadcast on 21 July 1985 and that he was subsequently convicted and

sentenced to a fine totalling 1,000 Danish crowns for aiding and

abetting the dissemination of racist remarks contrary to

section 266 (b) in conjunction with section 23 of the Penal Code.

41. When examining the necessity of convicting the applicant for

having aided and abetted the dissemination of racist remarks the

Commission cannot confine itself to considering those remarks alone.

As they were not made by the applicant himself, there is a particular

need to look at these remarks in the light of the context of the

programme and all the circumstances of the case. In this respect the

Commission has taken into consideration that the Government have

ratified the International Convention on the Elimination of All Forms

of Racial Discrimination of 1965 whereby they are obliged to "condemn

racial discrimination and undertake to pursue by all appropriate

means and without delay a policy of eliminating racial discrimination

in all its forms and promoting understanding among all races".

Nevertheless, although the television programme affected the

reputation or rights of others due to its discriminatory contents, a

fair balance between their rights and the applicant's right to impart

information must be struck. The limits of what can be accepted may

vary depending on the circumstances of the case.

42. As regards the reputation or rights of others the Commission

recalls the actual contents of the programme which included

statements about immigrant workers which were highly insulting.

However, when considering these remarks in the context of the whole

programme the reputation or rights of others were not significantly

affected. The remarks were made by members of an insignificant group

of persons with a clear criminal record and, in the Commission's

view, rather had the effect of ridiculing their authors. The picture

which the applicant's programme presented to the public was more that

of drawing attention to racism, intolerance and simplemindedness,

exemplified by the remarks in question, than an attempt to show

disrespect for the reputation or rights of others. In such

circumstances the Commission finds that the reputation or rights of

others, as legitimate aims for restricting the freedom of expression,

carry little weight.

43. As regards the applicant's right to impart information the

Commission finds that the television programme touched upon an issue

of great public concern. Not only due to problems in Denmark but also

in many other places in the world, the rise of racial hatred had

prompted the international community to take action in order to

counter racism and xenophobia. The underlying problems may not have

been new in Denmark when the filmed feature was broadcast but, in the

Commission's view, it nevertheless had an information value and there

was a need to impart information and ideas on such issues to the

public.

44. Furthermore, although the applicant deliberately left the

disputed statements in the programme, the Commission finds it

established that his intentions were not to disseminate racist

ideology but rather to counter it through exposure. This conclusion

is also supported by the fact that the statements in question were

hardly of a kind which would call for views of an opposite nature.

The Commission has no doubt that the final message which was conveyed

was that of anti-racism and contempt for the type of individuals

willing to identify themselves with the remarks made. In such

circumstances it is of great importance that the media are not

discouraged, for fear of criminal or other sanctions, from imparting

opinions on issues of public concern.

45. In the light of the above, the Commission takes the view that

although the specific remarks made by the greenjackets, read out of

context, were highly offensive, the way in which they were presented

and the objective pursued by the applicant were, in the

circumstances, sufficient to outweigh the effect, if any, on the

reputation or rights of others. Accordingly, the Commission concludes

that the reasons advanced by the Government do not suffice to show

that the interference complained of was proportionate to the

legitimate aim pursued. It cannot, therefore, be considered to be

"necessary in a democratic society". Thus Article 10 (Art. 10) of the

Convention has been breached.

CONCLUSION

46. The Commission concludes, by twelve votes to four, that there

has been a violation of Article 10 (Art. 10) of the Convention.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

DISSENTING OPINION OF MR. GAUKUR JÖRUNDSSON,

JOINED BY SIR BASIL HALL AND MR. JEAN-CLAUDE GEUS

This case concerns a television programme which was made by the

applicant and was intended to describe the attitudes and the social

standing of a group of young people, so-called "greenjackets". This

programme was based on an interview, which was conducted by the

applicant and which had lasted between 5 and 6 hours. The applicant

subsequently edited and cut the interview to a filmed feature of

5 minutes which was broadcast in Danmarks Radio's news magazine.

Three of the youths interviewed made statements in the programme

which contained abusive and derogatory terms about immigrants and

certain ethnic groups in Denmark. They were charged and found guilty

of a violation of section 266 (b) of the Danish Penal Code by their

statements that "niggers, alien workers are animals" and statements

on drugs in relation to "perkere". The applicant was held to have

aided and abetted the dissemination of the statements made by the

three youths and was convicted of a violation of section 266 (b) of

the Penal Code read in conjunction with section 23 of the Penal Code.

The applicant took the initiative to produce the programme in

question on the basis of certain newspaper articles. The programme

was not live television but was edited and cut by the applicant from

2-2 1/2 hours of tape to the above-mentioned filmed feature of a few

minutes, in which he deliberately left the disputed remarks. As

appears from the proceedings in the domestic courts the applicant

beforehand suspected that the racist statements were punishable and

he did nothing to warn the parties concerned against making the

statements as he expected that they knew that they could be punished.

However, as appears from the Supreme Court judgment the essential

feature constituting the criminal act was the dissemination of the

statements to a wider circle of the public; a matter which was not in

the hands of the three youths concerned but in the hands of the

applicant to decide upon.

It is clear that section 266 (b) of the Danish Penal Code and

its application in the present case aim at the protection of the

reputation and the rights of others within the meaning of

Article 10 para. 2 of the Convention, i.e. the moral and physical

integrity of certain groups of people. The restriction of the

applicant's rights under Article 10 of the Convention was thus

prescribed by law and had a legitimate aim as required by

Article 10 para. 2. The remaining question is, therefore, whether the

interference can be considered to be necessary in a democratic

society within the meaning of Article 10 para. 2.

There can hardly be much disagreement about the seriousness of

the threat of racial persecution in Europe. Racially motivated

violence poses a constant threat to the lives and security of many

groups of people in the European countries. At an international level

States have found it necessary to act against this threat by inter

alia introducing the United Nations Convention of 21 December 1965 on

the Elimination of All Forms of Racial Discrimination.

In Article 4 (a) of this Convention the States Parties have

undertaken to "declare as an offence punishable by law all

dissemination of ideas based on racial superiority or hatred,

incitement to racial discrimination ... against any race or group of

persons of another colour or ethnic origin ...". The Convention was

ratified by Denmark on 8 September 1971.

The present text of section 266 (b) (apart from the words sexual

orientation which were added in 1987) was entered in the Penal Code

in 1971 when the scope of application of the said provision was

extended substantially in order to enable Denmark to ratify the

United Nations Convention of 21 December 1965 on the Elimination of

All forms of Racial Discrimination.

It is interesting to note, that during the drafting of this

Convention the relationship between Article 4 and the fundamental

right of freedom of speech was discussed at length. The opening

paragraph of Article 4 provides that the measures the State Parties

have to adopt must always have due regard to the principles embodied

in the Universal Declaration of Human Rights.

This so-called "due regard" clause was introduced by the Third

Committee in order to meet objections of those who maintained that

Article 4 would violate the principles of freedom of speech and

freedom of association. It was interpreted as giving State Parties

the right to understand Article 4 as imposing no obligation on any

party to take measures which were not fully consistent with their

constitutional guarantees of freedom, including freedom of speech and

association.

It is also noteworthy that, during the preparation of the Bill,

introducing the amendment of the Danish Penal Code, and during the

deliberations in the Danish Parliament, it was fully realised that a

conflict with the principle of freedom of speech was possible but the

drafting was clearly aimed at avoiding such conflict.

I think that it is important that the provision of the Danish

Penal Code which was applied in the applicant's case thus came about

after careful consideration of conflicting interests, the principle

of freedom of speech on the one hand and the freedom and security of

special groups of people on the other. These conflicting interests

were first considered during the drafting of the Convention on the

Elimination of All Forms of Racial Discrimination and again during

the preparation of the Bill introducing the amendment of the Danish

Penal Code and later when it was dealt with by the Danish Parliament.

It may be true that there is no evidence that the statements in

question provoked any acts of racist persecution in Denmark. That is,

however, not decisive in my opinion. These statements were,

nevertheless, outrageous and likely to insult and hurt the feelings

of people belonging to certain minority groups in Denmark. It was the

view of the Danish courts that such statements could only be

justified if balanced by opposing considerations which could have

outweighed the wrongfulness of the statements. This is very much in

line with the interpretation indicated in the preparatory work of the

Convention on the Elimination of All Forms of Racial Discrimination

and of the following amendment of the Danish Penal Code which clearly

were not intended to restrict scientific or otherwise serious

discussion of problems of public concern.

The European Convention on Human Rights provides inter alia that

the exercise of the freedom of expression carries with it duties and

responsibilities. In that connection it is important to bear in mind

that the applicant in the present case is a professional journalist

and was exercising his functions as an employee of a public

institution, which is devoted to objectivity and pluralism. The

programme was broadcast at peak viewing time and it was accordingly

seen by a wide public, comprising people who may not necessarily have

a critical mind, and whose living conditions may render more

receptive to racist propaganda. The fact that this propaganda stemmed

from a rather insignificant group of persons does not limit its

impact. Rather, this fact would seem to prove that there was no real

and pressing necessity to devote a programme to the matter.

The assumption that the sole effect of the programme was to

ridicule the persons behind the propaganda appears as purely

theoretical. The fact that racism and xenophobia are wide-spread in

important sections of the european population shows on the contrary

that addresses of a clearly primitive character may be experienced as

convincing, despite the lessons of the past.

Finally, when considering the necessity of the interference it

is also of importance to examine the way in which the competent

domestic authorities dealt with the case and I consider that their

position is in good conformity with Article 10 para. 2 of the

Convention. A perusal of the relevant judgments as well as the

commentary to the judgment of the Supreme Court reveals that the

courts fully recognised that the present case involved a conflict

between the right to impart information and the reputation or rights

of others, which conflict they resolved by a weighing of the relevant

considerations on either side. Without repeating what is already

established in the facts of the Commission's Report I find that,

having regard to their margin of appreciation which they undoubtedly

have, the Danish courts were in the circumstances entitled to

consider the interference to be necessary and I also consider that

their reasons for so concluding were relevant and sufficient. The

sanction, a fine of only one thousand Danish crowns was not, in my

view, disproportionate to the State's legitimate interest in

protecting the rights of the groups of individuals in question.

In view of the above I have come to the conclusion that there

has been no violation of Article 10 of the Convention in the present

case.

DISSENTING OPINION OF MRS. JANE LIDDY

The applicant arranged for an interview to be made, and

subsequently broadcast, with three youths whose views and language

(for example, "nigger", "animal") were of a nature to degrade a class

of persons on account of their race, colour, national or ethnic

origins, contrary to section 266 (b) of the Danish Penal Code.

The circumstances in which the interview took place included the

payment of a fee to the interviewees and the provision of drinks to

them. It may be that it is for good reason that, once the choice has

been made to interview someone, the interviewer would adopt a

respectful manner and show interest in what the interviewee has to

say, but nonetheless the observation can be made that this was the

way in which the interview was conducted. Moreover, there was no

balancing material.

These circumstances would have conveyed a degree of

respectability or legitimacy to the racist comments in the minds of

the interviewees, their friends and relatives, and in the minds of a

proportion - however unquantifiable - of the viewers of the

programme.

The majority of the Commission consider that "the way in which

[the remarks] were presented and the objective pursued by the

applicant were, in the circumstances, sufficient to outweigh the

effect, if any, on the reputation or rights of others" (paragraph 45

of the Report).

As indicated above, my own observation was that the remarks were

presented with ordinary professional respect, and without balancing

material. There remains the question of how much weight should be

attached to the objective pursued by the applicant.

With respect to the majority, it seems to me that the above-

quoted conclusion does not place enough weight on the effect of the

programme on those who were outrageously insulted by the words spoken

and whose rights needed to be vindicated. In particular, I consider

that more weight should be given to the generally accepted opinion of

the international community as to the limitations on freedom of

expression that must be considered necessary to counter the evil of

racism, and correspondingly less weight to the subjective aim of the

interviewer.

Article 4 of the International Convention on the Elimination of

All Forms of Racial Discrimination, adopted by the General Assembly

of the United Nations on 21 December 1965, makes it obligatory for

States party to "declare as an offence punishable by law all

dissemination of ideas based on racial superiority or hatred". At

international level, therefore, there has been for decades a

perceived need to provide a grave sanction against dissemination of

racist comments, whatever the motivation of their proponents. The

wisdom and experience of the drafters and adopters of that Convention

deserve respect.

I have no hesitation in concluding that the conviction and

sentence of the applicant was proportionate to the aim pursued and

answered a pressing social need in a democratic society. There has

therefore been no violation of Article 10. I am supported in this

conclusion by the consideration that although the applicant himself

did not subjectively aim at the degradation of others, this was the

foreseeable consequence of his action, contrary to the spirit of

Article 17.

APPENDIX I

TRANSCRIPT OF THE FILMED FEATURE OF 21 JULY 1985

*

I de sidste år har vi snakket en hel del om fremmedhad i

Danmark. Aviserne bringer jævnligt beretninger om mistro og

chikane mod fremmedarbejdere og flygtninge, men hvem er det

egentlig der hader minoriteterne, hvor kommer de fra, og hvad

er deres mentalitet. Jens Olaf Jersild har besøgt en gruppe

yderligtgående unge på Østerbro i København.

Flaget på væggen er sydstaternes flag fra den amerikanske

borgerkrig, men i dag er det også symbolet på racisme, det er

vartegnet fra den amerikanske bevægelse Ku Klux Klan, og det

viser hvad Lille Steen, Henrik og Nisse er.

Er du racist?

- Ja, jeg betegner mig i hvert fald selv som en.

- Det er en god ting at være racist.

- Vi mener, Danmark er for danskere.

(A) Henrik, Lille Steen og alle de andre er en gruppe unge, der

holder til i Studsgårdsgade, kaldet STUDSEN, på Østerbro i

København. Kommunalt boligbyggeri, mange af beboerne er

arbejdsløse klienter på bistandskontoret og kriminaliteten er

stor. En del af kvarterets unge har allerede været på kant med

loven mange gange og fået deres første domme.

(G) - Det var et almindeligt væbnet røveri på en tankstation.

(A) - Hvad gjorde du?

(G) - Ikke noget. Hoppede ind på en tank med en .. gun og fik dem

til at udlevere nogle penge. Og så hoppede jeg ud igen. Andet

var det sådan set ikke.

(A) Hvad med dig, hvad skete der?

(G) - Det vil jeg ikke nærmere komme ind på her.

(A) Men det var vold?

(G) - Ja

(A) Du er lige kommet fra ... du har været anholdt, hvad blev du

anholdt for?

(G) - Gadeuorden.

(A) Hvad skete der?

(G) - Lidt oppe at slås med politiet sammen med nogle venner.

(A) Sker det tit?

(G) - Ja, herude gør det.

(A) Ialt er der 20-25 unge fra 'STUDSEN' i samme gruppe. De samles

et stykke væk fra boligbyggeriet ved nogle gamle huse, der skal

rives ned. Her mødes de for at være sammen om bl.a. at være

racister, om det at hade fremmedarbejderne og det at støtte Ku

Klux Klan.

(G) - Ku Klux Klan det er noget, der stammer fra staterne i gamle

dage af under - som du selv ved - med Borgerkrigen og sådan

noget, for nordstaterne de ville have niggerne skulle være frie

mennesker mand, det er jo ikke mennesker, der er jo dyr, altså

det er noget helt forkert, der er sket, folk skal have love til

at holde slaver, synes jeg i hvert fald.

(A) Fordi negre det er ikke mennesker?

(G) - Nej, det kan du også se mand på deres kropsbygning mand, store

flade næser med blomkålsører og så noget mand, brede hoveder og

så noget bred krop mand, lådden, du ser på en gorilla og

sammenligner med en abe mand, så er det samme fremgangsmåde

mand, samme bevægelser, lange arme mand, lange fingre og sådan

noget, lange fødder.

(A) Der er en masse mennesker, der siger noget andet ikke, der er

en masse mennesker, der siger, jamen ...

(G) - Du kan jo bare tage et billede at en gorilla mand og så kigge

på en nigger, der er jo samme kropsbygning og det hele mand,

flad pande og alt muligt.

(A) Der er mange negre, hvis du ta'r USA f.eks., så er der mange

negre der sidder på høje stillinger.

(G) - Der skal jo altid være nogen der skal vise sig, som om de er

bedre end den hvide mand, men i den lange ende er det den hvide

mand der er bedre.

(A) Hvad betyder Ku Klux Klan for dig?

(G) - Det betyder en hel del, for jeg synes, det er rigtigt det de

laver. Nigger, det er ikke et menneske, det er et dyr, det er

de andre fremmedarbejdere også, tyrkere, jugoslavere og hvad de

så hedder alle sammen.

(A) Henrik er 19 år og på bistandshjælp, han bor i et lejet værelse

i Studsgårdsgade. Henrik er en af de varmeste tilhængere af

klanen og han hader fremmedarbejderne "perkerne".

(G) - De kommer herop mand og nasser på vores samfund, vi andre vi

har problemer nok med at få bistandspenge mand, de får dem

udbetalt, vi kan kraft ed... stå og skændes med de idioter

deroppe på bistanden, for at få vores penge mand, de får dem

bare mand, de står først i boligkøen, får bedre lejligheder end

os andre mand, og en del af vore venner der har børn og sådan

noget mand, de sidder i noget værre slum mand, de kan ikke

engang få bad i deres lejligheder og sådan noget mand, så

kommer der sådan en "perker"-familie mand med 7 unger mand, de

ryger lige ind i en dyr lejlighed mand, får hele lortet betalt

og sådan noget, det kan da ikke være rigtigt mand, Danmark er

for danskerne, ikke?

Det, at de er "perkere", det kan vi ikke li' vel, og så kan vi

ikke li' deres mentalitet med at gå, hvad er det nu det hedder,

altså de må s'gu snakke altså, hvis de har lyst til at snakke

russisk når de er inden døre ikke, så er det okay, men altså

det vi ikke kan li', det er når de farer rundt i det der

zimbabwe-tøj og så snakker hula-hula sprog ude på gaden og hvis

man skulle spørge dem om noget eller hvis man kommer ind i

deres taxa, som du kører i så siger de, jeg ved ikke hvor det

ligger, du fortælle vej, ikke.

(A) Er det ikke sådan også, at I måske er lidt misundelige, altså

der er nogen af "perkerne", som I kalder dem, der har

forretning og de har biler, de kan få tingene til at ...

(G) - Det er narko, de sælger mand, halvdelen af befolkningen inde

på "Vestre", de sidder for narko mand, ihvertfald de halve af

dem, der sidder inde på Vestre fængsel mand, det er sådan

nogle, der sidder for narko eller sådan noget.

De sidder for narko, alle "perkerne" ikke. Det må være

rigeligt, hvad er det nu det hedder, der skal ikke være stoffer

her i landet, men skal de smugles ind, så må vi nok selv stå

for det altså, jeg synes det er for dårligt der skal komme

udlændinge herop for - hvad er det nu det hedder - gøre Danmark

mere til sprøjten og sådan noget.

Vi har malet deres døre og håbet, at de bliver trætte af det,

at de snart forsvinder, og hoppet på deres bil og smidt maling

i hovedet på dem, når de ligger og sover altså.

(A) Hvad var det, der skete med den maling, hvorfor maling?

(G) - Fordi det var hvid maling, det synes jeg, det passede sådan

godt. Det var effekten over det hele.

(A) Den smed I altså ind gennem ruden til en fremmedarbejderfamilie?

(G) - Ja.

(A) Hvad skete der?

(G) - Han fik det bare i hovedet, så skete der ikke noget andet,

altså, han vågnede vist nok, så kom han ud og råbte noget på

hula-hula.

(A) Har han meldt det til politiet?

(G) - Det ved jeg ikke om han har, det får han nok ikke noget ud

af.

(A) Hvorfor ikke?

(G) - Det ved jeg ikke, der en en barnestreg, som andre smider vand

i hovedet på folk altså, så har han fået en bøtte maling der.

Det kan de nok ikke gøre noget videre ud af.

---

(A) Per Axholt, kaldet "Pax", er ansat i fritids- og ungdomsklubben

i Studsgårdsgade, her har han været ansat i flere år, men mange

opgiver efter langt kortere tid p.g.a. det hårde miljø. Per

Axholt mener, at de unge forfølger fremmedarbejderne, fordi de

unge selv er svage og skuffede.

Hvad tror du de vil have, hvis man spø'r dem?

*

- Det samme som du og jeg vil have, lidt styr på tilværelsen,

lidt arbejde man synes er anstændigt, og man kan li', et

rimeligt økonomisk udbytte, en rimeligt velfungerende familie,

en kone eller en mand og nogle børn, sådan en rimelig borgerlig

tilværelse som man kender den.

(A) De gør jo mange ting, som i hvert fald forhindrer dem i at få

det sådan.

(P) - Det er rigtigt.

(A) Hvorfor tror du de gør det?

(P) - Af mangel på bedre at foretage sig. De har fået bombet

ind i sig igennem lang, lang tid at en forudsætning for at have

succes, det er at have penge. Penge vil de ikke være i stand

til at erhverve sig på en regulær måde, og det foregår så tit

via kriminalitet og det er jo klart, at går den, så går den, og

går den ikke, så går den ikke og det er jo så også derfor, vi

ser at mange unge mennesker i den slags situationer, de hyppigt

vil ryge i fængsel, for det går s'gu ikke.

---

(A) Hvornår lavede du første gang noget kriminelt?

(G) - Det ved jeg ikke, da jeg var 14 eller sådan.

(A) Hvad lavede du?

(G) - Første gang så langt kan jeg s'gu ikke huske tilbage, det ved

jeg ikke, indbrud.

(A) Har du, hvad man kunne kalde en kriminel løbebane?

(G) - Det ved jeg ikke om man kan kalde den.

(A) Du lavede noget kriminelt første gang da du var 14.

(G) - Nå ja, sådan kan man da godt sige det, altså, hvis det er en

kriminel løbebane, hvis man har lavet kriminelt fra 15 og

opefter, så har jeg vel haft en kriminel løbebane.

(A) Vil du fortælle om nogle af de ting, du har lavet?

(G) - Ikke specielt, det har været det samme og det samme. Det har

været videoknæk, hvor "perkerne" har stået som aftagere, dem er

der penge i. Hvis folk vil gå herude og hygge sig og være

racister og drikke bajere og lave al muligt sjov så er det

klart, så gider man ikke sidde i spjældet.

(A) Men er det noget, der for alvor afskrækker folk fra at lave

noget ulovligt?

(G) - Nej, det er ikke fængsel, det afskrækker ikke.

(A) Er det derfor man tit hører om, at nogen herude den ene aften

efter den anden er i slagsmål med knive og ting og sager, er

det at de i virkeligheden ikke er bange, hvis politiet får fat

på dem?

(G) - Ja, der er ikke nogen efterfølgning, altså der er ikke nogen

dårlig bivirkning, så det er nok derfor, det passer meget godt

altså. Altså især sådan nogle ting som slagsmål og knivstikkeri

og smadre alt muligt, det hvis du endelig skulle ryge i

spjældet for det, så ville det være så latterligt en lille dom,

så det ville altså ... vi kommer som regel ud om morgenen, når

vi har lavet ballade. Sidste gang vi lavede ballade ovre på ...

bodegaen, der kom vi ud om morgenen også, det sker der ikke

rigtig noget ved. Det afskrækker ikke, men vi er lige 5, der er

kommet ud nu her og så fejrede vi ham den sidste, der var

kommet ud i går, de gider nok ikke ryge ind foreløbig, så det

store kriminelle det bliver ikke lavet igen.

(A) Du vil gerne flytte tilbage til Studsgårdsgade, hvor du er

vokset op, men vi ved, det er et meget kriminelt miljø, vil du

gerne have at dit barn bliver ligesom dig selv?

(G) - Næh, men det gør hun nok heller ikke, for det første så er

chancerne endnu mindre fordi det er en pige, det viser

statistikkerne, de er ikke så store, altså det gør de jo nok

heller ikke, men man behøver jo heller ikke være kriminel,

fordi man bor i et kriminelt miljø. Hvis hun gik og slog gamle

damer ned og huggede deres tasker, så var det klart, det ville

jeg overhovedet ikke finde mig i.

(A) Hvad så, hvis hun var med til at tæve fremmedarbejderne og sådan

noget, hvad så?

(G) - Det ville være okay, det ville jeg ikke klage over.

---

(A) Så må vi jo se, om mentaliteten i familien ændrer sig i løbet

af den næste generation. Og så kan vi da tilføje, at

ungdomsgrupper i stil med denne her på STUDSEN på Østerbro er

opstået flere andre steder i København.

APPENDIX II

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

25 July 1989 Introduction of the application

11 December 1989 Registration of the application

Examination of Admissibility

7 October 1991 Commission's decision to invite the

Government to submit observations

on the admissibility and merits of

the application

20 December 1991 Submission of the Government's

observations

17 February 1992 Submission of the applicant's

observations

8 September 1992 Commission's decision to declare

the application admissible

Examination of the merits

5 December 1992 Commission's decision to hold a

hearing on the merits of the case

6 April 1993 Hearing on the merits of the case

followed by the Commission's

deliberations

2 July 1993 Commission's deliberations on the

merits and final vote

8 July 1993 Adoption of the Report

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JERSILD v. DENMARK

JERSILD v. DENMARK

LEXI