Lexploria

Application No. 13778/88

Thorgeir THORGEIRSON

against

ICELAND

REPORT OF THE COMMISSION

(adopted on 11 December 1990)

TABLE OF CONTENTS

page

I. INTRODUCTION (paras. 1-17) ............................ 1

A. The application

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

B. The proceedings

(paras. 5-12) ..................................... 1

C. The present Report

(paras. 13-17) .................................... 2

II. ESTABLISHMENT OF THE FACTS (paras. 18-47) ............ 3

A. The particular facts of the case

(paras. 18-39) .................................... 3

B. Relevant domestic legislation

(paras. 40-47) .................................... 17

III. OPINION OF THE COMMISSION (paras. 48-87) .............. 19

A. Complaints declared admissible

(para. 48) ........................................ 19

B. Points at issue

(para. 49) ........................................ 19

C. Article 6 para. 1 of the Convention

(paras. 50-66) .................................... 19

D. Article 10 of the Convention

(paras. 67-85) .................................... 22

E. Recapitulation

(paras. 86-87) .................................... 25

Dissenting opinion by Sir Basil Hall ........................ 26

APPENDIX I : The applicant's article of 7 December 1983 ... 27

APPENDIX II : The applicant's article of 20 December 1983 .. 28

APPENDIX III: History of the proceedings ................... 30

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 an Icelandic citizen, born in 1933. He is an

author and resides in Reykjavík, Iceland. Before the Commission he is

represented by his lawyer, Mr. Tómas Gunnarsson.

3. The application is directed against Iceland. The Government

are represented by Mr. Thorsteinn Geirsson, Ministry of Justice, as

Agent.

4. The case concerns freedom of expression and the alleged

partiality of the court in proceedings in the context of allegations

of police brutality in Iceland. When the applicant learned about an

incident of police brutality in 1983 he published two articles in a

daily newspaper concerning these matters. Due to the publication of

these articles, criminal proceedings were instituted against the

applicant for defamation of character and he was subsequently found

guilty in respect of the charge brought against him and sentenced to

pay a fine. The applicant considers that his case was not heard by an

impartial tribunal and that his conviction amounts to an unjustified

interference with his right to freedom of expression. He invokes

Article 6 and Article 10 of the Convention.

B. The proceedings

5. The application was introduced on 19 November 1987 and

registered on 19 April 1988. The Commission considered the case on

10 March 1989 and decided to give notice of the application to the

respondent Government in accordance with Rule 48 para. 2 (b) of its

Rules of Procedure and to invite them to present, before 26 May 1989,

their observations in writing on the admissibility and merits of the

application.

6. Having been granted an extension of the time-limit, the

Government submitted their observations on 26 June 1989. The

applicant's observations in reply were submitted on 21 August 1989.

7. Legal aid under the addendum to the Commission's Rules of

Procedure was granted to the applicant on 27 July 1989.

8. On 4 October 1989 the Commission invited the parties to

appear before it at a hearing on the admissibility and merits of the

case.

9. The hearing took place on 14 March 1990. The applicant was

present in person and was represented by Mr. Tómas Gunnarsson as

counsel. The Government were represented by their Agent Mr. Thorsteinn

Geirsson and by Mr. Gunnlaugur Claessen as counsel.

10. Following the hearing, the Commission declared the applicant's

above complaints under Article 6 and Article 10 of the Convention

admissible. Other complaints submitted under Article 6 of the

Convention were declared inadmissible.

11. The parties were then invited to submit any additional

observations on the merits of the case which they wished to make. Such

observations were submitted by the applicant on 15 May 1990. The

Government submitted further evidence on 28 June 1990 but informed the

Commission on 4 September 1990 that they did not intend to submit any

additional observations on the merits.

12. 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 20 March 1990 and 4 September 1990. The Commission now

finds that there is no basis upon which such a settlement can be

effected.

C. The present Report

13. 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

J.A. FROWEIN

G. SPERDUTI

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

MM. L. LOUCAIDES

14. The text of this Report was adopted on 11 December 1990 and is

now transmitted to the Committee of Ministers of the Council of Europe

in accordance with Article 31 para. 2 of the Convention.

15. The purpose of the Report, pursuant to Article 31 para. 1 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.

16. The original version of the two newspaper articles appears as

Appendices I and II to this Report. A schedule setting out the history

of the proceedings before the Commission is attached hereto as

Appendix III and the Commission's decision on the admissibility of the

application as Appendix IV.

17. The full text of the parties' submissions and the documents

concerning the case are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular facts of the case

18. From 1979 to 1983 a number of incidents occurred in Iceland

which involved allegations of police brutality. Thirteen such

incidents were reported to the police and gave rise to investigations.

In the last case, which occurred in 1983, it appeared that a journalist

had been ill-treated by the police in Reykjavík. The responsible

policemen were later prosecuted and convicted. This incident was

extensively covered in the press and it caused the applicant to

publish two articles about police brutality in the daily newspaper

Morgunbladid on 7 and 20 December 1983 respectively. The first article

(as to the original version, see Appendix I) read as follows:

(translation)

19. "LET US CONSIDER NOW!

An open letter to Minister of Justice Jón Helgason

Honourable Minister of Justice:

(1) Recently a problem that for several years had been

bothering - if not obsessing - my mind, all of a sudden came

into the spotlight of the press. A journalist of your own

very progressive party-newspaper - Tíminn - had a difficult

experience and returned with some injuries from the jungle

of the Reykjavík night-life. Often the perils of the jungle

and other alien regions can help us visualise the hardships

that missionaries have had to endure. This was the case

with Stanley and Livingstone, even if they were preaching

God's own Kingdom rather than the idea of the co-operative

Utopia.

(2) In our case one of your political missionaries,

journalist Skafti Jónsson, met hardship in the jungle of the

night and his facial injuries have clearly been exposed in

four-column pictures in the press. Of course we are

scandalised when we see this.

(3) We do not like to realise how our policemen have

treated the handsome face of this journalist who tells us

that he innocently was looking for his overcoat when the

uniformed beasts of the aforementioned jungle attacked him.

(4) In my mind Mr. Jónsson's case is of little

importance. But as it has caught much attention and been

widely discussed, I would like to use the opportunity to

point out to you that the real problem is in fact bigger and

much more horrifying.

(5) The case of Mr. Jónsson is but a top of an iceberg

that news-people have brought to our attention. Beneath, in

the dark sea of silence lurks a problem nine times bigger.

(6) That is the part I should like to make you aware of,

because you are Minister of Justice and thus in command of

those uniformed beasts that creep around, silently or not,

in the jungle of our nightly jollification.

(7) I am certainly not underestimating the hardships and

pains that this young man unnecessarily has had to endure.

But on the other hand Mr. Jónsson obviously is going to

recover. The blue spots on his face will turn violet and

then brown. In due time they finally will disappear. Mr.

Jónsson shall return to his job at your newspaper and his

case will be forgotten under the snow of future daily

scandals that incessantly will be coming down.

Unless we use this opportunity to study the real problem.

(8) Several years ago I had to spend some weeks at the

Surgery Department of our Communal Hospital. In a room of

the same corridor a boy of twenty was lying in his bed. A

promising and a charming young person. But his paralysed

condition on the other hand did not allow him to move any

part of his body, except the eyes. He was able to read with

the aid of special machinery and a helping hand which would

turn the pages for him.

I was told that his hopes for recovery were minimal.

(9) The boy's room-mates told me that his injuries had

been caused by bouncers of a restaurant and some policemen.

I refrained from believing this instantly so I inquired

among the hospital staff and - Yes, right they were; there

we had a victim of the Reykjavík night-squad.

(10) The picture of this paralysed youngster somehow

followed me out of the hospital and I couldn't help talking

about his case. Then I found out that most people knew

various stories of persons who had had a similar or even

worse experience with the uniformed beasts. Individuals had

been brought back to the intellectual capacity of a new-born

child as a result of choke-holds that policemen and bouncers

learn and use with brutal spontaneity instead of handling

people with prudence and care. Such stories are so

identical in substance and abundant that you can hardly

treat them as simple lies any more. Another thing that goes

with those stories as inevitably as brutality follows

stupidity is the statement that suing a policeman in such a

case would be hopeless. The investigation would take place

at another department of the same police and be carried out

by a troop of persons who see their duty in washing any

policeman clean of all accusations.

(11) Therefore the victims of the police brutes rest in

agony and many years can pass without an opportunity to

discuss their problems reasonably.

(12) Now there might be one of those rare occasions.

That is the reason for this letter of mine.

(13) I have little doubt that there is something

essentially wrong in a system where the persons in charge

seem to disregard all justice and misinterpret their duties

by allowing brutes and sadists to practise their perverted

mentality - no matter who is the victim. In my opinion the

Reykjavík Chief of Police shows a stubborn attitude by

refusing to release the accused policemen from their duties

while the 'Jónsson case' is being investigated. And he

seems to lose little of his self-confidence, even in a case

where he is facing one of your own partisans. But we shall

see.

(14) Even if Mr. Jónsson wins his case this will be an

exception and shall change nothing. Other victims of this

brutality would continue to pile up in silence as before.

(15) My opinion is that the real problem lies with a

system where one policeman investigates another policeman's

violations of correct professional conduct. This opinion I

share with other much more competent persons - who obviously

hesitate to pronounce their opinion on this matter fearing

the revenge and beatings that might follow.

The matter is all that serious.

(16) Two of your predecessors in office have received

letters from me regarding these problems. Neither of them

had the courtesy to answer.

(17) Recently I have had the opportunity to observe

pictures of you in the press and I have noticed their fair

expression of distinct honour. This indeed is the very kind

of facial expression that anytime could easily penetrate

into your character even if it originally had only been

meant for the photographer.

Therefore I am writing to you as well.

And proposing my idea for the third time:

(18) Please remove all cases of police brutality from

this automatic and hopeless washing-machine where they have

been treated. As long as policemen are allowed to clean up

one another's filth you will never have a possibility to

even consider most urgent things like character tests that

policemen should pass before they are taught fatal tricks to

exercise on people, or their very own responsibility in

cases where they temporarily have lost control of their

furiousness - all of which is the condition for a competent

police force worthy of the power given to them.

But how can we get rid of the old system?

(19) You have to form a committee of trustworthy people

to investigate the rumours, gradually becoming public

opinion, that brutality is growing within the Reykjavík

police force and being unfairly protected. Such a committee

could advertise for victims of police brutality and gather

their testimonies for eventual verification. Hopefully the

committee might find out that a tiny minority of policemen

are responsible. Those individuals should be advised to

look for other jobs.

(20) I assume that our police problem could be compared

with the so-called 'youth-problem' in the sense that

comparatively few individuals are responsible for this

negative public opinion. And those individuals would not

exactly be the typical or the most intelligent ones of

either group.

(21) I have seen our policemen perform many a good deed

and some of the very fine people I know are policemen. We

cannot do without them. But I owe it to the young man I met

at the Communal Hospital to gather my courage and forward

this proposal: let us do a cleaning so that the adventurers

who choose to risk their skin in the jungle of the Reykjavík

night-life in the future can at least be assured that a

policeman in uniform is not among the perils of this jungle.

The other beasts will certainly do.

(22) In court you sometimes forward a secondary claim in

case that your main demand will not be accepted. Should

you, Minister Helgason, fail to have this neutral

investigation realised I call upon journalists (Skafti

Jónsson for ex.) to start this investigation and publish the

results in a book that very probably would become a

bestseller. I would at any time be prepared to participate

in this job.

Yours sincerely with respect,

Thorgeir Thorgeirson"

20. The second article (as to the original version, see

Appendix II) read as follows (extract):

(translation)

21. "STRIKE WHILE THE FLY IS SITTING ON MY NOSE...

(1) Thorgeir Thorgeirson's statement on police captain

Einar Bjarnason's behaviour in a television

programme on the evening of last December the 13th.

...

(2) Last Tuesday, December 13th, there was a programme

about the police problem on our TV. Among the participants

were two police intellectuals who somewhat lost control of

the situation, according to the opinion of many spectators.

The single spectator I heard excusing captain Elíason and

captain Bjarnason argued that there had been only two of

them and it would exactly have been the controller who was

absent.

This might well be true.

(3) Towards the end of the programme captain Bjarnason,

who happens to be the chairman of the Reykjavík Police

Association, organised an amusing happening: after having

consulted captain Elíason with much paper rattling and

whispering, he started reading from a typed document

containing filth about my unreliable, ever-lying person

(according to this document which the police somehow had

managed to have signed by a completely irrelevant person).

(4) Bjarnason could easily have got this message of his

across without breaking the law on radio-broadcasting and

thus risking both his honour and his job. Many spectators

have been wondering about this.

Of course.

(5) This venture can hardly be explained by the lack of

control alone so I feel forced to add another article to

what I had thought to be my final word about the matter a

week ago (this is written Thursday the 15th and will be

delivered to the newspaper on 16 December).

I have to mention my experience during the last week.

(6) Wednesday last week, i.e. December 7th, Morgunbladid

published my letter to the highest authority of justice in

this country. My request was that he immediately order a

neutral investigation of the police problem instead of

having the problem control itself forever. Naturally I

never expected my text to be specially applauded at police

stations.

(7) A certain misunderstanding is always inevitable.

Misconception has bloomed around this matter; my ideas of a

writer's duty are that he should, at least sometimes, be the

conscience of his vicinity, but our police officers seem to

be of a totally different opinion, as only was to be

expected.

No harm in that.

(8) The morning my letter to Minister Helgason appeared

in the newspaper astonishingly many people phoned to me.

Among them was a certain Mr. Hermannsson who introduced

himself as police sergeant of Reykjavík. He wanted to know

what case I had been writing about in my article. I told

him that the subject had been the situation in general; no

isolated case. The cases behind this situation were several

hundreds at least. Hermannsson then inquired about the name

of the paralysed boy at the Communal Hospital, the one I had

mentioned. I told him, which was true, that I had probably

never known the boy's name. Then I asked Hermannsson if the

police actually was investigating the matter. His answer

was yes. I then pointed out to him that it would be a very

bold thing to do in the circumstances: if the police once

again was investigating a matter concerning their own

affairs. At the same time I refused to give any further

testimony by telephone, except that I told him the date of

my hospitalisation. We bade farewell.

...

(9) Time passed until Sunday. The newspapers were full

of sobbing testimonies written by policemen. Morgunbladid

of Sunday published an article by Jóhannes Jónsson, a

policeman of course, who referred to the news item from

Friday the 9th which meant that his manuscript would have

reached the editiorial office Saturday. This was peculiar

to me, knowing that the normal waiting time of an article

for Morgunbladid is something like four to six days from

presentation of the manuscript to publishing day. That is

valid for us plain-clothes citizens. In his article police

officer Jónsson had the reiterated 'police-truth' to tell

that 'the case Mr. Thorgeirson had referred to' was there on

page 13 of Friday's Morgunbladid.

...

(10) Since then something has occurred, and now I must

ask Mr. Hallsson to keep his promise and publish this

statement of mine. Even though captain Bjarnason's stroke

towards the end of the TV programme last Tuesday proved to

be so much askew that I am not the one it hurts, I must

point out how very typical and police-like his behaviour has

been.

(11) What is the core of this so called 'police problem'?

Well - many people think that our policemen already have

attacked too many a citizen, guilty or innocent. They have

been striking far too frequently.

(12) Their recent reactions in the press have been filled

with quotations from 19th century literature, which is

tremendously amusing. But older classical literature

lingers behind. They might also have been consulting the

Saga of Grettir the Strong whose principle was: The best

way to endure the Bads of Life is to suffer the Worse.

Anyway that seems to be their line.

(13) This is far too pathetic a principle for a whole

police force to follow if we really want people to

appreciate their services.

(14) Since Tuesday many people have been phoning and

expressing the opinion that the TV programme on the police

problem was a disastrous document for future generations to

study.

(15) - They should have been in uniforms, someone said.

Captain Bjarnason's behaviour was so typical of what

gradually is becoming the public opinion of our police force

in defence: bullish falsifications, illegal actions,

superstition, hasted stupidity.

And what not?

(16) The title of this article is borrowed from the

folklore everyone should know, about the couple hunting the

fly. It came to my mind when I was observing captain

Bjarnason fighting his own inventions during the TV

programme. Should our Minister of Justice not have had time

to see the programme I would like to advise him to borrow

the tape still existing at the TV station. Comical

interpretations have something pathetic about them and this

is a top one on what the general public more and more refers

to as the 'police problem'.

(17) Comic or pathetic, the programme should be an

example to show us the necessity of an impartial examination

of the problem to prevent the police from repeatedly hurting

themselves while investigating their own affairs in order to

support a completely false image of their childlike

identity.

(18) Let us stop the fight and consider the proposal I

forwarded in my letter to the Minister of Justice. We could

even consider a more sarcastic idea that a friend of mine

proposed:

(19) Thorgeir, he said. Wouldn't it be an idea to have a

really good pedagogical psychologist study this police

aggression?

Hopefully the matter is not all that complicated.

With thanks for the publication.

Thorgeir Thorgeirson"

22. Due to the contents of these articles, the Reykjavík Police

Association requested the public prosecutor to investigate the matter.

23. On 21 May 1984, the public prosecutor, TB, decided to send the

case to the State Criminal Investigation Police (SCIP) with the request

to investigate whether there might have been a violation of Section 108

of the Icelandic Penal Code (offences against state officials). The

applicant was accordingly interrogated on 18 June 1984 at the SCIP

headquarters. During this interrogation the applicant was assisted by

his lawyer.

24. On the basis of the investigation of the case, the public

prosecutor, TB, issued a bill of indictment on 13 August 1985 whereby

the applicant was charged with having published defamatory remarks

against policemen in the two articles. As regards the first article,

the following passages were considered by the public prosecutor to be

defamatory:

(translation)

"uniformed beasts" (para. 19(3) above).

"of those uniformed beasts" (para. 19(6) above).

"The boy's room-mates told me that his injuries

had been caused by bouncers of a restaurant and

some policemen. I refrained from believing this

instantly so I inquired among the hospital staff

and - Yes, right they were; there we had a victim

of the Reykjavík night-squad" (para. 19(9) above).

"Then I found out that most people knew various

stories of persons who had had a similar or even

worse experience with the uniformed beasts.

Individuals had been brought back to the intellectual

capacity of a new-born child as a result of

choke-holds that policemen and bouncers learn and

use with brutal spontaneity instead of handling people

with prudence and care. Such stories are so identical

in substance and abundant that you can hardly treat

them as simple lies any more" (para. 19(10) above).

"victims of the police brutes" (para. 19(11) above).

"allowing brutes and sadists to practise their

perverted mentality" (para. 19(13) above).

25. As regards the second article, the following passage was

considered to be defamatory:

(translation)

"Captain Bjarnason's behaviour was so typical

of what gradually is becoming the public opinion

of our police force in defence: bullish falsifications,

illegal actions, superstition, hasted stupidity"

(para. 21(15) above).

26. In the indictment it was finally stated that the afore-cited

"defamatory passages", which were "directed against unnamed and

undesignated members of the Reykjavík police force", were considered to

violate Section 108 of the Penal Code.

27. The Chief Judge of the Criminal Court of Reykjavík assigned

the applicant's case to judge PG. He decided that the case was to be

filed in the Criminal Court on 10 September 1985 and the indictment

was served on the applicant the day before, summoning him to appear.

At the applicant's request his arraignment was deferred to 17

September 1985. Accordingly nobody appeared in court on 10 September

1985.

28. The applicant's case was thus dealt with by the Criminal

Court of Reykjavík presided over by judge PG on 17 September 1985.

According to the Court transcripts the following happened during this

session:

(translation)

"At 10 a.m. the defendant, Thorgeir Thorgeirson ..., appears

in court.

He is accompanied by Tómas Gunnarsson, Supreme Court

advocate.

The provisions of Section 77 para. 2 of Law no. 74/1974 are

observed.

The defendant requests that the Supreme Court advocate be

appointed as his defence counsel; the Supreme Court advocate

accepts his appointment in court and is handed copies of all

case documents.

The defendant is asked whether he wrote the article 'Let Us

Consider Now' with the sub-title 'An Open Letter to the

Minister of Justice, Mr. Jón Helgason', published in the

Morgunbladid 7 December 1983, and the article 'Strike While

the Fly Is On My Nose', published in the same newspaper on

20 December 1983. The defendant states that he wrote the

articles.

The defendant considers that the statements described in ...

the indictment are correctly quoted, but as far as he can

see they are removed from their context with the remaining

text.

The defendant is confronted with a statement made by him

to the State Criminal Investigation Police on 18 June 1984.

He accepts having made the statement. He says it has been

correctly recorded, and accepts having signed it.

The defendant is then confronted with a letter written by

him to the State Criminal Investigation Police on 19 June

1984. He accepts having written the letter.

He is then asked whether he can substantiate the statements

which are quoted after him in the indictment.

The defendant says that in their context in the indictment,

on which he has already commented, he neither can nor is

under any obligation to substantiate the statements in

question; that this is not his literary product, it is the

product of the accuser.

Read, confirmed as correctly recorded.

The defendant, in consultation with his counsel, asks to be

granted a period of time for acquainting himself with the

case documents and for expressing further his opinion on

them and the litigation.

The judge calls the defendant and his counsel to appear in

court at a session on Tuesday the 24th of this month at

2 p.m."

29. The public prosecutor did not make an appearance during this

court session or when the case was brought up again on 24 September

1985. On the latter occasion, a record was made of counsel's statement

to the effect that, since the public prosecutor had not made an

appearance, he considered that the judge both represented the

prosecution and performed the role of judge. For this reason he

motioned that PG yield his seat as judge in the case. In a decision

rendered by PG in court the following day counsel's claims and

arguments were quoted verbatim whereupon the judge stated his opinion

as follows:

(translation)

"This case is not subject to prosecution and defence according

to Section 130 of the Code of Criminal Procedure (CCP), no. 74/1974.

(The applicant's) motion that the judge yield his seat is

unsupported by any valid arguments and totally unfounded. The

judge is neither obliged nor allowed to yield his seat."

30. The applicant requested that this decision be summarily

appealed against to the Supreme Court of Iceland, but this was denied

by the public prosecutor on 26 September 1985 on the basis of Section

171 of the CCP.

31. The applicant then complained to the Ministry of Justice which,

however, by letter of 18 October 1985, found no reason to support the

applicant's plea.

32. The applicant's case was subsequently examined in the Criminal

Court in six sessions conducted by judge PG during the period 9

October 1985 to 28 April 1986. The applicant and his counsel made an

appearance in court every time and the public prosecutor, TB, made an

appearance every time save one during which a video taped TV

programme was presented to the Court. Documents were submitted, oral

statements received and witnesses heard. On 28 April 1986 the parties

agreed that further investigation in court was not required. Counsel

was then afforded an opportunity to present a written defence and

granted a period until 3 June 1986 for this purpose. The public

prosecutor declared, however, that he would make no further

submissions.

33. On 3 June 1986 the applicant submitted his written defence. He

did not dispute the fact that he was the author of the articles in

question but maintained:

(translation)

"If public opinion turns sour, confidence in policemen is

lost, also in policemen who never have as much as hurt a

fly. In the autumn of 1983 this loss of confidence had

assumed proportions outright dangerous to public welfare.

So, when the case of Skafti Jónsson emerged, I became aware

of this danger. And my oft-mentioned article published in

Morgunbladid on 7 December 1983 was my reaction to this

dangerous situation. By writing the article I consider that

I was performing the duty of an honourable writer who studies

the spirit of the nation and reports his findings without

any evasions. This is clear to any person who is willing to

read the article in its entirety using the whole of his

mental faculties to perceive what is written there.

...

But the main purpose of the article, and its conclusion, was

the request to the Minister to have an investigation carried

out on whether public opinion is correct or incorrect. The

article was intended to raise a lawful, urgent question.

Even though my intention was to write an article completely

within the limits of the law I shall not hide the fact that

I also tried to phrase the text in such a way as to elicit

answers from the parties concerned. The question, of course,

was about the truthfulness of the menacing public opinion.

If this was incorrect the police authorities (which alone

may possess comprehensive knowledge of these matters) could

be expected to react in the composed, confident and calm

manner of respectable, honest souls. The Board of the Police

Association and the Chief of Police would simply have

recommended to the Minister that he initiate at the earliest

opportunity an impartial investigation of the matter

asked for. Such a reaction would also have calmed the public

considerably, as it would have borne witness to good faith."

34. On 16 June 1986 PG pronounced his judgment in which he found

inter alia:

(translation)

"It (is) maintained that the prosecution authority did not

make an appearance in court every time, and 'failed to

submit a brief in the Criminal Court in support of the

indictment'. The prosecution authority thus allegedly broke

off 'prosecuting its case', and therefore 'the case should

be terminated or acquittal granted for that reason alone'.

In this context it is also stated in the defence:

'This also has the effect that preconditions for a defence

counsel's work are lacking. After evidence has been

collected in criminal court he lacks knowledge of the

arguments the prosecution may employ when the case is

submitted for adjudication. Thus the conditions as regards

the substance of the defence's arguments are uncertain, and

answers to arguments of which the defence may have very

limited knowledge are not justified or merited. The case

should be dismissed from court on these grounds alone'.

The view that the case should be dismissed or the defendant

acquitted as it is not being pursued by the prosecution

authority cannot be sustained since it cannot be seen to be

subject to prosecution and defence according to Sections

131-136 of the Code of Criminal Procedure.

The defence also maintains that in writing the two articles

the defendant was performing an author's duty to society by

drawing attention to physical injuries to people caused by

the police, bringing such matters to light and requesting

official action to prevent them. Such indications command

little attention unless published in the media, and even

that frequently goes unnoticed. Strong words and stylistic

artifices also seem necessary, as authors very well know.

The defendant has been an author by profession for many

years, and public authorities have acknowledged his work,

i.a., by the payment of salaries. He has conducted his work

under the protection of Article 72 of the Constitution,

which provides that censorship and other limitations of

freedom of the press may never be enacted.

In fact the constitutional provision quoted also provides

that a person may be held responsible for printed

statements, a principle which never has been disputed in

Icelandic law. There are in statute law various provisions

that make punishable the expression in print of certain

thoughts, or the making in public of certain statements,

e.g., in print. Aside from Section 108 of the General Penal

Code a reference may be made in this regard to Sections 88,

95, 121, 125, 210 and 229, and Sections 233.a to 237 of the

same Code. The defendant cannot be deemed to enjoy any

privileges or a greater freedom of expression than others

owing to his profession as author.

The defendant's newspaper articles were published in his

name, and he has acknowledged having been their author. The

defendant was domiciled in Iceland when the articles were

published in the Morgunbladid. According to Section 15 of

the Law regarding the Right of Publication, no. 57/1956,

he therefore carries criminal liability and liability for

damages on account of the contents of the articles.

In the indictment the statements on account of which the

charges are made are considered to be directed against

unnamed and undesignated members of the Reykjavík police

force.

Notwithstanding that Section 108 of the General Penal Code

covers, as its text is phrased, offences against a specific

person among public servants, it also covers offences

against a definite group of public servants, cf., the

Supreme Court judgment mentioned in the Supreme Court

Reports vol. LIV p. 57.

The words 'uniformed beasts' and 'of those uniformed beasts'

are, in the context in which they are published, held to be

vituperation and insult to unnamed and undesignated members

of the Reykjavík police force. These statements are

punishable according to Section 108 of the General Penal

Code.

In the indictment these statements are considered defamatory

allegations. Having regard to Section 118 para. 3 of the Code

of Criminal Procedure, no. 74/1974, the defendant can

nevertheless be held responsible for their publication, as

his action is in other respects correctly described and his

defence cannot be held to have been prejudiced for this

reason.

The passages 'The boy's room-mates ... Reykjavík

night-squad' and 'Then I found out ... simple lies any more'

and the words 'the victims of the police brutes' are, both

alone and in their contexts in the defendant's newspaper

article in question, deemed to constitute allegations

against unnamed and undesignated members of the Reykjavík

police force of many and serious acts of physical assault

against persons who thus became disabled. This falls under

Section 218, cf. Section 138, of the General Penal Code,

a violation of which may bring a penalty of many years in

prison.

The defendant's allegation has not been justified, and by

the publication of these statements in the article he is

liable to punishment according to Section 108 of the

General Penal Code.

The statements 'with the uniformed beasts' and 'police

brutes' must also be deemed to be insults and vituperation

directed against unnamed and undesignated members of the

Reykjavík police force.

In the indictment these statements are considered a

defamatory allegation, but according to the provisions

referred to above the defendant can nevertheless be held

responsible for them according to Section 108 of the General

Penal Code.

The words 'allowing brutes and sadists to practise their

perverted mentality' are in their context in the said

article held to be vituperation and insults to unnamed and

undesignated members of the Reykjavík police force.

In the indictment they are considered a defamatory

allegation, but according to the provisions referred to

above the defendant can nevertheless be held responsible for

them according to Section 108 of the General Penal Code.

The passage 'Their behaviour* was so typical of our police

force in defence: bullish falsifications, illegal actions,

superstition, hasted stupidity' has not been justified. With

the exception of the words 'superstition, hasted stupidity'

the passage is considered to involve an allegation against

unnamed and undesignated members of the Reykjavík police in

respect of falsifications and other unspecified criminal

offences. This falls under the provisions of Chapters XIV

and XVII of the General Penal Code, a violation of which may

bring heavy prison sentences.

___________

* The applicant's article reads: Captain Bjarnason's behaviour ...

(see para. 21(15) above)

___________

By making these statements the defendant has become liable to

punishment according to Section 108 of the General Penal

Code.

The words 'superstition, hasted stupidity' are, on the other

hand, considered to be within the limits of permissible

criticism, and the defendant is therefore not liable for

them under the indictment."

35. The applicant was sentenced to pay a fine of 10,000 Icelandic

crowns to the State Treasury, alternatively to be detained for eight

days if the fine had not been paid within four weeks from the service

of the judgment. The applicant was, furthermore, ordered to pay all

costs of the case, including fees to his defence counsel.

36. The applicant was present when the District Court judgment was

pronounced and immediately declared that he appealed against the

judgment to the Supreme Court of Iceland. The public prosecutor also

appealed against the judgment.

37. The applicant's case was heard in the Supreme Court on 22

September 1987. His court appointed counsel requested the annulment

of the District Court judgment as well as the entire procedure as from

the issuance of the indictment, and that the case be referred back to

the District Court for renewed adjudication. In the alternative he

requested acquittal of all charges.

38. In its judgment of 20 October 1987, the Supreme Court stated

inter alia:

(translation)

"... the claim of annulment is based on the same points

as were presented to the Criminal Court on 24 September 1985,

and the defendant's lawyer at that time had formulated the

following note:

'The defendant's lawyer refers to the fact that no

representative of the prosecution was present at the trial

or at any former sessions in this case. He also refers to

the statements of the judge that the defendant's indication

of the bill of indictment being a violation of Section 4 of

the Law on Copyright No. 73/1972, had not been presented to

the public prosecutor. Referring to para. 1 of Section 20 of

the Law 74/1974 and No. 1 of para. 1 of Section 36, the

defendant considers the fact of one person performing the

roles of both judge and prosecutor in the same case to be

unlawful. Considering the lack of initiative to modify this

state of affairs, the replacement of the judge of this case

is required'.

The Criminal Court judge rejected this request in a decision

against which the public prosecutor did not authorise a

summary appeal to the Supreme Court ... No evidence has

been produced in the proceedings of this case, which is

categorised as a legally non-prosecuted case in accordance

with Section 130 of the aforementioned law, that can justify

a disqualification of the judge or the annulment of the

judgment appealed against.

The Criminal Court's decision on the defendant's guilt

and its application of the penal law has to be confirmed.

The penalty imposed by the Criminal Court is to be

confirmed. The Criminal Court decision on the costs of the

case shall remain unaltered."

39. In a dissenting opinion one member of the Supreme Court stated

as follows:

(translation)

"In a criminal action on account of defamatory statements a

clear and definite circumscription of those to whom the

statements are considered damaging is necessary. This is

required both for the defence of the accused and for

resolving the difficult question of what limitations have to

be placed in this regard on a discussion of matters of

public concern.

The indictment in this case mentions in its introduction that

the action is brought 'on account of defamatory allegations

against policemen' and it is stated in its section III that

the defamatory allegations in question are directed 'against

unnamed and undesignated members of the Reykjavík police

force'. The indictment must thus be understood as relating to

an offence directed against policemen in Reykjavík generally.

While agreeing that the statements quoted in the indictment

are harsh and have, as such, not been justified, I consider,

by reference to the foundation laid by the indictment

according to the above, that conditions for imposing penalties

by reason of a violation of Section 108 of the General Penal

Code, which is to be construed in the light of the fundamental

principle of Icelandic constitutional law relating to freedom

of expression in speech and writing, are not fulfilled.

According to the above I consider that the defendant should be

acquitted of the charges of the prosecution authority, and

that all costs of the case in the District Court as well as in

the Supreme Court should be paid by the State Treasury, including

the fees of the defendant's appointed counsel before the Supreme

Court."

B. Relevant domestic legislation

40. Article 72 of the Icelandic Constitution no. 33, of 17 June

1944, states the following:

(translation)

"Every person has the right of expressing his thoughts in

print. However, he may be held responsible for them in court.

Censorship or other limitations of the freedom of the press

may never be imposed."

41. Apart from certain general legal provisions on defamation a

special provision on the matter is found in Chapter XII, Section 108

of the Penal Code which reads as follows:

(translation)

"Whoever vituperates or otherwise insults a public servant in

words or actions or makes defamatory allegations against or

about him when discharging his duty, or on account of the

discharge of his duty, shall be fined, confined or imprisoned

for up to three years. An allegation, even if proven, brings fines

if brought forth in an impudent manner."

42. The Icelandic Constitution contains no provisions on the legal

position of an accused person or on the procedure in criminal

litigation against him, which can be deemed relevant to the

applicant's case.

43. The law on criminal procedure relevant for the present case is

the Code of Criminal Procedure, Law no. 74 of 21 August 1974 (CCP).

According to Section 20 of the CCP authority of prosecution is vested

in the public prosecutor. He is assisted by the assistant public

prosecutor, by prosecutors and by his deputies who are all subject to

the public prosecutor's orders. According to Section 21 of the CCP

the public prosecutor determines how the investigation in criminal

cases is to be conducted and directs and supervises it. He brings

criminal action, decides on the appeal of criminal cases and

represents the prosecution in court as the CCP further provides.

44. Provisions on the filing of a criminal case and its prosecution

in the District Court are found in Chapters XIV and XV of the CCP

(Sections 112 to 138). According to Section 115 the public prosecutor

brings criminal action by an indictment in writing, specifying against

whom and in what court of law the case will be filed, what the alleged

offence is and what claims are made by the prosecution. The

indictment is sent to the court in question, with the case documents,

and the person in charge, in Reykjavík the Chief Judge of the Criminal

Court of Reykjavík, assigns the case to a certain judge who writes on

the indictment a statement specifying when the action will be brought.

The indictment is then served on the defendant. According to Sections

121 and 122 of the CCP the judge exhibits the indictment and other

documents when the case is filed and makes them available to the

defendant. If the defendant at this stage admits having committed the

alleged offence the case will be adjudged there and then. If not, the

defendant is to be afforded the opportunity to bring forth evidence

and to present a defence, in writing or orally, with the assistance of

counsel as the case may be.

45. The part played by the public prosecutor in the procedure in

other respects, when the defendant does not confess to the alleged

offence, is determined by Section 130 of the CCP which states that a

case is subject to prosecution and defence, i.e. with the attendance of

the prosecuting authority in court, if the punishment of the offence

may exceed eight years' imprisonment, if issues of law or fact justify

such procedure and punishment of the offence may exceed five years'

imprisonment, if the case involves exceptionally important issues, or

if its conclusion otherwise is of great public significance. If a case

is not subject to prosecution and defence according to these rules the

procedure is governed by Sections 123 to 129 of the CCP. The defendant's

case is then presented before the judge, and the prosecuting authority

does not make an appearance in court, unless the public prosecutor so

decides. If the prosecution does not make an appearance its interests

are not actively protected.

46. According to Chapter X, Section 75 of the CCP the judge shall

on his own accord and independently investigate all facts of the case,

irrespective of whether the police has investigated them and submitted

reports on them previously, and irrespective of whether or not they

relate to the defendant's guilt or innocence, or to mitigating or

aggravating circumstances. When this investigation has been completed

and when evidence collected by the defendant or his counsel has been

submitted, with a defence in writing, the District Court judge

adjudges the case on the basis of the available documents and the

claims made by the prosecuting authority and the defendant.

47. Section 177 of the CCP provides that when judgment in a

criminal case has been rendered the defendant shall be asked, when the

judgment is served, whether he appeals against the judgment to the

Supreme Court of Iceland. Criminal cases which have been appealed must

always be prosecuted and defended orally before the Supreme Court, even

if the provisions described above did not require the public prosecutor

to make an appearance in the District Court. The Supreme Court thus

adjudges issues of fact and law as well as the question of sanctions as

the appeal may require. Before the Supreme Court a motion may also be

made for voidance of the District Court procedure in its entirety or of

the judgment only, and thus the case would be subject to renewed

proceedings in the lower instance, partially or totally.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

48. The Commission has declared admissible

a) the complaint concerning the absence of the public prosecutor

during the applicant's trial, and

b) the complaint concerning the interference with the applicant's

freedom of expression.

B. Points at issue

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

- whether or not the applicant received a fair trial by an

impartial tribunal as secured by Article 6 para. 1 (Art. 6-1) of the

Convention despite the absence of the public prosecutor at certain

court sessions during the applicant's trial, and

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

defamation of character constituted a violation of his right to

freedom of expression as protected by Article 10 (Art. 10) of the Convention.

C. Article 6 para. 1 (Art. 6-1) of the Convention

50. Article 6 para. 1 (Art. 6-1) of the Convention reads, insofar

as relevant to the present case, as follows:

"In the determination of ... any criminal charge against

him, everyone is entitled to a fair hearing ... by an ...

impartial tribunal ..."

51. As regards the absence of the public prosecutor during the

trial the Commission recalls (para. 45 above) that the part played by

him in the criminal proceedings is governed by Sections 123-130 of the

CCP.

52. According to Section 130 of the CCP the attendance of the

prosecutor is required if the punishment of the offence may exceed

eight years' imprisonment, if issues of law or fact justify such

procedure and punishment of the offence may exceed five years'

imprisonment, if the case involves exceptionally important issues, or

if its conclusion otherwise is of great public significance. If a case

is not subject to prosecution and defence according to these rules the

procedure is governed by Sections 123 to 129 of the CCP. The

defendant's case is then presented before the judge, and the

prosecuting authority does not make an appearance in court, unless the

public prosecutor so decides. If the prosecution does not make an

appearance its interests are not actively protected.

53. According to Chapter X, Section 75 of the CCP the judge shall