THIRD SECTION

DECISION

Application no. 38638/02 by Trygve HEGNAR and Periscopus AS against Norway

The European Court of Human Rights (Third Section), sitting on 14 October 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr R. Türmen , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , Mr K. Traja, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 16 May 2000 ,

Having regard to the formal declarations accepting a friendly settlement of the case.

Having deliberated, decides as follows:

THE FACTS

The first applicant is Mr Trygve Hegnar, the editor-in-chief of a Norwegian financial journal named Kapital . He was born in 1943 and lives in Oslo . The second applicant is his stock company, Periscopus AS , which is the publisher of Kapital . They are repres ented before the Court by Mr A. C. Ryssdal, a lawyer practising in Oslo . The Government are represented by Mr H. Harborg, of the Attorney-General ' s Office (Civil Matters), as Agent.

The facts of the case, as submitted by the applicants, may be summarised as follows.

Kapital is a well-established journal of 25 years ' standing in the Norwegian financial press, known for its investigative journalism and critical style.

On 17 June and 18 November 1994 and on 28 April 1995 the journal published three articles that gave rise to defamation proceedings brought against the applicants by Mr P. and by a company named Interfil AS , an industrial company producing air filters and based in Sjåk Municipality in the Northern Gudbrands d al. Mr P. was the company ' s manager and owned 17% of its shares. He was also a local leader of T he Conservative Party ( Høyre ) and of the latter ' s political group in Oppland Regional Council ( fylkesting ). The articles covered certain events in Sjåk Municipality highlighting the crossroads between local politics, public services and private business, namely to what extent commercial firms owned and run by elected local politicians had been the recipients of public grants.

On 6 November 1995 Mr P. and Interfil brought defamation proceedings against the applicants before the Northern Gu db rands d al District Court ( herredsrett ). By a judgment of 18 December 1996, it concluded that the first two articles, but not the third, were defamatory and ordered the applicants, jointly and severally, to pay to Interfil 350,000 Norwegian kroner (NOK) in compensation for pecuniary damage, NOK 50,000 for non-pecuniary damage; and to Mr P. NOK 3,900 for pecuniary damage (expenses for physiotherapy due to stress) and NOK 200,000 for non-pecuniary damage. In addition it ordered the applicants to pay NOK 309,420 for legal costs.

Both the applicants and the plaintiffs appealed against this judgment to the Eidsivating High Court ( lagmannsrett ) , which by a judgment of 4 January 1999 upheld the lower court ' s conclusions on the merits of the defamation issues. The High Court rejected Mr P. ' s claim for NOK 3,900 for pecuniary damage but upheld the District Court ' s decision to award him NOK 200,000 for non-pecuniary damage. As regards Interfil , it reduced the award of pecuniary damage to NOK 100,000 and upheld the award of NOK 50,000 for non-pecuniary damage. It further ordered the applicants to pay sums totalling NOK 309,420 for legal costs incurred before the District Court, plus interest, and NOK 200,000 for costs incurred before the High Court. On the other hand, the plaintiffs, not having succeeded with their counter appeal, were ordered to pay the applicants NOK 70,884 for their costs.

On 18 November 1999 the Appeals Selection Committee of the Supreme Court refused the applicants leave to appeal.

COMPLAINT S

The applicants complained under Article 10 of the Convention that the High Court ' s judgment of 4 January 1999 , with respect to which the Appeals Selection Committee of the Supreme Court refused them leave to appeal on 18 November 1999 , entailed an interference with their right to freedom of expression that could not be regarded as necessary in a democratic society.

THE LAW

On 15 January 2004 the Chamber decided to give notice of the application to the Government of Norway and to invite them to submit written observations on the admissibility and merits of the case by 13 April 2004 . Subsequently the Agent of the Government informed the Section Registrar about the existence of a dialogue between them and the applicants with a view to reach a friendly settlement in the case, in the light of which the Government were granted extensions of the time-limit for the submission of their written observations.

On 6 May 2004 the Section Registrar received from the Agent of the Government a letter of 3 May 2004 informing the Court that the parties had successfully negotiated a friendly settlement in the case and enclosing a document of the same date entitled “F riendly S ettlement ” , which read:

“The Government of Norway declares as follows:

In light of the present day state of the law as expounded in a number of decisions by the European Court of Human Rights since 1999, the Government of Norway recognizes that the impugned judgment of 4 January 1999 by Eidsivating High Court, as upheld by the Supreme Court ' s Appeal Committee in its decision 18 November 1999, raises concerns under Article 10 of the European Convention on Human Rights.

Taking into consideration also that Norwegian courts – following the European Court of Human Rights ' judgments in 1999 and 2000 in the cases of Bladet Tromsø vs. Norway , Johnsen and Nilsen vs. Norway and Bergens Tidende vs. Norway – have adjusted their practice in this field of law significantly, the Norwegian Government does not consider it fruitful to defend the state of law which prevailed in 1999.

Consequently, the Norwegian Government has agreed to cover the pecuniary losses sustained by the applicants on account of the impugned decisions, including legal costs and applicable interest. According to a specification provided by the applicants, their losses amount to NOK 1 , 993 , 098 . 20. The Government agrees to pay that amount and applicable interest by 1 June 2004 .

The applicants Trygve Hegnar and Periscopus AS declare as follows:

Taking into account the Government ' s declaration above, and taking into account the fact that the violation of our rights has been sufficiently remedied through this declaration together with the reimbursement of our loss of NOK 1,993,098.20 due to the impugned decisions in the Norwegian courts, we do not see any reason to pursue our application in the European Court of Human Rights in the present case. Sufficient redress has been ob tained through this settlement.

Consequently, both parties declare as follows:

This document constitutes a friendly settlement of the case. The parties therefore agree that application no. 38638/02 be struck off the Court ' s lists according t o Article 39 of the Convention.

Anders Ryssdal Sven Ole Fagernæs

Attorney for the applicants Agent of the Government of Norway ”

On 3 June 2004 the Section Registrar received from counsel for the applicants a letter dated 1 June 2004 confirming that the applicants had accepted the above settlement.

The Court takes note of the arrangement agreed between the parties . It observes in particular that this occurred after the application was notified to the respondent State and before the Court had taken a decision under Article 35 of the Convention on its admissibility, thus without the Registrar having entered into contact with the parties under Rule 62 of the Rules of Court with a view to securing a friendly settlement. The Court further stresse s that any views expressed in the agreement about the interpretation of the Court ' s case-law and certain implications for the Norwegian legal order are those of the parties alone. That being so, i t does not find in the concrete circumstances of the present case that respect for human rights as defined in the Conv e ntion and the protocols requires it to continue the examination of the application (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).

For these rea sons, the Court unanimously

Decides to strike the application out of its list of cases.

Vincent Berger Georg Ress Registrar President