Lexploria

The European Commission of Human Rights sitting in private on

16 October 1986, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. H. C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 June 1984 by K.

V.N. against Sweden and registered on 1 February 1985 under

file No. 11366/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Comission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows:

The applicant is a Swedish citizen, born in 1932. He is a teacher of

languages and resides at Skottorp, Sweden. Before the Commission he

is represented by his lawyer, Mr. Einar Höier Harksen of Gothenburg.

In 1981 the applicant was the owner of a business called "Persiska

Salongen" which dealt with the purchase and sale of handmade carpets.

In a local daily newspaper a number of articles appeared in October

1981 in which it was allegedly insinuated that the applicant was a

swindler, having sold fake carpets and musical instruments and that

the affair concerned millions of Swedish crowns.

Owing to the publication of these articles the applicant instituted

legal proceedings against the editor of the newspaper. In his summons

to the District Court of Halmstad (Halmstads tingsrätt) the applicant

argued that the defendants should be held legally responsible for

serious slander within the meaning of Chapter 5 Section 2 of the Penal

Code (brottsbalken) and Chapter 7 Section 4 para. 9 of the Freedom of

the Press Act (tryckfrihetsförordningen).

In its judgment of 1 June 1983, however, the District Court sitting

with a jury found that the published articles did not contain elements

which could amount to a violation of the above Acts and the

applicant's claims for legal liability and damages were accordingly

rejected.

The applicant appealed against the judgment to the Court of Appeal for

Western Sweden (Hovrätten för Västra Sverige) maintaining his

arguments submitted to the District Court. In its judgment of 14

December 1983 the Court of Appeal partly dismissed the case since,

according to Chapter 12, Section 2 para. 2 of the Freedom of the Press

Act, the jury's verdict was final and could not be reconsidered in the

Court of Appeal. Furthermore, the Court of Appeal found that no

procedural errors had been committed and thus upheld the District

Court's judgment insofar as it was competent to do so.

The applicant subsequently applied to the Supreme Court (Högsta

Domstolen) for leave to appeal against the judgment of the Court of

Appeal. He relied on his arguments before the lower instances and

further argued that the Supreme Court should consider the matter

despite Chapter 12, Section 2 para. 2 of the Freedom of the Press Act.

Before the Supreme Court the applicant also maintained that the

judgments of the lower instances had violated his human rights.

On 13 February 1984 the Supreme Court refused to grant leave to

appeal.

COMPLAINTS

The applicant has not invoked any Articles of the Convention but

submits that due to the decision of the Swedish courts he has been

denied redress in regard to the slanderous and untrue accusations

against him published in the newspaper in question. Therefore the

Swedish courts have failed to protect his right to respect for his

private and family life.

THE LAW

The applicant has complained that the Swedish courts, by their

decisions in the present case, failed to protect his right to respect

for his private and family life.

The Commission notes that the articles concerned were published by a

newspaper outside the control of the Swedish authorities and that the

respondent State therefore has no responsibility for the contents of

these articles.

Nevertheless, as the European Court of Human Rights has held in the

case of Ireland v. the United Kingdom (Eur. Court H. R. judgment of

18 January 1978, Series A No. 25, para 239), the Convention does not

merely oblige the authorities of the Contracting States to respect for

their own part the rights and freedoms embodied in it, but it also

requires them to secure the enjoyment of these rights and freedoms by

preventing and remedying any breach thereof (cf. the words "shall

secure" in Article 1 (Art. 1) of the Convention). The obligation to

secure the effective exercise of the Convention rights may therefore

involve positive obligations on a State in a number of areas, and

these obligations may involve the adoption of measures even in the

sphere of the relations of individuals between themselves.

An obligation of this kind exists, for instance, in regard to the

right to respect for private and family life guaranteed by

Article 8 (Art. 8) of the Convention (see Eur. Court H.R., X and Y v.

the Netherlands, judgment of 26 March 1985, Series A No. 91,

para. 23). However, where a question arises of interference with

private life through publication in mass media, the State must find a

proper balance between the two Convention rights involved, namely the

right to respect for private life guaranteed by Article 8 (Art. 8) and

the right to freedom of expression guaranteed by Article 10 (Art. 10)

of the Convention.

The Commission notes that the newspaper articles criticised by the

applicant dealt with a criminal investigation regarding large-scale

fraud and swindle committed through the sale of false carpets and

musical instruments. Consequently, they concerned a matter of some

public interest, and the applicant's name was not mentioned in the

articles. The Commission considers that they affected the applicant's

honour and points out that a person's honour is protected in Swedish

law by provisions on defamation in the Penal Code and in the Freedom

of the Press Act. On the basis of these provisions, the applicant

brought defamation proceedings before a court sitting with a jury

which in the present case found that there was no breach of the

provisions of the Penal Code and the Freedom of the Press Act.

The fact that the applicant was not successful in bringing proceedings

against the editor of the newspaper does not mean that the respondent

State has failed in its obligation to provide adequate protection for

his rights under Article 8 (Art. 8) of the Convention. As stated

above, it is necessary in a case of this kind to strike a balance

between the rights protected under Articles 8 and 10 (Art. 8, art. 10)

of the Convention, and the Commission finds no indication that, in

striking this balance, the court gave inadequate consideration to the

applicant's rights under Article 8 (Art. 8).

The Commission finds, therefore, 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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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N. v. SWEDEN

N. v. SWEDEN