Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29188/95

by Hans Kristian PEDERSEN

against Denmark

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 April 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 September 1995

by Hans Kristian PEDERSEN against Denmark and registered on 9 November

1995 under file No. 29188/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Danish citizen, born in 1961. He resides in

Aalborg, Denmark.

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

summarised as follows.

The applicant owns a business which deals, inter alia, with the

distribution of video programmes. Due to different opinions as to the

interpretation of the Danish copyright legislation and its compliance

with EU provisions the applicant has been in dispute for years with the

Association of Danish Video Programme Distributors (Foreningen af

Danske Videogramdistributører, hereinafter called the FDV). Eventually

the applicant wrote a book called "sådan tjener man 1 milliard kr."

(How to make a billion kroner) which was published on 5 June 1992. In

the book the applicant, inter alia, criticised the FDV and its legal

representative, JS, in their methods of implementing the applicable

legislation.

On 26 June 1992 JS instituted private criminal proceedings at the

Aalborg City Court (Retten i Aalborg) against the applicant requesting

his conviction for defamation pursuant to section 267 subsections 1 and

3 of the Penal Code which read as follows:

(Translation)

"Any person who violates the personal honour of another by

offensive words or conduct or by making or spreading

accusations of an act likely to lower him in the esteem of

his fellow citizens, shall be liable to a fine or to simple

detention."

"In fixing the penalty it shall be considered an offence of

an aggravated form if the insult was made in a printed

document or in any other way likely to give it wider

circulation, or in such places or at such times as greatly

to aggravate the offensive character of the act."

JS also requested that the following passages of the book be

considered unwarranted:

(Translation)

a) "The Danish government which is headed by Poul Schlüter, a

cousin of [JS], intervene in support of Metronome Video

Aps. [JS] changes his submissions and concurs with those of

the government."

b) "For each day which goes by, the cash register in [JS's]

office rings.

The video sector in Denmark is headed by men for whom money

is decisive. The man up front is someone with political

influence, a man whom politicians and civil servants listen

to uncritically, a man who does not care about the personal

tragedies his mafia-like methods leave behind. [EVC] lost

everything and got diabetes due to the pressure which has

not stopped yet.

[JS's] law office makes a living out of terrorising video

agents. Lawsuit after lawsuit is instituted without basis

in law. [JS] and [TS] have thorough knowledge of copyright

legislation which, in connection with the principle of

negotiation, is used in a cynical way, through bluff, to

present allegations which are groundless. If it does not

work in one case, it will in the next case. Arguments,

paragraphs and explanations are turned around in order to

fit each particular case. The subject is each time an

individual who neither has the legal knowledge nor

financial means to defend himself properly."

c) "Nevertheless I cannot be quite sure. In my view [JS] is

the biggest criminal in Danish history. During 10 years of

monopoly the turnover has been at least 3 billion kroner.

In open competition the price would have been a third less.

His trick vis-à-vis [EVC] was worth more than one billion

kroner. What does it cost to arrange a little accident."

d) "... the government have given false evidence before the

EC Court in case no. 158/86, following which Danish video

programme distributors have obtained a monopoly in Denmark.

In particular I draw attention to [JS's] statements in the

High Court of Eastern Denmark."

e) "[AJ] from the Library Supervisory Board, who previously

was put under pressure by [JS]."

Finally, JS requested damages not exceeding 250,000 DKK.

On 6 January 1993 JS's Counsel requested the City Court as

follows:

(Translation)

"Today I have received from [the applicant] very extensive

documentary evidence (96 exhibits with an estimated number

of 200 pages) and having skimmed the documents I shall

suggest, pursuant to Section 341 of the Administration of

Justice Act, that the exhibits are not admitted as evidence

as none of them appears to be of relevance to the case.

...

Copy sent by fax to [the applicant]."

On 11 January 1993 the City Court announced, in a letter

addressed to JS's Counsel, the following:

(Translation)

"Referring to your letter of 6 January 1993 I hereby

declare that on the basis of the available facts I intend

to reject the documentary evidence proposed by [the

applicant] ...

...

Copy sent to [the applicant]."

The case was heard in the Aalborg City Court on 13 January 1993.

JS and the applicant were heard as well as four witnesses. Judgment was

pronounced on 16 February 1993. The applicant was found guilty

of defamation and sentenced to pay a fine of 3,000 DKK. He was ordered

also to pay 10,000 DKK in damages to JS as well as costs. Finally, the

above parts of the book were declared to be unwarranted. In its

judgment the City Court stated, inter alia, as follows:

(Translation)

"The statements mentioned under a)-d) are, due to their

contents, obviously to be considered as defamatory

accusations. The quotation under e) is, in the light of its

context and background, to be considered as an allegation

that [JS] put pressure on [AJ], as a legal representative

for the FDV, in an inappropriate manner. In these

circumstances all statements are considered to fall under

section 267, subsection 1 of the Penal Code.

...

(On the basis of the available evidence the court does not

find) that [the applicant] has presented proof which shows

that the accusations are true. Since [the applicant] cannot

be considered as having had any reasonable ground for

believing that the accusations were true, and since when

making the very grave accusations [the applicant] cannot be

considered as having acted in a justified manner in order

to protect the interest of others, the Court finds that

there is no reason ... to refrain from punishment or to

remit it."

The applicant appealed against the judgment to the High Court of

Western Denmark (Vestre Landsret). He maintained in particular that the

City Court had not taken into consideration all the documentary

evidence submitted by him and that the court had made an incorrect

evaluation of his views. Furthermore, the applicant requested the High

Court to adjourn the case pending the outcome of another case which

involved copyright legislation and which was to be brought before the

EC Court. JS objected to the adjournment maintaining, in particular,

that issues relating to copyrights were not of relevance to the outcome

of the case.

On 22 September 1993 the High Court refused the request for an

adjournment. A subsequent request to that effect was refused on

8 June 1994. On the same date the court also decided on the question

of hearing witnesses. The court refused to hear four witnesses proposed

by the applicant as, in the court's opinion, their statements would be

superfluous since the issues relating to these witnesses were

considered to be covered by the documentary evidence.

However, the court observed ex officio that due to the character

of documentary evidence submitted to the court and in expectation of

the time needed for production of evidence and arguments of parties the

one day scheduled for the hearing would not suffice. Thus, the court

decided to adjourn the case in order to schedule two whole days for the

hearing.

The hearing took place on 15 and 16 March 1995. The applicant was

not represented by counsel. The applicant submits that he was

interrupted by the presiding judge during the hearings and that he was

not given the opportunity to produce evidence fully.

The High Court gave judgment on 31 March 1995 in favour of the

defendant. The judgment reads, inter alia, as follows:(Translation)

"In determining whether or not the statements are

defamatory it is of no relevance whether [the applicant] is

right or wrong in considering that section 25 of the

Copyright Act (as the section was formulated before its

amendment on 10 June 1989) implied that video programmes,

which were released without restrictions on distribution by

the copyright holder in another Member State of the

Community, as a consequence of its release by the copyright

holder could be distributed freely in Denmark as well. In

addition, it is of no relevance whether [the applicant] is

right or wrong in assuming that, subsequent to the

amendment of the Copyright Act ... the Act could not be

interpreted, in light of the supremacy of Community Law, to

require that permission to distribute video programmes is

confined to a territory.

Notwithstanding whether [the applicant] is right in this

assumption, with regard to proving whether the accusations

are true, it must be observed that all the applicant's

statements when read in their context, must be considered

to express the view that the defendant as a lawyer

representing [FDV] for years has attempted to interfere

with [the activities of] video agents and with the issuing

of video programmes from libraries ... contrary to his

knowledge about the state of law ... . Neither with regard

to this nor with regard to other of [the applicant's]

characterisations of the defendant's conduct in the quoted

passages, has he proven that the accusations quoted are

true.

With regard, in particular, to [the applicant's] statements

in quotations a) and d) it should be observed that the

defendant's general remarks to the European Court of

Justice ... cannot be considered incompatible with the

defendant's written statements ... .

Accordingly, for these reasons and by referring to the

other part of the reasoning of the City Court, the High

Court agrees that there is no reason to refrain from

punishment ... or to remit it ... .

... ."

The applicant then made a petition to the Ministry of Justice for

leave to appeal to the Supreme Court (Højesteret) claiming, inter alia,

that he had not been given a full opportunity to produce evidence. He

did not allege that his right to freedom of expression had been

infringed. On 31 July 1995 the Ministry of Justice refused to grant the

applicant leave to appeal.

COMPLAINTS

The applicant complains, under Article 6 para. 1 of the

Convention, that in the proceedings before the national courts he was

not afforded a fair trial.

The applicant also alleges that his right to freedom of

expression under Article 10 of the Convention has been violated.

Finally, he complains that he has not had an effective remedy before

a national authority as guaranteed in Article 13 of the Convention.

THE LAW

1. The applicant claims that in the proceedings in the City Court

and the High Court he did not have a fair trial. He invokes in this

respect Article 6 (Art. 6) of the Convention which, in so far as

relevant, reads as follows:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing ... .

2. Everyone charged with a criminal offence has the

following minimum rights:

...

(b) to have adequate time and facilities for the

preparation of his defence;

... ."

In support of his allegations the applicant submits that, in the

proceedings in the national courts, he was not given full opportunity

to produce evidence and, in the High Court, he was prevented from

presenting his case in the order he had planned. In effect, this made

his defence difficult. In addition, the applicant complains that his

case was not adjourned until the European Court of Justice had decided

in a related case.

The Commission recalls that, at the outset, the admissibility of

evidence is primarily a matter for regulation by national law and, as

a general rule, it is for the national courts to assess the evidence

before them. In the light of these principles it is the task of the

Commission not to express a view as to whether the statements in

question were correctly admitted and assessed but rather to ascertain

whether the proceedings considered as a whole were fair, including the

way in which evidence was taken (Eur. Court HR, Kostovski v. the

Netherlands judgment of 20 November 1989, Series A no. 166, p. 19,

para. 39).

Furthermore, the Commission recalls that the right to a fair

hearing entails, in both civil and criminal proceedings, that everyone

who is a party to such proceedings shall have reasonable opportunity

of presenting his case to the court under conditions which do not place

him or her at a substantial disadvantage vis-à-vis his or her opponent

(see, inter alia, No. 10938/84, Dec. 9.12.86, D.R. 50, p. 98). This

principle of "equality of arms" can be based not only on Article 6

para. 1 (Art. 6-1) but also on Article 6 para. 3 (Art. 6-3) (cf. No.

8403/78, Dec. 14.12.81, D.R. 27, p. 61). However, it is not incumbent

on the national courts to admit all evidence on the accused's behalf

(cf. mutatis mutandis Eur. Court HR, Engel v. the Netherlands judgment

of 1 October 1975, Series A no. 22, p. 38, para. 91).

In the present case it appears that, before the hearings, the

applicant had sent 96 exhibits (including 200 pages) to the City Court.

The City Court dismissed the exhibits as irrelevant pursuant to

section 341 of the Administration of Justice Act. On 8 June 1994 the

High Court decided to dismiss the request for the hearing of four

witnesses as the testimony of these witnesses was covered by

documentary evidence. At the same time the High Court decided ex

officio to schedule two whole days for the hearing due to the extent

and character of the evidence in the case. On the day of the hearing,

so the applicant alleges, the presiding judge dismissed some of the

applicant's documents as irrelevant to the case and interfered with the

way in which the applicant intended to put forward his arguments.

Having assessed the facts, the Commission is of the opinion that

the decisions as to the admission of evidence must be viewed as the

national courts' efforts to concentrate and structure the proceedings

in order to reach a judgment in accordance with the rule of law and

that they did not place the applicant at a substantial disadvantage

vis-à-vis his opponent. In particular the Commission has not found it

established that the national courts in their refusals to admit

evidence went beyond their discretion to do so when the evidence is

considered to be of no importance to the outcome of a case.

Furthermore, it falls within the national courts' discretion whether

to adjourn a criminal case pending the outcome of another case. In the

circumstances of the present case this did not make the proceedings

unfair within the meaning of Article 6 (Art. 6) of the Convention.

Accordingly, the Commission finds that the facts as presented by

the applicant do not disclose any appearance of a violation of

Article 6 (Art. 6) of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).

2. The applicant claims, furthermore, that his right to freedom of

expression guaranteed under Article 10 (Art. 10) of the Convention has

been violated by the decisions of the national authorities. In support

of his allegation he claims that the public has a right to be informed

about illegal practices performed by certain persons acting in a public

interest.

Before entering into these aspects of the application the

Commission recalls that Article 26 (Art. 26) of the Convention provides

that the Commission may deal with the matter only after all domestic

remedies have been exhausted, according to the general recognised rules

of international law, and within a period of six months from the date

on which the final decision was taken.

As far as the exhaustion of remedies is concerned the Commission

recalls that the mere fact that an applicant has submitted his or her

case to the various competent courts does not constitute compliance

with this rule. It is also required that the substance of any complaint

made before the Commission should have been raised during the

proceedings concerned. In this respect the Commission refers to

established case-law of the Convention organs (see e.g. Eur. Court HR

Ahmet Sadik v. Greece judgment of 15 November 1996, Reports 1996-V,

no. 20, p. 1653, para. 30).

In the present case the applicant did not raise the complaint,

either in form or in substance, in the proceedings before the domestic

courts that his conviction in the City Court and subsequently in the

High Court amounted to an interference with his right of freedom of

expression guaranteed by Article 10 (Art. 10) of the Convention.

Moreover, an examination of the case as it has been submitted does not

disclose the existence of any special circumstances which might have

absolved the applicant, according to the generally recognised rules of

international law, from raising these complaints in the proceedings

referred to.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and, hence, that this part

of the application must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

3. Finally, the applicant complains that he has not had an effective

remedy before a national authority. In this respect he invokes

Article 13 (Art. 13) of the Conventon which reads as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in public

authority."

The Commission notes that the applicant's case has been tried by

two levels of domestic courts, each conferred with full competence to

examine the case. The Commission concludes, therefore, that effective

remedies were available to the applicant within the meaning of Article

13 (Art. 13) of the Convention. It follows that this part of the

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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PEDERSEN v. DENMARK

PEDERSEN v. DENMARK

LEXI