Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23118/93

by Arnold NILSEN and Jan Gerhard JOHNSEN

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 September 1997, the following members being present:

Mr. J.-C. GEUS, Acting President

Mrs. G.H. THUNE

MM. 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 2 November 1993

by Arnold Nilsen and Jan Gerhard Johnsen against Norway and registered

on 17 December 1993 under file No. 23118/93;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 27 October 1995 and the observations in reply submitted

by the applicant on 15 January 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Norwegian citizens, born in 1928 and 1943,

respectively. The first applicant is a police inspector residing at

Garnes. The second applicant is a police constable residing at

Fyllingsdalen. Before the Commission they are represented by

Mr Johan Hjort, a lawyer practising in Oslo.

A. Particular circumstances of the case

In the 1970s Mr N, then a law student, and Mr V, then a

university lecturer, made an investigation of violence in the city of

Bergen which has a population of some 200,000 inhabitants. The

researchers gathered material from the local hospital relating to all

patients subjected to violence in the period 1 January 1975 to

1 July 1976. Later on the researchers included material from other

sources. They started to publish their findings in 1980-81, initially

as several separate reports.

A summary, or rather an extract of the many reports, was

published in 1981 in a book called Volden og dens ofre. En empirisk

undersøkelse (Violence and its victims. An empirical study). This book

of some 280 pages included one chapter of 77 pages on police brutality,

i.e. the unlawful use of physical force by the police while carrying

out their duties. The researchers found among other things that 58

persons, 28 of whom were medically examined, had been exposed to police

brutality in the period referred to above. They then concluded that the

police in Bergen were responsible for approximately 360 incidents every

year in which excessive and illegal use of force was applied.

This book gave rise to a widespread public debate on the issue

of police brutality. Among other things it led to the Ministry of

Justice appointing professor B and Mr S-N, a practising lawyer, with

a mandate to examine whether the research carried out on police

brutality gave any general indication of the form and extent of police

brutality in the city of Bergen. In 1982 their report was printed and

published as a book under the title Politivold-rapporten (Report on

police brutality). They found that the extent and form of police

brutality in the city of Bergen were far more serious than presumed,

and that the conclusions drawn by Mr N and Mr V were fairly accurate.

The report sparked off another public debate. The conclusions and

the premises of the work were called in question by the Norwegian

Police Association among others. The association considered bringing

an action for defamation against the authors of the report and the

researchers, but in January 1983 counsel for the association publicly

announced that it would not take legal action.

In particular the newspapers in Bergen took a keen interest in

the debate following the publishing of the report. In 1981 a newspaper

called Morgenavisen wrote that Mr N had lied while gathering material

for his research. Mr N brought a private prosecution for defamation

against the newspaper, but the latter was acquitted in 1983 by the

Bergen City Court (byretten) on the grounds that the accusation had

been justified.

Professor B continued his work on police brutality, but now as

an independent researcher. His efforts resulted in the book Politivold

(Police brutality), with the subtitle Omfang - årsak - forebyggelse.

En studie i desinformasjon (Extent - causes - prevention. A study

in disinformation), published in the spring of 1986. The book took the

1982 report as its point of departure, but had a much broader approach;

new facts, analysis and conclusions were added. Among other things

professor B was highly critical of the judgment in the case between the

researcher N and Morgenavisen in Bergen. This publication caused the

public debate on police brutality to flare up once again.

During this debate, in the spring and summer of 1986, the second

applicant, who was then the president of the Bergen Police Union

(Bergen Politilag), was interviewed by the newspaper Dagbladet. The

paper published the interview with him on 15 May 1986. The text of the

interview reads as follows:

(Translation)

"'The mood of the officers in the police force has been

swinging between despair and anger. An entire service has

been denounced by anonymous persons. Many of the officers

dread going out in town because there is always somebody

who believes that there must be something in these

allegations.'

This is what the chairman of the Bergen Police Union, (the

second applicant), told Dagbladet. He describes

professor B's recent report on police brutality in the

Bergen police force as 'pure disinformation intended to

harm the police'.

'Until the contrary has been proved, I would characterise

this as a deliberate lie. The allegations come from

anonymous sources and are clearly defamatory of the

service.'

'Are you questioning B's motives for exposing police

brutality?'

'There must be other ulterior motives. It appears as if the

purpose has been to undermine confidence in the police.'

'Would you suggest that the information be investigated

internally?'

'If there is any truth in it, we will do what we can to

remedy the situation. Such a situation is not to our

credit, and we are not interested in having such people in

the force.'

'So you do not exclude the possibility that misconduct has

occurred?'

'I refuse to accept that any officers have committed the

outrages described. But I cannot exclude the possibility

that some of them have in some case used force and gone too

far.'"

On 16 May 1986 the first applicant, who was chairman of the

Norwegian Police Association (Norsk Politiforbund) at the time, was

quoted in the newspaper Bergens Tidende in an article which reads inter

alia as follows: (Translation)

"'It is beneath the dignity of a law professor to present

something like this. The allegations are completely

frivolous since they are based on anonymous sources. They

have nothing to do with reality.'

'I have spent my whole working life in the Bergen police

force, and can safely say that the allegations concerning

police brutality bear no relation to reality. They are

stories that would have been better suited to a weekly with

space to fill than a so-called serious study,' says (the

first applicant).

'I am puzzled by the motives behind such allegations,'

continues the chairman of the Police Association. 'At any

rate, it cannot be in the interests of the rule of law and

the public good to create such problems for an entire

service. I would claim that the quality of the human

resources in the police force is fully on a par with that

found among professors. We would not be able to base a

charge against anyone on such flimsy grounds as professor B

does. At any rate, there would not then be any rule of law

in this country,'

'But you are not denying that police brutality does occur?'

'Of course not, but that is a different question. Here is

a story of the systematic use of violence and pure theft.

That kind of thing would not be tolerated in a police

force.'

(The first applicant) points out that he has not examined

the book closely, but that what has emerged so far cannot

be left unchallenged. The problem is that it is difficult

to contest the allegations because it is not an individual,

but an entire service, which feels it has been libelled. He

does, however, agree with Chief of Police OH, who told

Bergens Tidende yesterday that there must be good reason

for the Director of Public Prosecutions to examine the

matter more closely. The Police Association will also

consider getting a legal opinion of the book."

In the autumn of 1986 the Ministry of Justice considered

appointing a commission of inquiry headed by a Supreme Court judge.

However, this never materialised. The Ministry of Justice decided only

to propose to the national assembly that a permanent, independent

investigative body should be set up to consider claims against the

police.

Late in the autumn of 1986 professor B and Mr N published another

book on the issue: "Dokumentasjon av politivold og andre overgrep i

Bergenpolitiet" (Documentation of police brutality and other misconduct

in the Bergen police force). Certain statements by professor B in this

book led the Norwegian Police Association and the Bergen Police Union

to prefer defamation charges against him in July 1988. The statements

required to be annulled in this action against professor B were as

follows: "(a)

The harassment and persecution to which N - and in part V

- have been subjected in Bergen are reminiscent of the fate

of dissidents in Eastern European countries. I doubt that

there is anyone among us whose situation is closer to that

of these dissidents than N. It is a wonder that he has had

the courage and strength to continue his struggle to bring

the truth to light.

(b)

It is impossible to say how many officers in the Bergen

police force are involved in the unlawful practice

described here; hopefully only a small minority. It is,

however, difficult to believe that a great many in the

force could be unaware of the actions of certain

colleagues. But their silence is ensured by the pressing

demand for 'loyalty'. This has made it possible for the

criminal sub-culture in the Bergen police force - whose

activities encompass various kinds of offences - to survive

and most likely to flourish.

(c)

There is reason to believe that many of the actions against

N and V are headed by somebody who is centrally placed -

that there is somebody behind the scenes in the Bergen

police force who is pulling the strings, plotting

strategies and laying plans together with a few highly

trusted colleagues. According to information that has come

to light, it may now be possible to identify the key people

responsible for some of the misconduct."

The defamation case against professor B was later discontinued

in view of the European Court of Human Rights' judgment in the case

Thorgeirson vs. Iceland (Series A no. 239).

Up to this juncture the identity of the persons who had supplied

information on police brutality in the city of Bergen was known only

to the researchers themselves. An unexpurgated version of the latest

book giving names of the persons in question was sent by professor B

to the Director General of Public Prosecutions, who responded by

commencing an investigation. The investigation was headed by Mr L, a

public prosecutor of the Eidsivating Office of the Public Prosecutor.

He was assisted by senior police officials and police officers at Oslo

police headquarters. The result of the investigation was made public

in June 1987. The conclusion was essentially that the allegations of

police brutality which had been advanced were unfounded. Two hundred

and sixty-eight cases of alleged police brutality in the city of Bergen

were investigated. This led to charges against one police officer who

was, however, subsequently acquitted.

After the investigation was concluded, indictments were preferred

against 17 persons who had made statements to the police and a writ

giving the option of a fine was served on one person, inter alia for

giving false evidence. Fourteen persons were convicted of this. In the

public debate these cases became known as the "boomerang cases".

Charges were also brought against two individuals for false

accusations against the police related to other matters. One of these

individuals was Mr N, who was acquitted of these charges in June

1990. In the spring of 1987 professor B published another book

called Politiovergrep og personforfølgelse. 220 forklaringer om

politivold og andre overgrep i Bergenpolitiet (Police misconduct and

individual harassment. 220 statements concerning police brutality and

other forms of misconduct in the Bergen police force). This book was

based on the 1986 publication Dokumentasjon av politivold og andre

overgrep i Bergenspolitiet (Documentation of police brutality and other

misconduct in the Bergen police force). In this publication he updated

his previous book Politivold (Police brutality) with new factual

information.

In 1988 Lov og Rett (a Norwegian law journal) published a special

volume devoted to police violence and the debate around it. The issue

included a number of articles by persons who were critical of the

investigation by public prosecutor L. It included a long article by

professor B in which he harshly criticised the investigation and an

article by the two researchers Mr N and Mr V, whose investigations

sparked off the debate, called A new trial against Galilei. At the same

time it became public knowledge that Amnesty International would

investigate police brutality in the Bergen police force.

A new statement by the first applicant was printed in

Annonseavisen in Bergen on 2 March 1988. The statement reads:

(Translation)

"Not only has professor B now issued a demand that a

government commission of inquiry should be set up to review

what has long since been concluded by the Director of

Public Prosecutions. The Bergen police department have now

been reported to Amnesty International for violating human

rights! A delegation from the international secretariat in

London has already been in Bergen. Their report is expected

to be ready this spring.

'I have to admit that I was quite surprised when I was

recently told about this. It seems as if gentlemen like N,

V and B now realise that when one move does not work, they

can try another,' commented the chairman of the Norwegian

Police Association (the first applicant).

In (his) view, the matter has begun to get out of hand. He

describes reporting the matter to Amnesty as an insult, and

feels that with the recent, sharp attacks by professor B

among others, the limits of what can be called impartial

research have long been exceeded. 'In my view, one is faced

with a form of skulduggery and private investigation, where

there is good reason to question the honesty of the

motives'.

'The fact that professor B now calls into question the work

done by (public prosecutor) L and instituted by the

Attorney General is in itself serious and astonishing. Now

the charges have been extended to include superior police

authorities as well.'"

On 7 June 1988 the first applicant spoke in his capacity as

president of the National Police Association at its annual general

assembly meeting. He was quoted as follows in the newspaper Bergens

Tidende:

(Translation)

"'The Norwegian Police Association will not accept ...

amateur private investigations on a grand scale intended to

fabricate allegations of police brutality which are then

made public.'"

The article furthermore reads:

"He described verbal attacks on the police as an attempt to

undermine the dignity and authority of the police."

In May 1989 professor B instituted defamation proceedings in the

Oslo City Court (byretten) against the applicants in which he requested

damages and asked that the following statements be declared null and

void.

As regards the first applicant:

(from the newspaper article of 16 May 1986)

1) "I am puzzled by the motives behind such accusations.

At any rate, it cannot be in the interest of the rule of

law and the public good to create such problems for an

entire service."

(from the newspaper article of 2 March 1988)

2) "In my view, one is faced with a form of skulduggery

and private investigation where there is good reason to

question the honesty of the motives."

(from the newspaper article of 7 June 1988)

3) "The Norwegian Police Association will not accept ...

amateur private investigations on a grand scale intended to

fabricate allegations of police brutality which are then

made public."

4) "He described verbal brutality on the police as an

attempt to undermine the dignity and authority of the

police."

As regards the second applicant:

(from the newspaper article of 15 May 1986)

1) "He describes professor B's recent report on police

brutality at Bergen police department as 'pure

disinformation intended to harm the police'."

2) "Until the opposite has been proved I would

characterise this as a deliberate lie."

3) "There must be other ulterior motives. It appears as

if the purpose has been to undermine confidence in the

police."

The case was heard in court from 24 August to 8 September 1992.

The Court heard the parties as well as 23 witnesses and was presented

with substantial documentary evidence. On 7 October 1992 judgment was

pronounced. Having considered on the one hand the applicants' right to

freedom of expression and on the other hand professor B's right to

protection against defamation the City Court declared the first

applicant's statements 2 and 3 and all three statements made by the

second applicant null and void. Furthermore, the first applicant was

ordered to pay 25,000 NOK in non-pecuniary damages to professor B as

well as 112,365.83 NOK in costs. The second applicant was not ordered

to pay damages as the claims in respect of him had been submitted out

of time. He was, however, ordered to pay to professor B 168,541.91 NOK

in costs.

The applicants and professor B appealed against the judgment to

the Supreme Court (Høyesterett). On 19 November 1992 the Appeals

Selection Committee granted leave to appeal on points of law.

By decision (kjennelse) of 5 May 1993 the Supreme Court rejected

both appeals and thus upheld the judgment of the Oslo City Court.

Furthermore, each of the applicants was ordered to pay an additional

45,000 NOK in costs to professor B. In the decision Justice Schei

stated on behalf of the Court inter alia as follows:

(Translation)

"In this case particular attention must be paid to the

freedom of expression. The statements for which

mortification is demanded were made in a public debate

concerning police brutality. Police brutality - and with

this I mean illegal physical force used by the police

against individuals - is an important matter in society. It

is of central importance for democracy that a debate

concerning such matters in society may take place as far as

possible without a risk of sanctions against those who

participate. Of particular importance is to allow for a

wide margin of appreciation for criticism of society, cf.

in this connection section 100 of the Constitution. But

those who act as defenders against the criticism, among

others the representatives of the Bergen police, of course

enjoy the freedom of expression as well.

...

However, freedom of expression does not go as far as

allowing every statement in a debate - even if the debate

relates to important aspects of society. Freedom of

expression must be weighed against the right of the injured

party. The line between statements which may pass and

statements which ought to be declared null and void must

normally be drawn at statements which relate to the other

person's personal honour or motives.

...

I agree with the City Court that (the statements in

question) fall under section 247 of the Penal Code. Seen

together they are directed against (professor B) ...

...

Considerations in respect of freedom of expression cannot

make these statements lawful. I refer to what I said

earlier about statements which are directed against the

personal honour and integrity.

It has been submitted that (professor B's) own situation

must be of central importance in the evaluation of the

lawfulness. It is alleged that he used strong and

embarrassing statements against his opponents in the debate

and must accept that an embarrassing light is put on him as

well.

I agree that (professor B) in his book "Politivold" makes

harsh criticism. A lot of this is criticism against the

system, but a lot is also directed against persons.

...

I mention that the appellants have forcefully submitted

that their statements were made in their capacity as

representatives of the police and that they must enjoy, as

representatives, a particular protection against

mortification. I agree that it was natural that (the

applicants) as representatives looked after the interests

of the police officers in the debate. As I have already

mentioned they are protected by the freedom of expression

in the same manner as those who direct the attention

towards possible questionable circumstances within the

police force. But as pointed out there is - also in respect

of them - a limit. It has been overstepped here."

One judge wrote a concurring opinion in which he stated inter

alia as follows:

(Translation)

"I have reached the same conclusion (as above) and I agree

on the important points in the reasoning. However, as far

as I am concerned I have reached this conclusion under some

doubts, related to the question whether the appellants'

statements were unlawful having regard to the circumstances

in which they were made. The basis for my doubts is as

follows:

It has been pointed out that in the public debate

concerning matters in society - what the Court in

Strasbourg calls `matters of public concern' - the

threshold for what the participants may say without the

risk of being convicted for defamation is very high. Even

if this is accepted I agree that this should not legitimise

attacks which are directed against the opponent's personal

integrity, or which fail to appreciate or throws suspicion

on his motives for participating in the debate.

...

As far as I am concerned it is not very easy to see that

the statements which the City Court in this case have

declared null and void in any particular way may be said to

be directed against (professor B) as a private individual.

But I shall leave that since I also think that as such it

must be considered unlawful even in a heated public debate

to attack another person's integrity and motives instead of

what he has said.

What in particular causes a problem for me is that - as I

see it - it was (professor B) himself who, when the debate

on police brutality started again in 1986, had brought the

integrity of the police and in particular that of the

Bergen police department into the discussion...

...

I cannot read this in any other way than that (professor B)

here indeed himself accuses his opponents in the debate -

`the police, its organisations and defenders' - of lack of

integrity, of knowingly hiding factual circumstances and of

acting on the basis of inappropriate motives.

It is in my view on this basis that the

appellants' statements must be evaluated - and

in particular these statements which were made

after the publication of 'Politivold' in 1986.

It is not as such ill-founded when the

appellants submit that they, who naturally must

have felt offended on behalf of the police, were

entitled to reply in the same manner.

In this connection it is also of importance, in my opinion,

that the appellants expressed themselves on behalf of the

police organisations in Bergen and at the national level,

respectively. They appeared as elected representatives for

the members. Very likely, and rightly so, they considered

it an organisational duty to react to the attacks which

were directed against the working methods of the police. It

is not unusual to see that a group's representatives in

reply to public attacks in our society react in a way which

might be lacking the necessary reflection and which might

be somewhat inappropriate. The appellants were not familiar

with the legislation on defamation either.

Professor (B) has maintained that there must be a

difference between what well-known politicians must endure

in respect of statements related to their political

activities and the protection he enjoys when he `from his

professional starting point engages himself in important

matters of public concern'. I do not agree in this and do

not understand either how this can be argued. In my opinion

and as a matter of principle a scholar - for example in law

- has no further right of protection under the defamation

legislation, when he embarks on a public debate on matters

of public interest, than a politician.

When I nevertheless agree with (Justice Schei's)

conclusions, this is because I agree that the

considerations for the debate on `matters of public

concern' must be given the best possible terms (and) might

suffer if such statements, which are dealt with in this

case, are not declared null and void - even if their

background is taken into consideration."

B. Relevant domestic law and practice

Freedom of expression is protected by Section 100 of the

Norwegian Constitution of 17 May 1814 which reads as follows:

(Translation)

"There shall be liberty of the press. No person may be

punished for any writing, whatever its contents, which he

has caused to be printed or published, unless he wilfully

and manifestly has either himself shown or incited others

to disobedience to the laws, contempt of religion, morality

or the constitutional powers, or resistance to their

orders, or has made false and defamatory accusations

against anyone. Everyone shall be free to speak his mind

frankly on the administration of the State and on any other

subject whatsoever." Restrictions on freedom of expression

may only be imposed according to law. The responsibilities

referred to in Section 100 are prescribed by statute.

Firstly, a defamatory statement may constitute a criminal offence

under the Penal Code of 22 May 1902. Sections 246 and 247 read as

follows:

(Translation)

"Section 246. Any person who by word or deed unlawfully

(rettsstridig) defames another person, or who is accessory

thereto, shall be liable to fines or imprisonment for a

term not exceeding six months."

"Section 247. Any person who by word or deed behaves in a

manner that is likely to harm another person's good name

and reputation or to expose him to hatred, contempt, or

loss of the confidence necessary for his position or

business, or who is accessory thereto, shall be liable to

fines or imprisonment for a term not exceeding one year. If

the defamation is committed in print or in broadcasting or

otherwise under especially aggravating circumstances,

imprisonment for a term not exceeding two years may be

imposed."

To constitute an offence, a defamatory statement must be covered

by the wording of either section 246 or section 247.

Moreover, a statement may only be declared null and void if it

is unlawful (rettsstridig). This follows expressly from the wording of

section 246, but the restriction also applies to section 247 according

to case-law. The reservation that substantive statutory criminal

provisions only apply to actions which are unlawful (rettsstridige) is

to be understood in such a way that it is conceivable that an action

which is literally within the scope of the provision may nevertheless

fall outside. However, the law does not define more closely when this

is the case. The decision involves a balance between the interests

protected by the provision concerned and other interests which have to

be protected. In each case it is for the courts to decide whether other

interests have such weight that an action which verbatim is within the

provision nevertheless cannot be considered unlawful (rettsstridig).

As regards how such a restriction to what is unlawful should be

further delimited, Supreme Court case-law states that particular

emphasis should be placed on whether the matter is of general interest,

viewed in relation to what the case concerns and who the parties are.

Furthermore, weight must be accorded to the context in which the

statement appeared and the prelude to its appearance. Considerable

importance must also be attached to whether the matter is presented in

an objective, balanced manner with the main emphasis on eliciting what

it concerns and any underlying factors, cf. Norwegian Law Gazette 1990,

p. 636.

Secondly, a defamatory statement may by court order be declared

null and void. Section 253, subsections 1, 2 and 3 of the Penal Code

read: (Translation)

"1. When evidence of the truth of an allegation is

admissible and such evidence has not been produced, the

aggrieved person may demand that the allegation be declared

null and void unless it is otherwise provided by statute.

2. A claim that the allegation be declared null and void

shall be summarily dismissed when the person who has made

the allegation withdraws it before the main hearing in a

manner the court finds satisfactory to the aggrieved

person.

3. A claim that the allegation be declared null and void

shall also be summarily dismissed:

a) when the allegation is made in a judgment, order,

judicial decision or other judicial act,

b) when the allegation is made by a witness during a

statement in a court hearing or to the police or the

prosecution authority, or by a party, legal representative,

prosecutor, defence counsel, appointed expert or social

inquirer or by an official employed by the prosecuting

authority or the police during legal proceedings or

investigation. In these cases the claim that the

allegations be declared null and void shall, nevertheless,

not be summarily dismissed when the court finds that the

aggrieved person should have the truth of the allegation

examined in declaration proceedings against the defendant

or that the statement falls outside the limits of the case,

c) when the allegation is made in a written statement

from the Storting's ombudsman for the public

administration. ..."

Section 253 of the Penal Code constitutes a legal remedy used to

declare defamatory statements null and void by judgment of the court

when the person making the allegations has not succeeded in proving

their truth although evidence to this effect is admissible. This legal

remedy may only be used when the defamatory statement consists of facts

since the truth of value judgments is not susceptible of proof. In

order to be declared null and void, a defamatory statement must be

covered by the wording of either section 246 or section 247 of the

Penal Code and also be considered unlawful (rettsstridig) according to

the above mentioned case-law.

The remedy of declaring a defamatory statement null and void is

not a penalty, but a civil legal claim. The remedy according

to section 253 is nothing more than a judgment by the court that the

person making the defamatory statement has not succeeded in proving its

truth. Although this remedy is a civil legal claim, it is pursued

through a procedure laid down by the Criminal Procedure Act.

Thirdly, if a statement is to be considered to be defamatory

according to section 246 or section 247 of the Penal Code, the person

making such a statement may be ordered by the court to pay

compensation. Section 3-6 of the Damages Act of 13 June 1969

provides: (Translation)

"Section 3-6 (compensation for defamation and infringement

of privacy). Anybody who commits libel or slander or

infringes the privacy of another person shall, if he has

been negligent or the conditions of imposing punishment are

fulfilled, pay compensation for the injury sustained and

such compensation for loss of future earnings as the court

finds reasonable with due regard to the degree of guilt and

other circumstances. He may also be ordered to pay such

compensation (redress) for non-financial injury as the

courts find reasonable.

If the offence takes the form of libel, and anybody who has

acted in the services of the owner or publisher of the

printed matter is responsible under the preceding

paragraph, the owner and publisher too are liable for the

compensation. The same rule applies to any redress imposed

under the preceding paragraph, unless the court decides to

exempt them..."

COMPLAINTS

The applicants invoke Article 10 of the Convention. They maintain

that the judgment of the City Court and the decision of the Supreme

Court represent an unjustified interference with their right to freedom

of expression.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 November 1993 and registered

on 17 December 1993. On 4 July 1995 the Commission (Second Chamber)

decided that notice of the application should be given to the

respondent Government and invited them to submit written observations

on the admissibility and merits thereof.

Following an extension of the time-limit fixed for this purpose

the Government submitted their observations on 27 October 1995.

Following an extension of the time-limit the applicants submitted

their observations in reply to those of the Government on

15 January 1996.

THE LAW

The applicants complain that their right to freedom of expression

has been violated in view of the outcome of the case instituted against

them, ending with the decision of the Supreme Court of 5 May 1993. They

invoke Article 10 (Art. 10) of the Convention which reads:

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

righ 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 applicants point out in particular that this provision

protects as a matter of principle free expression and in the balance

between this principle and the exceptions thereto the principle must

be given first priority. They contend that the case-law of the

Convention organs shows that debate on public issues should be

uninhibited and wide open and that it may well include vehement and

sometimes unpleasantly sharp attacks on the opponents. In the present

case the applicants did nothing more than to defend their organisations

and their members against such attacks and, being representatives of

the organisations, they should enjoy the same freedom of expression as

their opponent, professor B, could claim for himself. The applicants

furthermore maintain that their utterances would fall under the heading

"value judgments" through which they did not question the honesty of

professor B but criticised his carelessness in promoting the untrue

statements of his informants. It should also be borne in mind that

subsequent investigations by the Director of Public Prosecutions and

the outcome of the so-called "boomerang cases" proved that several of

the informers had indeed been lying. In conclusion the applicants

accordingly argue that their utterances, taken as a whole and on the

background of professor B's attacks in the debate, were well within the

limits of Article 10 (Art. 10) of the Convention.

The Government submit in particular that the language and

structure of Article 10 (Art. 10) reflect the conflicting values

balanced in the Article which is furthermore heavily qualified by its

exceptions. One of the tests to be satisfied to justify an interference

is the doctrine of the margin of appreciation afforded the state

concerned when striking the balance between free speech and the

conflicting rights and freedoms among which is the protection of the

reputation and rights of others, which is in itself a human right. In

the present case the Government contend that the applicants' statements

were deliberate accusations and descriptions of fact. Thus, they were

not value judgments but factual statements which, however, the

applicants never made any attempt to prove. The statements were

directed against a person who had taken an interest in questions

relating to police brutality and aimed at his personal integrity and

his motives. This person was accused of lying, having dubious motives,

being dishonest and faking material. Such unproved allegations,

however, would not in the Government's view deserve the protection of

Article 10 (Art. 10) of the Convention. Accordingly, they conclude that

the application is manifestly ill-founded.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and of fact

under the Convention, the determination of which should depend on an

examination of the merits of the application as a whole. The Commission

concludes, therefore, that the application is not manifestly

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

the Convention. No other grounds for declaring it inadmissible have

been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

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

Secretary Acting President

to the Second Chamber of the Second Chamber

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NILSEN AND JOHNSEN v. NORWAY

NILSEN AND JOHNSEN v. NORWAY

LEXI