Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28978/95

by Mogens TANGE

against Denmark

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

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 13 September 1995

Mogens Tange against Denmark and registered on 26 October 1995 under

file No. 28978/95;

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 1925. He is a lawyer

by profession and resides in Aars, Denmark.

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

summarised as follows.

In 1990 the applicant acted as court appointed defence counsel

in a jury trial concerning sexual abuse of minors. Judgment was

pronounced in that case on 16 November 1990.

Subsequently certain attempts were made to reopen the above case

and the applicant was appointed counsel for one of the persons involved

on 30 September 1992. In connection with his work in the above matters

the applicant received two statements, dated 16 February 1991 and

21 November 1992, respectively, made by a doctor who was also involved

in the above cases. The applicant gave copies of the statements to a

journalist who subsequently published parts thereof in a daily

newspaper.

By indictment of 22 July 1993 the applicant was charged with

having violated, inter alia, section 152 of the Penal Code which reads

as follows:

(Translation)

"Section 152: Any person who is exercising or has exercised

a public office or function, and who unauthorised passes on

or exploits confidential information which he has obtained

in connection with his office or function, shall be liable

to a fine or to simple detention or to imprisonment for any

term not exceeding 6 months.

If the offence has been committed in order to obtain an

unlawful profit for the offender or for others, or in

aggravating circumstances, the penalty may be increased to

imprisonment for any term not exceeding 2 years.

Information is confidential when so described in an Act or

other provisions, or when it is otherwise necessary to keep

it secret in order to protect important public and private

interests."

The offence, which the applicant denied having committed, related

to the fact that the applicant had passed on to the journalist the two

statements which allegedly contained information considered to be of

a confidential nature.

By judgment of 15 September 1993 the Nibe City Court (Retten i

Nibe) found the applicant guilty of the charge brought against him and

sentenced him to a fine of 2,000 DKK.

With leave the applicant appealed against the judgment to the

High Court of Western Denmark (Vestre Landsret) which upheld the

conviction and sentence by judgment of 31 August 1994. In its judgment

the High Court stated, inter alia, as follows:

(Translation)

"When compared to the original medical report which was

presented during the (1990) jury trial, the two statements,

which are referred to in the indictment, contain

particularly detailed information about the sexual

relations of a female witness who was heard during the jury

trial, including detailed descriptions of her sexual

organs. It must be considered obvious that such information

to the greatest possible extent shall remain secret.

If persons, who consider themselves the subject of sexual

crimes, had to expect that statements concerning medical

examinations, which investigations of such offences

require, could be passed on freely by the police or counsel

for the defence to journalists or others, the problems of

prosecuting such crimes would increase enormously since the

reluctance of reporting such crimes would increase

dramatically.

Thus, the High Court considers that the information (in

question) pursuant to section 152, subsection 3 must be

considered confidential since both important public and

important private interests make it necessary to keep the

information secret.

It is undisputed that (the applicant) passed on the two

statements and since neither the fact that parts of the

first statement had been mentioned previously in a daily

newspaper, nor the fact that the female witness in the jury

trial had mentioned that case to the press could lead to

any other result, it follows that (the applicant) has

violated section 152 of the Penal Code by passing on the

two statements..."

Leave to appeal against this judgment to the Supreme Court

(Højesteret) was refused on 13 July 1995.

COMPLAINTS

The applicant complains that his conviction and sentence amounts

to an unjustified interference with his right to impart information to

the press. He invokes Article 10 of the Convention.

THE LAW

The applicant complains of un unjustified interference with his

right to impart information as secured to him under Article 10

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

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

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authority and regardless of frontiers. This Article

shall not prevent States from requiring the licensing of

broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with

it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic

society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder

or crime, for the protection of health or morals, for the

protection of the reputation or rights of others, for

preventing the disclosure of information received in

confidence, or for maintaining the authority and

impartiality of the judiciary."

The Commission notes that the applicant did not, in the domestic

proceedings, rely expressly on the above provision. However, the

Commission does not find it necessary to consider whether this would

raise an issue under Article 26 (Art. 26) of the Convention as to the

exhaustion of domestic remedies because it finds that the application

is in any event inadmissible for the following reasons.

The Commission finds that there was in the present case an

interference by a public authority with the exercise of the applicant's

freedom of expression within the meaning of the above provision. This

interference resulted from the applicant's conviction by the Nibe City

Court on 15 September 1993, which was upheld by the High Court on

31 August 1994. Such interference contravenes the Convention if it does

not satisfy the requirements of the second paragraph of Article 10

(Art. 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.

for example Eur. Court HR, Lingens v. Austria judgment of 8 July 1986,

Series A no. 103, p. 24, para. 35).

As regards the two first elements the Commission finds that the

applicant's conviction was prescribed by law in that it was based on

section 152 of the Penal Code. The restriction moreover pursued a

legitimate aim covered by Article 10 para. 2 (Art. 10-2) of the

Convention, namely the protection of the reputation and rights of

others and the prevention of the disclosure of information received in

confidence. What remains to be examined is accordingly the question

whether the restriction complained of was "necessary in a democratic

society" for achieving this aim.

In this respect the Commission recalls that according to its

case-law and that of the European Court of Human Rights the Contracting

States have a certain margin of appreciation in assessing whether and

to what extent an interference is necessary, but this margin goes hand

in hand with European supervision covering both the legislation and the

decisions applying it. The Commission therefore has jurisdiction to

ascertain whether, having regard to the facts and circumstances of the

case, a "restriction" or "penalty" is compatible with freedom of

expression (cf. Eur. Court HR, Barfod v. Denmark judgment of

22 February 1989, series A no. 149, p. 12, para. 28).

In exercising its supervisory function the Commission must look

at the case as a whole and determine whether the interference was

proportionate to the legitimate aim pursued and whether the reasons

adduced by the Danish courts were relevant and sufficient.

The Commission recalls in this respect the judgment of the High

Court of 31 August 1994 and the reasons given therein for the

interference complained of. In particular the Commission recalls that

the statements in question contained detailed information of a very

intimate and private character, the confidentiality of which in

circumstances as in the present case moreover served an important

public purpose. Having regard thereto the Commission is satisfied that

the reasons adduced by the High Court were both relevant and

sufficient. Furthermore, the Commission considers that the sanction

imposed was not disproportionate to the legitimate aim pursued.

Consequently, the Commission finds that the interference complained of

may be regarded as "necessary in a democratic society" within the

meaning of Article 10 para. 2 (Art. 10-2) of the Convention for the

protection of the reputation and the rights of others.

It follows that 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 G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

Menu

TANGE v. DENMARK

TANGE v. DENMARK

LEXI