Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14191/88

by Carl G. HOLM

against Sweden

The European Commission of Human Rights sitting in private on 9

January 1992, the following members being present:

MM.C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

SirBasil HALL

Mr.F. MARTINEZ RUIZ

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. J. RAYMOND, Deputy 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 24 January 1987

by Carl G. Holm against Sweden and registered on 6 September 1988 under

file No. 14191/88;

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 23 August 1990 and the applicant's observations in reply

submitted by the applicant on 30 November 1990, as well as the

submissions of the parties at the hearing on 9 January 1992;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish citizen, born in 1949. He is an

economist and resides at Täby, Sweden. Before the Commission he is

represented by his lawyer, Mr. Bertil Malmlöf, Stockholm.

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

summarised as follows.

A. Particular facts of the case

In 1985 a book called "Till höger om neutraliteten" ("On the

Right of Neutrality") was published by Tidens Bokförlag AB. The

author, Sven-Ove Hansson, was employed by the publishing house and had

inter alia served as an ideological consultant to the Social Democratic

Party. The aim of the book was inter alia to survey organisations and

persons on the right wing of the political spectrum. One of the

chapters in the book concerned the applicant, partly his personal

activities and partly an organisation, Contra, of which he was a

member. Contra had inter alia critically examined the Social

Democratic Party in Sweden.

On 15 April 1986 the applicant instituted private prosecution

proceedings for libel in the District Court (tingsrätten) of Stockholm

against Mr. Sven-Ove Hansson. In the same proceedings he also sued the

author and the publishing house, Tidens Bokförlag AB, claiming 200,000

Swedish crowns in damages for alleged libellous remarks in the book.

As the defendent so requested, the case was to be adjudged by a

jury in accordance with the procedure under the Freedom of the Press

Act (tryckfrihetsförordningen). On 10 November 1986 a court session

was held in order to select a jury from the list of jurors at the

Court. The list indicated the political affiliation of each juror. The

applicant immediately requested the Court to reject all members of the

Social Democratic Party (SAP) maintaining that Tidens Bokförlag AB was

closely associated with the SAP. In its decision rejecting the

applicant's request the District Court stated:

(translation)

"As reason for the request for disqualification (the

applicant) has referred to the ownership situation of

Tidens Förlag AB (in the case it is undisputed that Tidens

Förlag AB is owned completely by the ARE company which

again is owned by the labour movement) and that the company

is the 'mouthpiece' of the social democratic movement.

The company has disputed that these circumstances

constitute a ground for disqualification as alleged; the

company has furthermore denied that it is a 'mouthpiece' as

alleged.

Regardless of whether the company can be considered as a

'mouthpiece' as alleged, the District Court finds that the

reasons invoked do not amount to disqualifying

circumstances for the jurors concerned."

The applicant appealed against this decision to the Svea Court

of Appeal (Svea hovrätt) submitting that the ARE company owned all

shares in Tidens Bokförlag AB and that the SAP owned 85% of the shares

in ARE. He maintained that the case had political undertones for which

reason jurors who were members of the SAP should not be allowed to

participate.

On 4 December 1986 the Court of Appeal rejected the applicant's

appeal. The Court did not state any reasons. A further appeal against

this decision was not possible.

On 14 October 1987 the merits of the applicant's lawsuit were

examined by the District Court of Stockholm sitting with a jury of nine

members. Five of the jurors were members of the SAP and all of them

had or had had certain public assignments, appointed as members of the

SAP. By judgment of the same day the applicant's private prosecution

as well as his claim for damages were dismissed and costs were awarded

against him.

B. Relevant domestic legislation

The procedure in trials concerning offences against the freedom

of the press is regulated in the Freedom of the Press Act (tryckfri-

hetsförordningen). This Act is one of three fundamental laws that form

the Swedish Constitution. The fundamental laws differ from ordinary

laws in that they can only be adopted or amended by means of two

decisions by the Swedish Parliament. The decisions have to be of

identical wording. The second decision may not be taken until

elections for the parliament have been held throughout the country and

the newly-elected parliament has been convened.

The concept of fundamental law was developed in 1766 when Sweden

received its first Freedom of the Press Act. The present Freedom of

the Press Act was adopted in 1949 (hereinafter "the FPA").

According to the FPA, the protection of the printed word rests

on a number of basic principles. First, the FPA provides protection

against actions by the authorities to raise obstacles to the printing,

publication, or dissemination of printed matter (Chapter 1 Section 2).

Secondly, the freedom to establish new enterprises for printing,

distribution, etc. is guaranteed (Chapter 4 Section 1). Furthermore,

"any Swedish subject or any Swedish legal person shall have the right

to sell, dispatch, or otherwise disseminate printed matter, either

alone or with the assistance of others" (Chapter 6 Section 1).

The FPA provides special court procedures in cases concerning

infringements of the FPA.

The jury system

In cases concerning the freedom of the press the District Courts

are composed of three legally trained judges and of a jury, unless both

parties agree to refer the case to the court for decision without a

jury. The hearing is chaired by one of the legally trained judges who

acts as the president of the Court. In the Swedish legal system

participation of a jury occurs only in trials concerning the freedom

of the press. Lay judges may, however, participate in other cases.

Unlike ordinary court proceedings in which lay judges participate, the

task of the jury is limited to examining the question whether a

criminal offence has been committed. It has no influence on the penal

sanctions to be imposed or on the amount of damages. These questions

are decided by the professional judges.

The jury is composed of nine members. The jury's answer to the

question whether a criminal offence has been committed shall be

considered to be in the affirmative if at least six members concur in

that opinion (FPA, Chapter 12 Section 2).

If the jury finds that no criminal offence has been committed,

the defendant shall be acquitted by the District Court. If the jury

finds that a criminal offence has been committed, this question is also

to be considered by the Court. If the opinion of the Court differs

from that of the jury, the Court is entitled to acquit the defendant

or to apply a penal provision imposing a milder sanction than that

corresponding to the offence established by the jury. If an appeal is

lodged against the judgment of the District Court, the appeal court may

not depart further than the District Court from the verdict passed by

the jury (FPA, Chapter 12 Section 2).

The FPA also contains a special instruction:

(translation)

"Each person entrusted with passing judgment on abuses of

the freedom of the press or otherwise ensuring compliance

with this Act shall constantly bear in mind that freedom of

the press is fundamental to a free society, direct his

attention always more to illegality of subject-matter and

thought than to illegality in the form of expression, to

the aim rather than to the manner of presentation, and, in

case of doubt, acquit rather than convict." (Chapter 1

Section 4)

The list of jurors

According to the FPA, jurors are appointed for each County (län).

They shall be divided into two groups with sixteen jurors in the first

group and eight in the second. The jurors in the second group must be

or have been lay members of a court (FPA, Chapter 12 Section 3).

Jurors are appointed for a term of four calendar years. In each

County the jurors shall be elected by the County Council (landstinget)

or, where in the County there is a Municipality which does not belong

to any County Council, jointly by the County Council and the Municipal

Assembly (kommunfullmäktige) (FPA, Chapter 12 Section 4). The County

Council is the elected democratic assembly of a regional municipality

(landstingskommun). The jurors are elected by simple majority.

Jurors shall be selected from among Swedish nationals resident

in the County. They shall be known for soundness of judgment,

independence and fair-mindedness. Different social groups, currents

of opinion and various parts of the County shall be represented among

the jurors (FPA, Chapter 12 Section 5). There are also special rules

in the FPA about the right of jurors to withdraw from their duties and

about the consequences of a juror ceasing to be eligible (FPA, Chapter

12 Sections 6 and 7).

Complaints concerning the election of jurors shall be lodged with

the District Court, which may declare the election invalid. Even where

no complaint has been lodged, the Court shall examine the

qualifications of the persons elected (FPA, Chapter 12 Section 8).

Persons elected as jurors shall be entered in a jurors' list in which

each group shall be listed separately (FPA, Chapter 12 Section 9).

According to the 1949 Act on Certain Provisions concerning the

Proceedings in Freedom of the Press Cases (lagen (1949:164) med vissa

bestämmelser om rättegången i tryckfrihetsmål; Section 5), the jury has

to take the following oath before participating in the trial:

(translation)

"I (name) do solemnly swear and assure on my faith and

honour that I, as a member of this jury, shall, to the best

of my ability, answer the questions posed by the court and,

keep in absolute secrecy what is uttered during the

deliberations of the jury and how the jurors vote. This,

as an honest and upright judge, I will and shall faithfully

observe."

The composition of the jury for a trial

When legal proceedings in which a jury is to participate have

been initiated, the Court shall present the jurors' list and raise the

question whether there are grounds for disqualification of any person

included in the list. The legal provisions relating to the

disqualification of judges shall apply (FPA, Chapter 12 Section 10).

(See "The disqualification of a juror", below).

The jury shall then be composed of non-disqualified jurors in the

following manner: Each party has the right to exclude three jurors in

the first group and one in the second. No reason has to be given for

excluding a juror. Then the Court selects substitutes by lot among

those who remain until six jurors are left in the first group and three

in the second (FPA, Chapter 12 Section 10).

According to the FPA no person may evade the duties of a juror

without having a legally acceptable excuse (Chapter 12 Section 12).

The disqualification of a juror

The provisions relating to the disqualification of judges apply

also to the disqualification from a certain trial of any person

included in the list of jurors (FPA, Chapter 12 Section 10). The

grounds for disqualification of judges are enumerated in the Code of

Judicial Procedure (rättegångsbalken), Chapter 4 Section 13.

A judge shall be disqualified from examining a case if any of the

following circumstances are at hand:

(translation)

"1.If he is a party therein or otherwise has an interest

in its subject-matter or can expect special advantage or

damage from the outcome of the action;

2.if he and one of the parties are, or have been,

married, or are related by blood or marriage in lineal

ascent or descent, or are brothers or sisters, or are in

such a relationship by marriage that one of them is, or has

been, married to a brother or sister of the other, or if he

is similarly related to one of the parties;

3.if he is related as specified in 2. to anyone who has

an interest in the subject-matter or can expect special

advantage or damage from the outcome of the case;

4.if he, or anyone related to him as specified in 2., is

a guardian of, or otherwise serves as a representative of,

a party, or is a member of the board of a corporation,

partnership, co-operative, association or similar society,

foundation or similar institution, which is a party, or,

when a municipality or similar community is a party, if he

is a member of the board in charge or administration of the

subject area within which the case falls;

5.if he, or anyone related to him as specified in 2., is

related in the way stated in 4. to anyone who has an

interest in the subject-matter or can expect special

advantage or damage from the outcome of the case;

6.if he is the adversary of a party, though not if the

party has cast him in that role in order to disqualify him;

7.if he, acting as a judge or officer of another court,

has rendered a decision concerning the matter in dispute,

or if he, at an authority other than a court, or as an

arbitrator, has dealt with the matter;

8.if he has served in the case as an attorney for, or an

assistant to, one of the parties, or has been a witness or

an expert therein; or

9.if some other particular circumstance exists that is

likely to undermine confidence in his impartiality in the

case."

COMPLAINTS

The applicant maintains that his case against Sven-Ove Hansson

and Tidens Bokförlag AB was not determined by an independent and

impartial tribunal due to the fact that five of the jurors were members

of the SAP which was the dominant shareholder in a company owning the

defendant company. He invokes Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 January 1987 and registered

on 6 September 1988.

On 7 May 1990 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 23 August 1990

and the applicant's observations in reply were submitted on 30 November

1990.On 14 October 1991 the Commission decided to invite the parties

to appear before it at a hearing on the admissibility and merits of the

application.

Legal aid under the Addendum to the Commission's Rules of

Procedure was granted to the applicant on 13 December 1991.

At the hearing, which was held on 9 January 1992, the parties

were represented as follows:

The Government

Mr. Carl Henrik EhrenkronaMinistry for Foreign Affairs, Agent

Mr. Bertil WennbergOffice of the Chancellor of Justice,

Adviser

The applicant

Mr. Bertil MalmlöfCounsel for the applicant

Ms. Pia AttoffAdviser

The applicant, Mr. Carl G. Holm, was also present.

THE LAW

The applicant complains that the case, brought by him against the

author of a book and the publisher, was not determined by an

independent and impartial tribunal. He invokes Article 6 para. 1

(Art. 6-1) of the Convention which reads:

"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 within a reasonable time by an independent and

impartial tribunal established by law. Judgment shall be

pronounced publicly but the press and public may be excluded from

all or part of the trial in the interest of morals, public order

or national security in a democratic society, where the interests

of juveniles or the protection of the private life of the parties

so require, or to the extent strictly necessary in the opinion

of the court in special circumstances where publicity would

prejudice the interests of justice."

The applicant submits in support of his complaint, in essence,

that the author of the book in question as well as the publisher were

affiliated to the Swedish Social Democratic Party (SAP), the former

having served as an ideological consultant to the SAP and being well-

known within the party, the latter being owned by another company in

which the SAP is the sole shareholder. Furthermore, five of the nine

jurors deciding the case were members of the SAP and were politically

active, representing the party's political views, for which reason, so

the applicant submits, the tribunal deciding his case could not be

regarded as being independent and impartial as required by Article 6

para. 1 (Art. 6-1) of the Convention.

The Government submit, in essence, that the appointment of lay

judges through elections by democratic assemblies has a very long

tradition in Sweden and ensures that jurors possess the qualities

required, i.e. sound judgment, independence and fair-mindedness. The

jurors serve on the jury as independent judges regardless of which

political party they might be affiliated to. The Government maintain

that there is no proof in the present case of any subjective or

objective partiality of the jurors for which reason the applicant was

not denied the right to an independent and impartial tribunal as

secured to him by Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission has taken cognizance of both parties' written and

oral 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 6 para. 1 (Art. 6-1) of the Convention

and its application to the particular facts of the present case 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 Secretary to the CommissionPresident of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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HOLM v. SWEDEN

HOLM v. SWEDEN

LEXI