THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 76682/01 by P4 RADIO HELE NORGE ASA against Norway

The European Court of Human Rights (Third Section), sitting on 6 May 2003 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja , judges , and Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 23 October 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, P4 Radio Hele Norge ASA (hereinafter referred to as P4 ), is a radio broadcasting company established in Norway. The applicant company is represented before the Court by Mr. Kyrre Eggen, a lawyer practising in Oslo .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 5 March 2001 P4 applied for authorisation to radiobroadcast, in whole or in part, the main hearing ( hovedforhandling ) in a major criminal trial concerning charges against four persons of triple murder, the so-called Orderud case, scheduled to take place before the Nes District Court ( herredsrett ) as from 18 April 2001. According to the applicant, this was probably the most spectacular and media-focused criminal case in Norwegian history. The case involved a son and his wife, the wife’s half-sister and a friend of the latter, who were charged with the murder of the son’s parents and sister, committed in a particularly brutal manner.

The district court judge ( sorenskriveren ), who received the application on 26 March 2001, replied by fax:

“APPLICATION FOR BROADCASTING

The Orderud case

Hereby rejected

Nobody is granted such permission”

The above decision was taken under section 131A (in its version as applicable at the relevant time) of the Administration of Courts Act 1915 ( domstolloven ).

P4 appealed against this decision to the Eidsivating High Court ( lagmannsrett ) and requested it to quash the District Court’s refusal to broadcast and to give a new decision. The applicant maintained that there was no justification for refusing radio broadcasting from the lawyers’ opening statements and closing arguments and from the delivery of verdict.

On 4 April 2001 the High Court dismissed ( avviste ) the appeal. In so far the procedure was concerned, it found no error which warranted setting aside the refusal. Regarding the substance of the decision, it held that this was a matter which by its very nature could not form the subject of an appeal ( uangripelig ). The High Court added incidentally that, notwithstanding this limitation on its own jurisdiction, it did not find that the disputed refusal conflicted with either the Convention provisions concerning the public character of judicial proceedings or those on freedom of expression.

On 23 April 2001 the Appeals Selection Committee of the Supreme Court unanimously rejected an appeal by P4 against the High Court’s decision. The Committee’s reasoning could be summarised as follows.

The Committee noted the absence, in section 131 (incorporating the provision of section 131A according to an amendment in 1999, which had not yet entered into force) of the Administration of Court’s Act 1915, of an express provision on the right to appeal against a refusal to broadcast, unlike sections 129 and 130 concerning respectively prohibition on reporting from judicial proceedings ( referatforbud ) and publication of judicial decisions. This suggested that section 131 decisions were not intended to be open to appeal. However, the Committee did not find it necessary to consider the applicant’s argument that a right of appeal would follow from Article 377 of the Code of Criminal Procedure ( straffeprosessloven ), since such a right could in any event follow from the fact that it had been claimed that a Convention right had been violated. In this connection the Committee mentioned the provisions of the Human Rights Act on the precedence of international human rights conventions over domestic law and Article 13 of the Convention on the right to an effective remedy for “arguable claims” of violation. The Committee noted a decision by the former Commission ( Atkin and Others v. the United Kingdom , application no. 13366), which concerned complaints by two journalist under Articles 10 and 13 of the Convention about judicial orders to prohibit reporting and to hear a case in camera , rejected as manifestly ill-founded. It was found that the interference was justified for the purposes of Article 10 § 2 and that, absent an arguable claim of violation, Article 13 did not apply. The Committee further observed that the “arguable claim” criterion had been criticised in legal theory and pointed out that the condition for lodging an appeal under Norwegian procedural law was that the appellant’s claim of violation did not appear entirely unfounded.

As regards the decision under challenge, the Committee, noting that the High Court had dismissed the appeal on jurisdictional ground, quoted its findings on the merits and upheld those findings. As regards the latter aspect, the Committee observed:

“The Committee agrees with what has been stated by the High Court and points to the fact that the principle of publicity in Article 6 § 1 is to ensure democratic control of the courts, not the right of the public to receive information, and that the principle is preserved by the provisions on public hearing and the freedom to report in ... the Administration of the Courts Act. The Committee cannot see that the prohibition in section 131A, first paragraph, of the Act on, inter alia , recording for radio transmission from the proceedings in a criminal case infringes the right to receive and impart information under Article 10 of the Convention. It is recalled that the media are not excluded from, or imposed a duty of silence about, the proceedings. The Committee finds no support in the Court’s or the [former] Commission’s case-law for interpreting the right to freedom of expression to mean that there is a right to record from criminal proceedings with a view to radio - or television broadcasting. At last, it should be noted that, under section 131A, second paragraph, a derogation from the prohibition in the first paragraph may be made during the main hearing where there are special reasons and after having heard the views of the parties.”

In the meantime, on 18 April 2001 the trial started before the District Court. It was held in open court. Because of the great media interest in the case and since the hearing room was too small to host both members of the ordinary public and media representatives, special arrangements were made enabling the press to follow the trial at a press centre, set up in a sports hall, to which sound and picture were transmitted live and shown on a television screen.

B. Relevant domestic law

Section 131A, as in force at the material time, of the Administration of Courts Act 1915 ( domstolloven ) provided:

“During oral proceedings in a criminal case, photographing, filming and radio - or television recordings are prohibited. It is also prohibited to take photographs or make recordings of the accused or the convicted on his or her way to, or from, the hearing or when he or she is staying inside the building in which the hearing takes place, without his or her consent.

If there are special reasons for doing so, the court may in the course of the proceedings make an exception from the [above] prohibition if it can be assumed that it would not unduly affect the examination of the case and no other reasons militate decisively against doing so. Before authorisation is given the parties should have an opportunity to express their views.”

Article 377 of the Code of Criminal Procedure ( straffeprosessloven ) reads:

“An interlocutory appeal may be brought against a court order or decision by any person who is affected thereby unless it may form the subject of an appeal proper or may serve as a ground for such an appeal by the said person, or by reason of its nature or a specific statutory provision is unchallengable.”

COMPLAINTS

The applicant, P4 , complained that the District Court’s refusal to grant its application for radio broadcasting directly from the court hearing room violated Article 10 of the Convention. P4 further alleged a breach of Article 13 on account of the absence of an effective remedy under domestic law against this refusal.

THE LAW

1 . The applicant radio company, P4 , alleged a violation of Article 10 of the Convention, which reads:

“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...

A. The applicant’s submissions to the Court

The applicant, P4 , complained that there had been an unjustified interference with its freedom to impart information from the Orderud proceedings by the medium of its choice, namely radio broadcasting. In so far as the applicant was refused to radio broadcast from the lawyers’ opening statements and closing arguments and the court’s verdict, there had been a violation of Article 10 of the Convention.

The applicant maintained that in cases such as the Orderud case, where the public’s interest was so extensive that it was not possible to provide sufficient space in the court room for everyone interested to attend, the second best means for securing the public’s right to receive information was to broadcast what happened in open court. Thus, it was not only the applicant’s freedom of speech but also the public’s right to receive information which was at stake. The Orderud case was undoubtedly of serious public concern and the public had a legitimate interest in receiving information about the proceedings, which should prevail unless there were weighty reasons. The right of the public to be informed was not properly or optimally satisfied through press reports since such reports necessarily contain only abstracts and would moreover be coloured by the journalists’ subjective accounts of what took place. Radio broadcasting would have made it possible to secure the public more comprehensive and unbiased reports enabling the people to form their own opinion.

The applicant further submitted that, in cases such as the present one, there were three types of reasons that could justify a refusal to radiobroadcast: (1) the need to ensure that the presence of the media did not inhibit the presentation of the evidence; (2) the need to prevent unnecessary disturbance and (3) the need to protect the privacy of persons involved. However, none of these considerations could justify refusing P4’s application to radio broadcast from the lawyers’ opening statements and closing arguments or from the court’s verdict.

Furthermore, the applicant argued, anyone present in the court room was permitted to take stenographic notes from the proceedings and to publish this material on the Internet, which was done. Moreover, both sound and pictures from the court room were transmitted to the media centre. In principle, it would have been possible for P4 to retransmit the sound from the centre, without violating section 131A of the Administration of Courts Act. Against this background it seemed somewhat illogical to reject P4 ’s application for radio broadcasting parts of the proceedings.

B. The Court’s assessment

The Court observes from the outset that the applicant radio station complained essentially about the fact that it was not allowed to record and transmit sound directly from the hearing room, which restricted its choices as to the means of imparting information. The Court will proceed on the assumption that, to a degree, the impugned restriction on radio transmission entailed an interference with the applicant’s right to freedom of expression as guaranteed by the first paragraph of Article 10, which applies not only to the content of information but also to the means of transmission or reception (see Autronic AG v. Switzerland , judgment of 22 May 1990, Series A no. 178, p. 23, § 47).

As to the question whether the interference was justified under the second paragraph of Article 10, the Court is satisfied that the measure was prescribed by law, namely section 131A (as applicable at the material time) of the Administration of Courts Act 1915, and pursued the legitimate aim of protecting “the reputation or rights of others” and “maintaining the authority and impartiality of the judiciary”. It remains to be considered whether the restriction was necessary in a democratic society for the achievement of one of the aforesaid aims.

By way of a preliminary observation, the Court notes that the impugned measure related to a request by the applicant to radio-broadcast the proceedings in whole or in part. It was only on appeal that the applicant specified what parts, namely the lawyers’ opening statements and closing arguments and from the District Court’s verdict, could not be restricted. For the reasons stated below, the Court sees no need to make a detailed assessment of the necessity of prohibiting radio-broadcasting with respect to each part of the trial hearing but considers that the matter can be disposed of under a global assessment.

In the first place, the Court observes that there seems to be no common ground between the domestic systems in the Contracting States to the effect that live transmission, be it by radio or television, is regarded as a vital means for the press of imparting information and ideas on judicial proceedings. It is not unusual that hearing rooms of domestic courts in the Contracting States are designed in a particular way so as to take into account, not only the need to secure transparency in the administration of justice, but also the need to avoid that the conduct of the proceedings be disturbed or influenced by the presence of members of the public in the hearing room. Depending on the circumstances, live broadcasting of sound and pictures from a court hearing room may alter its characteristics, generate additional pressure on those involved in the trial and, even, unduly influence the manner in which they behave and hence prejudice the fair administration of justice. Furthermore, whereas live broadcasting represents the advantage of making it possible for the public at large to listen to and observe court hearings, it will normally include an element of journalistic choice and filtering, albeit different from that of reporting by the written media. The national authorities, in particular the courts, after hearing the views of the parties, are better placed than the European Court in assessing whether live broadcasting in a given case may be prejudicial to the fair administration of justice.

In the light of the above, the Contracting States must enjoy a wide margin of appreciation in regulating the freedom of the press to transmit court hearings live. The Court does not consider that a legal presumption on the national level against allowing live transmission, such as that contained in section 131A of the Administration of Courts Act, in itself raises an issue of failure to comply with Article 10 of the Convention.

The Court is further satisfied that the manner of application of this national rule to the circumstances of the present case was supported by relevant and sufficient reasons and could reasonably be considered proportionate to the legitimate aims pursued. In this connection, the Court notes that, while the hearing in question concerned charges of particularly heinous crimes that had occurred in a family context, it was held in open court, allowing members of the public to attend and to report to the outside on what they observed. The impugned restriction applied to the media as a whole. In order to cater for the very broad media interest in the case and to overcome space shortage in the hearing room, additional arrangements had been made for live transmission of picture and sound to a press hall nearby, where the trial could be followed by the press on a non-discriminatory basis.

In sum, the Court finds nothing to indicate that the competent national authorities transgressed their margin of appreciation in refusing radio broadcasting directly from the District Court’s hearing room.

The Court concludes that this part of the application discloses no appearance of a violation of Article 10 of the Convention. It follows that it must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2 . The applicant radio company further complained that it had not been afforded an effective remedy as guaranteed by Article 13 of the Convention with respect to its arguable claim of violation of Article 10 of the Convention. Article 13 reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The applicant maintained that, although three national courts had dealt with its Article 10 claim, neither of these had carried out a balancing of the conflicting interests as required by the necessity test under this provision. The District Court had dismissed the request without giving any reasons, the High Court had only made a brief obiter statement on Convention compliance, which the Appeals Selection Committee of the Supreme Court had simply endorsed while adding a few observations of its own. Admittedly, the Committee interpreted Article 377 of the Code of Criminal Procedure in the light of Article 13 of the Convention and apparently accepted that a decision of the kind at issue could be overturned provided that there was an arguable claim. However, it seemingly did not find this to be the case.

The Court reiterates that, according to its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right. Having regard to its considerations above under Article 10 of the Convention, the Court does not find that the applicant radio station had an arguable claim for the purposes of Article 13, which therefore does not apply (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).

Even assuming that Article 13 applied, it should be recalled that this provision cannot be relied on as affording a right of appeal from an inferior court to a superior court (see S. and Others v. the United Kingdom , Commission decision of 4 July 1988, Decisions and Reports (DR) 56, p. 268, Callaghan and Others v. the United Kingdom , Commission decision of 9 May 1989, DR 60, p. 296).

It may be observed incidentally that, despite any limitations that applied to the appellate courts’ jurisdiction in reviewing the merits of the District Court’s refusal, hence the substance of the applicant’s Article 10 claim, and in granting appropriate relief, his claim that the refusal was incompatible with Article 10 was considered both by the High Court and the Appeals Selection Committee of the Supreme Court, which answered the question in the negative.

Finally, the Court notes that the applicant did not invoke Article 6 of the Convention and sees no need to examine the matter under this provision of its own motion.

It follows that this part of the application also is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court by a majority

Declares the application inadmissible.

Mark Villiger Georg R ess              Deputy Registrar President