Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15890/89

by Jens Olaf JERSILD

against Denmark

The European Commission of Human Rights sitting in private on

8 September 1992, the following members being present:

MM. J.A. FROWEIN, Acting President

C.A. NØRGAARD

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. K. ROGGE, Deputy to the Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 July 1989 by

Jens Olaf JERSILD against Denmark and registered on 11 December 1989

under file No. 15890/89;

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 20 December 1991 and the observations in reply submitted

by the applicant on 17 February 1992;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Danish citizen, born in 1959 and residing in

Copenhagen, Denmark. He is a journalist by profession. Before the

Commission the applicant is represented by Mr. Kevin Boyle of

Colchester, United Kingdom.

A. The particular facts of the case

Inspired by an article which appeared in the newspaper

Information on 31 May 1985 the applicant decided to make a television

programme which would describe the attitudes of a group of young

people, who called themselves the "greenjackets" (grønjakker), in

respect of racism at Østerbro in Copenhagen, and give a general

description of the social standing of these young people. The applicant

contacted representatives of the "greenjackets", three of whom he

invited to participate in a tape recording of their viewpoints. The

interview and its recording lasted between 5 and 6 hours and in the

course of the interview, which was conducted by the applicant, the

greenjackets spoke in abusive and derogatory terms about immigrants and

ethnic groups in Denmark.

The applicant subsequently edited and cut the interview to a

filmed feature of a few minutes which was broadcast in Danmarks Radio's

news magazine "Søndagsavisen" on 21 July 1985.

On 19 February 1986 the Public Prosecutor instituted criminal

proceedings against the three youths interviewed (here referred to as

A., B. and C.), charging them with a violation of Section 266 (b) of

the Danish Penal Code by expressing in the filmed feature the following

statements:

A. stated inter alia:

(translation)

"... Niggers, they're supposed to be free people - man,

they aren't even people, they're animals. You can just,

what's it called - take a picture of a gorilla, man - and

then look at a negro, it's the same body-build and

everything, man - flat forehead and everything, man, a

nigger isn't a person - it's an animal - and so are other

alien workers - Turks and Yugoslavs - and whatever they're

called."

B. stated inter alia:

(translation)

"Well, we don't like that they're 'perkere' (1) - see - and

then we don't like their mentality ... What we don't like

is when they run around in Zimbabwe clothes and talk that

hula-hula language out on the street ... All the 'perkere'

are in the lockup for pushing drugs."

___________

(1) "perkere" is a derogatory slang in Denmark for immigrant

workers, such as Turks, Yugoslavs and Pakistanis.

---------------

C. stated inter alia in reply to the question of whether they

are not somewhat envious of the 'perkere':

(translation)

"All those drugs they're selling - man - half the people in

Vestre (prison) - man - they're the ones in the lockup for

drugs ..."

The applicant was charged with aiding and abetting the three

youths as was also the head of the news section of Danmarks Radio.

On 24 April 1987 the City Court of Copenhagen (Københavns Byret)

found A., B. and C. guilty of the charge brought against them. In its

judgment the City Court stated inter alia:

(translation)

"The statements made by the defendant A. in the television

programme that 'niggers, alien workers' are animals and the

statements made by the defendants B. and C. on drugs in

relation to 'perkere' are found to insult and degrade a

class of persons on account of their race, colour, national

or ethnic origins. Consequently, they are found to have

violated Section 266 (b) of the Penal Code. However, the

other statements made by the defendant B. under the

indictment are not found to be of such a serious nature

that they are punishable under Section 266 (b)."

The applicant was convicted of aiding and abetting in the

violation of this Section read in conjunction with Section 23 of the

Penal Code. He was held to have aided and abetted in the dissemination

of the statements. In the judgment the City Court stated inter alia:

(translation)

"... When considering the conduct of [the applicant] and

[the head of the news section] the Court finds, having

regard to the evidence given during the trial, that [the

applicant] visited the 'grønjakker' in Studsgårdsgade

following an article in [the newspaper] 'Information' of 31

May 1985 in which inter alia the racist viewpoints of the

'grønjakker' were described, and then, after a discussion

with [P.], the club assistant, among others, agreed that

the defendants A., B. and C. should participate in a

television programme. Furthermore the Court finds that the

object of the television programme was to describe the

attitudes of the 'grønjakker' in respect of racism at

Østerbro - as stated in the article in 'Information' - as

well as to give a general description of the social

standing of these young people. The Court thus finds that

[the applicant] has taken the initiative for the television

programme himself. Furthermore the Court finds that [the

applicant] knew beforehand that discriminatory statements

of a racist nature could be expected to be made during the

interview. In connection with the interview, which took

several hours and during which beer was consumed, partly

paid for by [Danmarks Radio], [the applicant] is found to

have encouraged the 'grønjakker' to express their racist

viewpoints, which by being broadcast on television in

itself implies a violation of Section 266 (b) of the Penal

Code. Thus, by having aided and abetted the dissemination

of the above-mentioned statements under the circumstances

stated above - which in fact without any 'balancing'

whatsoever were transmitted indiscriminately in the

television programme on the basis of the cutting of the

recordings made by the [applicant] - [he] is found guilty

of aiding and abetting the violation of Section 266 (b) of

the Penal Code."

The applicant was sentenced to pay five day fines of 200 Danish

crowns each or in the alternative to serve five days of mitigated

imprisonment.

A., B. and C. did not appeal against the Court's judgment. The

applicant, on the other hand, appealed against the judgment to the High

Court of Eastern Denmark (Østre Landsret).

On 16 June 1988 the High Court delivered its judgment. The

majority, five judges, upheld the conviction on the same grounds as the

City Court. One judge held that the applicant should be acquitted.

He agreed that the statements of A., B. and C. were punishable but

added that he

(translation)

"does not find that [the applicant], by broadcasting the

statements on television, has transgressed the bounds of

the freedom of expression to which the television and other

media must be entitled considering the fact that the object

of the programme was to create a social debate and to

inform the public of the youth group's special attitude to

racism and the group's social standing."

With leave the applicant appealed against this judgment to the

Supreme Court (Højesteret).

On 13 February 1989 the Supreme Court delivered its judgment. The

majority (four judges) confirmed the applicant's conviction, stating:

(translation)

"[The applicant] has caused the publication of the racist

statements made by a narrow circle of persons which thereby

rendered them punishable and [he] has thus, as held by the

City Court and the High Court, violated Section 266 (b) in

conjunction with Section 23 of the Penal Code. These judges

do not find that the protection of freedom of expression in

respect of issues and events of general public interest as

opposed to the protection against racial discrimination in

this case can justify an acquittal of [the applicant].

These judges therefore vote in favour of upholding the

judgment."

One judge dissented with the following reasoning:

(translation)

"The object of the programme was to contribute to the

information on an issue - the attitude towards strangers -

which was the subject of an extensive and at times very

emotional debate. The programme must be presumed to have

given a clear picture of the viewpoints of the 'grønjakker'

which the population thus had an opportunity to be

acquainted with and make up their mind about. Considering

the nature of the viewpoints, any countering during or

immediately before or after the interview would not have

served a reasonable purpose. Even though it concerned a

relatively small group of people with extreme viewpoints,

the programme had a fair news and information value. When

assessing the conduct of [the applicant] it is found that

the fact that these viewpoints were disseminated at [his]

own initiative is not of the utmost importance. In these

circumstances and irrespective of the fact that the

statements are rightly considered to be covered by Section

266 (b) of the Penal Code, I doubt the advisability of

finding [the applicant] guilty of aiding and abetting in

the violation of the provision in question. I therefore

vote in favour of acquittal."

B. Relevant domestic legislation

Section 266 (b) of the Penal Code provides:

(translation)

"Any person who, publicly or with the intention of wider

dissemination, makes a statement or other communication by

which a group of people are threatened, insulted or

degraded on account of their race, colour, national or

ethnic origin or religion shall be liable to a fine or to

simple detention or to imprisonment for any term not

exceeding two years."

Section 23 (1) of the Penal Code provides:

(translation)

"The penalty in respect of an offence shall apply to any

person who has contributed to the execution of the wrongful

act by instigation, advice or action. The punishment may

be reduced for any person who only intended to give

assistance of minor importance, strengthen an intent

already resolved, if the offence has not been completed or

an intended assistance failed."

COMPLAINTS

The applicant complains that the Supreme Court judgment upholding

his conviction and sentence constitutes a breach of Article 10 of the

Convention in that his right as a television journalist to impart

information and to impart his ideas was unjustifiably interfered with

by a public authority.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 July 1989 and registered on

11 December 1989.

On 7 October 1991 the Commission decided to bring the application

to the notice of the respondent Government and to invite them to submit

written observations on its admissibility and merits.

The Government's observations were submitted on 20 December 1991

and the applicant's observations in reply were submitted on 17 February

1992.THE LAW

The applicant complains that his right as a television journalist

to impart information and to impart his ideas was interfered with by

the Danish courts and that the interference was not justified. He

invokes Article 10 (Art. 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. 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 finds that there has been an interference by a

public authority with the exercise of the applicant's freedom of

expression. This interference resulted from the sentence to pay a fine

imposed on the applicant by the City Court of Copenhagen on 24 April

1987, upheld by the High Court of Eastern Denmark on 16 June 1988 and

by the Supreme Court on 13 February 1989, for aiding and abetting the

three youngsters to disseminate defamatory statements about immigrants

in Denmark.

The Commission also finds that the interference was in accordance

with law as it was based on Section 266 (b) in conjunction with Section

23 (1) of the Danish Penal Code. The restriction 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.

Accordingly, what remains to be examined is whether the

restriction complained of was necessary in a democratic society as

required by Article 10 para. 2 (Art. 10-2) of the Convention.

The applicant submits that in pursuit of the legitimate aim of

protecting the reputation and rights of others it is not necessary in

a democratic society to penalise a journalist where he seeks in good

faith to investigate an issue of major public concern and to ensure

public and governmental response. The applicant contends that the

programme item condemned in court was in fact directed at protecting

the rights of the immigrant community, through exposure of the

attitudes of the greenjackets which in turn explained their violent

behaviour towards immigrants. At the same time the feature sought to

give information to the public about the social deprivation of the

youngsters and to raise questions about the effectiveness of policies

of the authorities, particularly the police.

The applicant also submits that the interpretation of Section 266

(b) in conjunction with Section 23 of the Danish Penal Code by the

Danish courts did not give proper weight to the motivation of the

broadcast, which was not aimed at insulting or degrading persons, but

was designed to make a portrait of the greenjackets and to convey to

the public an appreciation through images and words of this new

phenomenon in Denmark, the espousal of violent racism. To achieve such

a portrait of the group it was necessary for the medium in question,

television, to broadcast the views of the group even if these were,

outside the context of the broadcast, offensive. To have excluded such

speech in the final editing would have made the portrait incomplete and

ultimately of no value as a means of communicating to the public the

group's attitudes however reprehensible they were, particularly as the

"Søndagsavisen" feature in July 1985 was the first investigation by

television of the phenomenon of violence and harassment against

immigrants.

The applicant thus considers that his conviction was a

disproportionate interference with his freedom of expression.

The Government submit that present-day actions against racist

activities are based on the international community's bitter experience

of the dire consequences of such acts which have led to great

suffering. This phenomenon is not only something which belongs to the

past but is a reality of today as recent trends in various European

countries show. This had led to the adoption of declarations within the

European Communities against racism as well as motions in the Danish

Parliament, condemning all forms of discrimination. The Government

agree that it is desirable to give the press as good conditions as

possible in order to enable it to report on what is happening in

society, but this is not tantamount to giving it a free rein.

With reference to the comments on the Supreme Court's judgment

of 13 February 1989, published in the Danish Law Journal on 20 January

1990, the Government furthermore submit that the Danish Penal Code is

not applied automatically in respect of press reports and articles.

Consideration for freedom of expression and freedom of the press makes

it natural to weigh the need for protection of the individual against

the public's right to be informed. The result must depend on which

consideration is found to carry most weight in the specific

circumstances.

In the present case the Government maintain that the statements,

which were intended to be made to a wider circle, were nothing but a

number of inarticulate defamatory remarks and insults made by

representatives of a quite insignificant group of young persons whose

opinions could hardly be of interest to many people. Therefore, so the

Government contend, the weighing of the opposing interests lead to the

conclusion that the programme did not have such a news or information

value that it could justify, in relation to the protection against

racial discrimination, the dissemination of the racist statements.

The Commission has taken cognizance of both parties' submissions.

After a preliminary examination of the case the Commission has reached

the conclusion that it raises serious issues as to the interpretation

of Article 10 (Art. 10) of the Convention and that these issues can

only be determined after a full examination of their merits. It follows

that the application cannot be regarded as manifestly ill-founded

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

No other ground for declaring it inadmissible has been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Deputy to the Secretary Acting President

to the Commission of the Commission

(K. ROGGE) (J.A. FROWEIN)

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JERSILD v. DENMARK

JERSILD v. DENMARK

LEXI