B. v. DENMARK
Doc ref: 11508/85 • ECHR ID: 001-45406
Document date: July 16, 1987
- Inbound citations: 7
- •
- Cited paragraphs: 2
- •
- Outbound citations: 0
European Commission of Human Rights
Application No. 11508/85
B
against
DENMARK
REPORT OF THE COMMISSION
(adopted on 16 July 1987)
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 facts of the case
(paras. 16 - 23) ................................... 3
B. Relevant domestic law
(paras. 24 - 26) ................................... 6
a) The Danish Constitution
(paras. 24 - 25) ................................ 6
b) The Greenlandic Penal Code
(para. 26) ...................................... 6
III. SUBMISSIONS OF THE PARTIES
(paras. 27 - 56) ................................... 8
A. The applicant
(paras. 28 - 38) ................................... 8
B. The Government
(paras. 39 - 56) ................................... 9
IV. OPINION OF THE COMMISSION
(paras. 57 - 75) ................................... 13
A. Point at issue
(para. 57) ......................................... 13
B. Article 10 of the Convention
(paras. 58 - 75) ................................... 13
- ii -
Page
Concurring opinion of Mr. Trechsel ......................... 17
Dissenting opinion of Mr. Ermacora ......................... 18
APPENDIX I History of the proceedings before
the Commission ......................... 19
APPENDIX II Decision on the admissibility of
the application ........................ 20
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 1919. He is a
precious stone cutter by profession and resides at Narssaq, Greenland.
Before the Commission he is represented by Mr. Jan Krøyer, Nuuk,
Greenland.
3. The Government of Denmark are represented by their Agent,
Mr. Tyge Lehmann, Ministry of Foreign affairs.
4. The case is related to the introduction by the local
government of Greenland of taxation of Danish nationals working on
American bases in Greenland. When the applicant learned about a court
judgment upholding this measure he published an article in which he
criticised the court. Due to the publication of this article,
criminal proceedings were instituted against the applicant for
defamation of character and he was subsequently found guilty of the
charge brought against him and sentenced to pay a fine. The applicant
considers that this amounts to an interference with his right to
freedom of expression which is not justified for any of the reasons
set out in Article 10 para. 2 of the Convention.
B. The proceedings
5. The application was introduced on 22 March 1985 and registered
on 29 April 1985. The Commission considered the case on 9 October
1985 and decided to give notice of the application to the respondent
Government in accordance with Rule 42, para. 2 (b) of its Rules of
Procedure and to invite them to present before 20 December 1985 their
observations in writing on the admissibility and merits of the
application.
6. The Government's observations were dated 20 December 1985 and
the applicant's observations in reply were dated 4 April 1986.
7. Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to the applicant on 14 March 1986.
8. The Commission declared the applicant's above complaint
admissible on 17 July 1986.
9. The parties were then invited to submit any additional
observations on the merits of the case which they wished to make. The
Government submitted additional observations on 10 February 1987, a
copy of which was transmitted to the applicant. No further
observations were received from the applicant.
10. After declaring the case admissible, the Commission, acting
in accordance with Article 28 (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 22 July 1986 and 15 January 1987. 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. J. A. FROWEIN, Acting President
C. A. NØRGAARD
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
M. F. MARTINEZ
12. The text of this Report was adopted on 16 July 1987 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 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.
14. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
15. The full text of the pleadings of the parties, together with
the documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular facts of the case
16. This case originates from the introduction of taxation by the
Greenlandic local government of Danish nationals working on American
bases in Greenland. Since these persons had no right to vote in
Greenland at that time they took the local government's decisions on
taxation to court. On 28 January 1981 the case was heard in the High
Court of Greenland (Grønlands Landsret) sitting with one professional
judge and two lay judges who were both employed as civil servants in
the local government. The government won the case and the judgment
was subsequently upheld by the High Court for Eastern Denmark (Østre
Landsret) on 8 September 1983.
17. When the applicant learned about the judgment of the High
Court of Greenland he wrote an article concerning the matter which was
published in a magazine called "Grønland Dansk" in August 1982. In
the article the applicant pointed out inter alia that, in his
opinion, the High Court of Greenland was disqualified according to
Section 62 of the Danish Constitution since the two lay judges were
both employed by the local government. The applicant questioned the
lay judges' power and possibilities of deciding impartially in a case
against their employer. The article included the following passage:
"Til gengæld kunne de fleste af landstingets medlemmer afse
tid til at holde øje med, at de to grønlandske lægdommere -
der i parentes bemærket begge er ansat direkte under
hjemmestyret, som henholdsvis museumsinspektør og konsulent
i bygdeanliggender - nu også gjorde deres pligt, og det
gjorde de da. Dommerstemmerne stod to imod een i
hjemmestyrefavør, og med det dommerpanel skal der ikke megen
fantasi til at gætte, hvem der har stemt hvad."
Translation
"Most of the local government's members could on the
other hand afford the time to watch that the two Greenlandic
lay judges - who are by the way both employed directly by
the local government, as director of the museum and as
consultant in urban housing affairs - did their duty,
and that they did. The vote was two to one in favour
of the local government and with such a bench of judges
it does not require much imagination to guess who voted how."
18. As supreme authority of the Greenlandic judiciary the High
Court judge found that these remarks on the two lay judges, who had
participated in the judgment of the tax case, were of a kind which
might damage their reputation among the people and hence in general
impair confidence in the legal system. The High Court judge
consequently applied to the Greenland Chief of Police, requiring him
to institute a criminal investigation of the case. The applicant was
subsequently charged with defamation of character within the meaning
of Section 71, para. 1 of the Greenlandic Penal Code (Kriminalloven
for Grønland).
19. The case was scheduled to be heard by the District Court of
Narssaq (Narssaq Kredsret), which, as all other district courts of
Greenland, is composed exclusively of lay judges. On 27 April 1983
the applicant, however, requested that his case be transferred to
the High Court of Greenland in accordance with Chapter 1, Section 15 of
the Greenlandic Administration of Justice Act. The District Court of
Narssaq rejected the request on 4 May 1983 inter alia with
reference to the fact that the president of the High Court was
disqualified. The applicant appealed against this decision to the
High Court but the president of the High Court rejected the appeal by
letter of 27 May 1983. The applicant unsuccessfully lodged a
complaint against this decision with the Special Court of Revision
(Den særlige Klageret) in Denmark.
20. The case was thus heard by the District Court of Narssaq on
9 December 1983. Before the Court the applicant confirmed that he had
written the article in question but maintained that the lay judges,
according to Section 62 of the Danish Constitution, could not sit as
judges in the taxation case. Furthermore he maintained that the
present case brought against him violated Section 77 of the Danish
Constitution which guarantees his freedom of expression. In its
judgment of 9 December 1983 the District Court stated:
"The Court does not find that the validity of the
High Court judgment of 28 January 1981 should be considered
during the present proceedings but only whether the accused,
through the contents of his article, has insulted two of the
judges sitting in that case.
The Court finds that in the particular paragraph of the
article in question the accused has used such words that the
two judges concerned may rightly consider their honour
offended.
The right invoked by the accused to freedom of
expression in accordance with Section 77 of the Constitution
is not found to be violated since the accused is entitled,
without prior censorship, to state his views but this at
the same time subject to responsibility towards the courts.
Hereafter the Court finds the accused guilty of
having violated Section 71, para. 1 of the Greenlandic Penal
Code since the Court does not find that the accused, in
accordance with Section 71, para. 2 of the same Act, has
proved the justification of his choice of words in the
article in question."
21. The applicant was fined 2,000 Danish crowns. He appealed
against this decision to the High Court for Eastern Denmark but the
case was transmitted to the High Court of Greenland as being the
proper appeal court. The case was heard in this Court on
3 July 1984. The Court was composed of one professional judge and two
lay judges. The professional judge replaced the usual judge since he
was disqualified being the person who had started the case.
22. In its judgment pronounced the same day upholding the
District Court's judgment the High Court found it appropriate, in
respect of the judgment pronounced in 1981 concerning the tax case, to
emphasize that all three judges were in agreement on deciding in
favour of the local government. Regarding the charge brought against
the applicant the Court stated inter alia:
"Like the District Court, the High Court agrees with the
prosecution that the words of the article that the two
Greenlandic lay judges did their duty - namely as employees
in the local government to rule in favour of it - is a
serious accusation which lends itself to depreciating them
in public esteem. Proof of the accusation has not been
brought, which, however, would not have been possible since
it cannot be excluded that they would have reached the same
result, had they not been employed by the local government.
The accused will hereafter be considered guilty of having
violated Section 71, para. 1 of the Penal Code.
Finally, concerning the question of the competence
of the two lay judges, the High Court agrees with the
accused that they, as employed in leading positions by the
defendant party - notwithstanding the specific difficulties
in Greenland of upholding strict rules in regard to
competence - in accordance with what has been pointed out
by the defence, ought to have considered themselves
disqualified and thus refrained from participating in the
case and that the accused had reason to point it out.
Having regard to, on the one hand, the seriousness of the
accusation and the information about the accused's economic
situation now available - which would give grounds for a
considerable increase of the fine imposed - and, on the
other hand, the appropriateness of pointing at the
omission which occurred, in the observation of reasonable
rules of competence, the Court finds that the fine imposed
should be confirmed."
23. The applicant subsequently asked the Ministry of Justice for
leave to appeal to the Supreme Court (Højesteret). His request was
rejected on 14 March 1985.
B. Relevant domestic law
a) The Danish Constitution (Danmarks Riges Grundlov)
24. "§62. Retsplejen skal stedse holdes adskilt fra
forvaltningen. Regler herom fastsættes ved lov."
Translation
"Section 62. The administration of justice shall remain
separated from the Administration. Rules in this respect
shall be provided by law."
* * *
25. "§77. Enhver er berettiget til på tryk, i skrift og tale
at offentliggøre sine tanker, dog under ansvar for
domstolene. Censur og andre forebyggende forholdsregler kan
ingensinde påny indføres."
Translation
"Section 77. Everyone shall be entitled to make public his
views in print, in writing and in speech, provided that he
may be held responsible in a court of justice. Censorship
and other preventive measures shall never again be introduced."
b) The Greenlandic Penal Code (Kriminalloven for Grønland)
26. "§71. For ærefornærmelse dømmes den, der krænker en andens
ære ved fornærmelige ord eller handlinger eller ved at
fremsætte eller udbrede sigtelse for et forhold, der er
egnet til at nedsætte den fornærmede i medborgeres agtelse
eller i øvrigt skade ham i forholdet til andre.
Stk. 2. Ingen kan dog dømmes for en sigtelse, når dens
sandhed bevises, eller den er fremsat i god tro, og den
pågældende har været forpligtet til at udtale sig eller har
handlet til berettiget varetagelse af åbenbar almen
interesse eller af eget eller andres tarv.
Stk. 3. Den, der fremsætter en sigtelse, for hvilken
sandhedsbevis føres, kan dog dømmes, når sigtelsen ved sin
form er utilbørlig fornærmende, eller gerningsmanden ikke
har haft rimelig anledning til at fremsætte den.
Stk. 4. Er en ærefornærmende sigtelse ubeføjet, bliver der
efter den fornærmedes påstand i domsslutningen at optage en
bemærkning herom."
Translation:
"Section 71. Any person shall be liable to punishment for
defamation of character if he degrades the honour of
another person through insulting words or acts or if he
makes or disseminates an accusation which is likely to
damage the esteem in which the insulted party is held by
his fellow citizens or which may in other ways damage his
relationship with other people.
(2) However, no judgment shall be passed on anyone for an
accusation the veracity of which can be proved or if the
accusation has been made in good faith and the perpetrator
has been under an obligation to make a statement or has acted
with justification to the benefit of the common weal or his
own weal.
(3) A person making an accusation of which evidence can be
produced may nevertheless be sentenced if the wording of the
accusation is unduly insulting or if the perpetrator has had
no reasonable cause to make the accusation.
(4) Whenever a defamatory accusation is unwarranted the
insulted party may claim a note to this effect to be
included in the conclusions of the judgment."
III. SUBMISSIONS OF THE PARTIES
27. The following is a summary of the parties' main
arguments submitted on the merits at the admissibility stage
and during the examination of the merits.
A. The applicant
28. The applicant alleges a violation of his freedom of expression
under Article 10 of the Convention. He submits that in any democratic
society every citizen has certain fundamental rights of which freedom
of expression is one of the most important ones. In Denmark freedom
of expression is secured through the Danish Constitution and is
considered irrevocable although the right is subject to responsibility
towards the courts of law.
29. Regarding the request for an investigation by the police of
the case it is important to note that it was not the lay judges in
question but the High Court judge, whose honour was not at stake, who
submitted the request to the police. The two lay judges were never
interrogated by the police and it is still unclear whether they
consider their honour offended by the statements made by the
applicant.
30. The objective description of the Greenlandic court system as
submitted by the respondent Government may be true, but their
evaluation remains questionable. It is a fact that in connection with
the tax case of 1981, criticised by the applicant, procedural errors
were committed by the High Court of Greenland in that the two lay
judges, being employed by the local government, were disqualified. In
such circumstances when the public authorities commit errors they must
be prepared to accept harsh criticism, in particular in small
communities such as in Greenland.
31. In this connection it should be pointed out that the so-called
Loading citations...tax case was characterised by political undertones and followed with
great interest by the local government and the press.
32. Therefore the applicant should not be punished for publishing
his remarks since, in accordance with the Greenlandic Penal Code
Section 71, sub-section 2, they were true, as the lay judges were
disqualified, and since the applicant pointed at procedural errors and
thus obviously acted in the interest of the public.
33. When the respondent Government submit that the freedom of
expression in small local communities, as the one in Greenland, is
less far-reaching than normal due to the fact that confidence in lay
judges should be of overriding importance for the maintenance of law
and order, this is to turn things upside down. Such an argument
should on the contrary lead the courts, selecting their lay judges
from the community, to be particularly careful in order to avoid
qualification problems and conflicts of interest which follow from
that.
34. When the courts, as in the present case, neglect their duty to
resolve conflicts of interest they must accept public criticism even
where this criticism is brought forward in harsh phrases. Had the High
Court of Greenland fulfilled its duties there would have been no reason
for the applicant to publish his article and he would not have done so.
35. When the respondent Government submit that the applicant was
not barred from stating his points of view publicly this is a matter
of course since the press in Greenland is not subject to preceding
censorship. Regarding the limitations of the freedom of expression as
set out in Article 10 para. 2 of the Convention the applicant agrees
to the objective description thereof but maintains that he precisely
criticised the partiality of the judiciary, the impartiality of the
judiciary being mentioned in the second paragraph, and therefore it
appears contradictory to punish the applicant for having exceeded his
right to freedom of expression.
36. The respondent Government have submitted, regarding the
restrictions on the freedom of expression, that they move progressively
towards greater tolerance, for example in a political debate where the
persons affected normally have the possibility of remonstrating. If
this is so, it should be pointed out that the tax case was indeed
political and the remarks made by the applicant should enjoy the same
status as remarks made in a political debate where the limits are
wider than usual.
37. It is correct that the legal system in Greenland is
characterised by its special origin but the applicant's article does
not criticise the legal system as such but the neglect on behalf of
the High Court regarding the conditions for qualification.
38. Finally, it should be pointed out that instead of being
defamatory against the two disqualified lay judges the applicant's
article rather affected the High Court judge due to the procedural
error committed by him when appointing disqualified lay judges. The
High Court judge, however, has no right to protection in regard to
procedural errors committed by him during the tax case.
B. The Government
39. The point of departure in the present case is the atypical
organisation of the Greenlandic legal system which, in conformity with
the traditions of the Greenland community, consists mainly of a system
of lay courts. This system springs from the special conditions
prevailing in Greenland: time-honoured traditions, the country's vast
extension and the widely scattered settlements. Hence the Greenlandic
legal system is based on local district courts in the charge
exclusively of lay judges who discharge the task as a civic duty along
with their civilian jobs. The Greenland High Court is also dominated
by the lay element in that in every case the court is composed of one
professional judge and two lay judges. The Greenlandic legal system
functions well for all practical purposes, and the lay judges enjoy
considerable respect among the people who have great confidence in
their decisions. Any man or woman of unblemished character may be
selected to act as lay judge. They shall honourably and conscientiously
judge in accordance with what they consider right and
true under the law and the evidence of the case. This system has
always functioned satisfactorily, but it is essential for its
maintenance that the lay judges, including those who sit with a
professional judge, have the necessary authority and enjoy the same
confidence as professional judges.
40. It is a fundamental principle of Danish as well as Greenlandic
administration of justice that a judge is in duty bound to be
impartial and to be guided solely by the law and the evidence
produced. This principle applies to all persons having judicial power
in the administration of justice, i.e. professional as well as lay
judges adjudicating civil and criminal cases.
41. A decision given by a judge under the influence of
considerations other than those following from the law or the evidence
produced, e.g. in deference to his employers, would thus be a manifest
neglect of duty for which the penal remedies are disciplinary
punishment under the Greenlandic Administration of Justice Act and
conviction of abuse of public authority under the Greenlandic Penal
Code.
42. The rules relating to disqualification of judges are laid down
in the Greenlandic Administration of Justice Act. The provisions
there do not explicitly mention employee/employer relationship between
judges and parties as being a ground for disqualification. However,
the Government agree with the High Court of Greenland that the two lay
judges to whom the applicant referred in his statement, as employed
in leading positions by the defendant party, should have refrained
from sitting because this relationship might raise doubt as to their
impartiality.
43. Section 71, sub-section 2, of the Greenlandic Penal Code
provides that judgment shall not be passed on any person for an
accusation, the truth of which is susceptible of proof, or if the
person who made the accusation was in good faith and under an
obligation to make a statement or acted with justification to the
obvious benefit of the public weal or to safeguard his own interests
or the interests of others.
44. While no objection can be raised in the present case against
the fact that the applicant publicly criticised the disqualification
of the two Greenlandic lay judges as an objectively ascertainable fact
- which was indeed confirmed subsequently in the judgment pronounced
on 3 July 1984 by the High Court of Greenland - it is clearly beyond
the limits of freedom of speech for the applicant to exploit this
aspect in order to contend - without producing evidence thereof - that
the local government of Greenland influenced the lay judges and that
the latter heeded the local government when pronouncing their
judgment. This is the gist of the matter and the reason why the
prosecuting authority found that this sort of claim - not least in a
local community like that existing in Greenland where confidence in
lay judges is of overriding importance for the maintenance of law and
order - must be considered as defamatory.
45. The applicant's statement that the lay judges "did their duty"
- namely as employees of the local government to rule in favour of it
- is therefore not only an accusation of neglect of duty but also an
accusation of committal of an indictable offence. There can be no
doubt that an accusation of this kind lends itself to depreciating the
persons in question in public esteem and impairing confidence in the
judiciary.
46. The authority of and confidence in the courts of justice are a
sine qua non for a society basing itself on the rule of law. It
is thus a precondition for confidence in the courts that the very risk
of partiality is eliminated. Hence, the rules relating to competence
prescribe that a professional or lay judge shall leave his seat on the
bench in certain, specified situations even though there be no ground
to assume that the judge in the specific situation would act under the
influence of non-objective considerations.
47. If a judge is disqualified under the relevant provisions of
the Administration of Justice Act this does not mean that de facto
he has not been impartial. Consequently, the fact that the lay
judges sitting in the taxation case were disqualified cannot be
adduced as proof of partiality.
48. Accordingly, whilst it was understandable and above any
reproach that the applicant alleged that the two lay judges were
disqualified, he had no justifiable reasons to make the accusations in
question after judgment in the tax case had been pronounced and
appealed against.
49. In Danish law freedom of speech is guaranteed by Section 77 of
the Danish Constitution and in the present case neither the courts nor
any other public authority prevented or obstructed the publication of
the applicant's viewpoints.
50. Article 10 para. 2 of the Convention provides that freedom of
speech may be subjected to such restrictions and penalties as are
prescribed by law and are necessary in a democratic society, inter
alia for the protection of the reputation of others or for
maintaining the authority and impartiality of the judiciary.
51. The limit to freedom of speech depends on time, space and
circumstances attendant upon the execution of freedom of speech.
Undoubtedly, as time passes, the limit to freedom of speech moves
progressively towards greater tolerance and in a political debate, for
example, in which the affected person will normally have the
possibility of remonstrating, the limits to freedom of speech will be
more flexible than if the comments were made outside a political
context. Furthermore, the limit to freedom of speech may depend on
the size of the local community in which an utterance or a statement
is made or on the isolation of the community in question.
52. It is also appropriate to underline that considerations for
conduct of a free public debate might lead to acceptance of greater
outspokenness in the debate when the criticism is directed against
persons who e.g. themselves take part in the public debate or
voluntarily discharge public functions, e.g. as politically elected
members of governing bodies. But this does not apply to lay judges in
Greenland who do not discharge their judicial functions voluntarily
but as a civic duty. In such situations there is special reason to
protect these persons against accusations of having committed a
criminal offence and, in relation to them, there should not be a
special margin for what they should tolerate being accused of in the
discharge of their civic duty. It cannot therefore be claimed with
justification that the decisions taken by the courts exceeded the
discretion which according to Article 10 para. 2 of the Convention
must be vested in the national authorities.
53. Finally, the Government refer to the case of Lingens v.
Austria (Eur. Court H.R., Lingens judgment of 8 July 1986, Series A
no. 103). In its decision the Court attached importance to the
following factors: that the observations in question were
value-judgments the truth of which is not susceptible of proof, that a
free political debate is the very core of the concept of a democratic
society, that whilst the press must not overstep the bounds set for
the protection of the reputation or rights of others, it is incumbent
on it to impart information and ideas on political topics, and that,
in the Court's opinion, the limits to acceptable criticism are
narrower when it comes to private individuals than to politicians.
54. In the opinion of the Government the Lingens case differs from
the instant case on quite decisive points. The background to the
broader limits set for political debate is that politicians often
desire and provoke a debate and, in consequence, must tolerate such
freedom in use of language as follows from that.
55. In the instant case the aggrieved parties are lay judges, not
politicians. Consequently, they are debarred from participating in
public debate on pending cases and thereby from refuting accusations
against them. Furthermore, the applicant's observations were not
value-judgments but accusations of committal of indictable offences
directed against persons whose reputation society has a special
interest in protecting.
56. Considering that the applicant's observations contained grave
accusations and were directed against judges, and taking into account
the special conditions which prevail in Greenland, the Government
submit that the interference with the applicant's freedom of
expression, which indisputably took place, was necessary in a
democratic society in order to safeguard the authority of the
judiciary and to protect the individual, and, furthermore, that
the interference was proportionate to the aim pursued.
IV. OPINION OF THE COMMISSION
A. Point at issue
57. The only point at issue in the present case is the question
whether or not the restriction of the applicant's freedom of
expression by his conviction for defamation of character constituted
a violation of Article 10 of the Convention.
B. Article 10 of the Convention
58. Article 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. ...
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."
59. It is not disputed in the present case that there was an
interference by a public authority with the exercise of the
applicant's freedom of expression. This interference resulted from
the applicant's conviction for defamation of character by the District
Court of Narssaq on 9 December 1983, which conviction was upheld by
the High Court of Greenland on 3 July 1984. Such interference
contravenes the Convention if it does not satisfy the requirements of
the second paragraph of Article 10. The Commission must accordingly
examine whether the interference was "prescribed by law", had an aim
that was legitimate and was "necessary in a democratic society" for
the aforesaid aim (cf. Eur. Court H.R., Lingens judgment of 8 July
1986, Series A No. 103).
60. As regards the two first points the Commission finds that the
applicant's conviction was prescribed by law in that it was based on
Section 71 of the Greenlandic Penal Code. The restriction moreover
pursued a legitimate aim covered by Article 10 para. 2 of the
Convention, namely, the protection of the reputation of others and the
aim of maintaining the authority of the judiciary. What remains to be
examined is accordingly the question whether the restriction
complained of was necessary in a democratic society as required by
Article 10 para. 2.
61. The adjective "necessary", within the meaning of Article 10
para. 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 legislation and the decisions applying
it, even those given by an independent court (cf. above-mentioned
Lingens judgment p. 25, para. 39).
62. Accordingly, while it is not the task of the Commission to
pronounce itself on an interpretation of domestic legislation as
adopted by the domestic courts or otherwise take the place of the
competent national courts, it is called upon to review under Article
10 of the Convention the decisions they delivered (cf. notably Eur.
Court H.R., Handyside judgment of 7 December 1976, Series A No. 24
and Sunday Times judgment of 26 April 1979, Series A No. 30).
63. The Commission recalls, as the European Court of Human
Rights has underlined, that in exercising their supervisory functions
the Convention organs must pay particular attention to the principles
characterising a "democratic society" and the fundamental role which
freedom of expression has to fulfil in such a society. In the
above-mentioned Handyside judgment, the Court stated as follows:
"Freedom of expression constitutes one of the essential
foundations of such a society, one of the basic conditions
for its progress and for the development of every man.
Subject to paragraph 2 of Article 10, 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 the State or any sector of the population. Such are
the demands of that pluralism, tolerance and broadmindedness
without which there is no 'democratic society'" (p. 23, para. 49).
64. The Commission furthermore observes that in formulating the
exceptions where interferences with the right to freedom of expression
are justified, Article 10 para. 2 refers to necessity in a
democratic society. For the citizen to keep a critical control of
the exercise of public power it is essential that particularly strict
limits be imposed on interferences with the publication of opinions
which refer to activities of public authorities, including the
judiciary.
65. In order to assess, in the light of these principles, whether
there existed such a pressing social need as to justify the
interference with the applicant's freedom of expression the Commission
must look at the prohibited statement in its proper context and in the
light of the particular circumstances of the case.
66. In this respect the Commission recalls that the applicant's
article appeared in the magazine "Grønland Dansk" after the judgment
of the High Court of Greenland of 18 January 1981 in a case in which
two lay judges participated who were both employed as civil servants
in the local government, which was the defendant party in that case.
The Commission also recalls the applicant's statement which set out
the following (in translation):
"Most of the local government's members could on the other
hand afford the time to watch that the two Greenlandic lay
judges - who are by the way both employed directly by the
local government, as director of the museum and as consultant
in urban housing affairs - did their duty, and that they did.
The vote was two to one in favour of the local government and
with such a bench of judges it does not require much
imagination to guess who voted how."
67. In this text two elements of criticism can be distinguished.
First, there is criticism with regard to the fact that the court was
not composed in such a way as to assure its impartiality; second,
there is a suggestion that the two lay judges cast their votes
rather as employees of the local government than as independent and
impartial judges.
68. As far as the first aspect of the criticism is concerned, it
does not raise any issue as it was not invoked as a basis for the
interference. The question therefore remains, whether the
interference was "necessary" for the protection of the reputation of
the two lay judges.
69. The Government have pointed out that it was clearly beyond the
limits of freedom of speech for the applicant to exploit the situation
contending - without providing evidence thereof - that the local
government of Greenland influenced the lay judges and that the latter
heeded the local government when pronouncing their judgment. The
applicant has on the other hand maintained that when the courts, as
in the present case, neglect their duty to resolve conflicts of
interest, they must accept public criticism even where this criticism
is brought forward in harsh phrases. The applicant maintains that his
criticism was justified and since he pointed at procedural errors he
obviously acted in the interest of the public.
70. The Commission has found no indications permitting the
assumption that it was the intention of the applicant to attack the
two lay judges personally. It also refers to the fact that the
criminal prosecution of the applicant was not started at the
initiative of these lay judges, but that it was the High Court judge
who required the Chief of Police of Greenland to initiate criminal
proceedings.
71. In matters of public interest involving the functioning of the
public administration, including the judiciary, the test of necessity
in Article 10 para. 2 of the Convention must be a particularly strict
one. It follows that even if the article in question could be
interpreted as an attack on the integrity or reputation of the two lay
judges, the general interest in allowing a public debate about the
functioning of the judiciary weighs more heavily than the interest of
the two judges is being protected against criticism of the kind
expressed in the applicant's article.
"Most of the local government's members could on the other
hand afford the time to watch that the two Greenlandic lay
judges - who are by the way both employed directly by the
local government, as director of the museum and as
consultant in urban housing affiars - did their duty, and
that they did. The vote was two to one in favour of the
local government and with such a bench of judges it does not
require much imagination to guess who voted how."
67. In this text two elements of criticism can be distinguished.
First there is criticism with regard to the fact that the court was
not composed in such a way as to assure its impartiality; second,
there is a suggestion that the two lay judges cast their votes rather
as employees of the local government than as independent and impartial judges.
68. As far as the first aspect of the criticism is concerned, it
does not raise any issue as it was not invoked as a basis for the
interference. The question therefore remains, whether the
interference was "necessary" for the protection of the reputation of
the two lay judges.
69. The Government mhave pointed outthat it was clearly beyond the
limits of freedom of speech for the applicant to exploit the situation
contending - without providing evidence thereof - that the local
government of Greenland influenced the lay judges and that the latter
heeded the local government when pronouncing their judgment. The
applicant has on the other hand maintained that when the courts, as in
the present case, neglect their duty to resolve conflicts of
interest, they must accept public criticism even where this criticism
is brought forward in harsh phrases. The applicant maintains that his
criticism was justified and since he pointed at procedural errors he
obviously acted in the interest of the public.
70. The Commission has found no indicationis permitting the
assumption that it was the intention of the applicant to attack the
two lay judges personally. It also refers to the fact that the
criminal prosecution of the applicant was not started at the
initiative of these lay judges, but that it was the High Court judge
who required the Chief of Police of Greenland to initiate criminal
proceedings.
71. In matters of public interest involving the functioning of the
public administration, including the judiciary, the test of necessity
in Article 10 para. 2 of the Conventioni must be a particularly strict
one. It follows that even if the article in question could be
interpreted as an attack on the integrity or reputation of the two lay
judges, the general interest in allowing a public debate about the
functioning of the judiciary weighs more heavily than the interest of
the two judges in being protected against criticism of the kind
expressed in the applicant's article.
72. The Commission has also taken into consideration the
observations of the respondent Government with regard to the
particular features of the Greenlandic legal system. However, it notes
that also in the eyes of the respondent Government, employees of a
party to a dispute ought not to sit as judges on that very dispute.
This fundamental element of fair justice is also anchored in Article 6
of the Convention (cf. Eur. Court H.R., Piersack judgment of 1 October
1982, Series A No. 53 and the De Cubber judgment of 26 October 1984,
Series A No. 86) and it does not lose any of its importance in a
system with lay judges.
73. As to the argument based on the aim to maintain the authority
of the judiciary which is mentioned specifically in Article 10
para. 2, the Commission is of the opinion that this provision cannot
be used as a basis for restraining criticism of the composition of a
court which is improperly constituted under the applicable rules for
the judiciary.
74. For these reasons the Commission does not find that the
interference with the applicant's right to freedom of expression
can be regarded as "necessary in a democratic society". There has
accordingly been a violation of Article 10.
Conclusion
75. The Commission concludes, by fourteen votes to one, that there
has been a violation of Article 10 of the Convention.
Secretary to the Commission Acting President of the Commission
(H. C. KRÜGER) (J. A. FROWEIN)
CONCURRING OPINION OF MR. TRECHSEL
While I am in agreement with the Commission's opinion and with
the reasoning of the Report, I would like to point out a further
argument which, in my view, is relevant to the present case. If a
person agrees to act as a judge in a situation which is in clear
contradiction with a basic principle set up to safeguard the
impartiality of the court, that person cannot, at the outset, claim to
be presumed free of bias. He is not, therefore, entitled to
protection against a publication which challenges his impartiality.
DISSENTING OPINION OF MR. ERMACORA
I do not think that the punishment imposed on the applicant
for publishing an article questioning the impartiality of lay members
of a court amounts to a violation of Article 10 of the Convention.
The punishment is, in my view, justified under the second paragraph of
Article 10 in that it was necessary for maintaining the authority and
impartiality of the judiciary. I base my opinion on an interpretation
of the judgment of the Court of Human Rights in the case of Lingens v.
Austria (Eur. Court H.R., Lingens judgment of 8 July 1986, Series A
No. 103). In this case the Court stated that politicians must sustain
more criticism than others. In the present case, however, it was not
the honour of politicians which was at stake, but the authority and
impartiality of the judiciary. In this respect the judiciary must
enjoy a protection which in my opinion needs another legal approach
than in case of protection of the rights of others as set out in the
Lingens case.
&SAPPENDIX I&-
HISTORY OF PROCEEDINGS
Date Item
22 March 1985 Introduction of the application
29 April 1985 Registration of the application
Examination of admissibility
9 October 1985 Commissions deliberations and decision to
invite the Government to submit observations
on the admissibility and merits of the
application
20 December 1985 Submission of Government's observations
4 April 1986 Submission of applicant's observations
17 July 1986 Commission's deliberations and decision
to declare the application partly admissible
Examination on the merits
11 October 1986 Consideration of the state of proceedings
10 February 1987 Submission of Government's additional
obersations on the merits
7 March 1987 Consideration of the state of proceedings
8 July 1987 Commission's deliberations on the merits
16 July 1987 Commission's deliberations on the merits,
final votes and adoption of the Report