Resolution ResDH (2002)71 concerning the judgment of the European Court of Human Rights of 25 November 1999 in the case of Nilsen and Johnsen against Norway

(Adopted by the Committee of Ministers on 24 June 2002 at the 798th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the final judgment of the European Court of Human Rights in the Nilsen and Johnsen case delivered on 25 November 1999 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention;

Recalling that the case originated in an application (No. 23118/93) against Norway, lodged with the European Commission of Human Rights on 2 November 1993 under former Article 25 of the Convention by two Norwegian nationals, Mr Arnold Nilsen and Mr Jan Gerhard Johnsen , and that the Commission declared admissible the complaint relating to a disproportionate interference with the applicants’ right to freedom of expression, on account of their having been held liable in civil proceedings for defamation, in 1992, following the publication of certain critical opinions on questions of general interest;

Recalling that the case was brought before the Court by the Commission on 24 November 1998 and by the government of the respondent state on 21 January 1999;

Whereas in its judgment of 25 November 1999 the Court:

- held, by twelve votes to five, that there had been a violation of Article 10 of the Convention;

- held, by thirteen votes to four, that the finding of violation of Article 10 in itself constituted adequate just satisfaction of the non-pecuniary damage alleged by the applicants;

- held, by twelve votes to five that the government of the respondent state was to pay the applicants, within three months, for pecuniary damage 375 000 Norwegian kroner ; for costs and expenses, 465 000 Norwegian kroner ; for additional interest, 50 000 Norwegian kroner and that simple interest at an annual rate of 12% would be payable from the expiry of the above-mentioned three months until settlement;

- dismissed, unanimously, the remainder of the applicants’ claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 25 November 1999, having regard to Norway’s obligation under Article 46, paragraph 1, of the Convention to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment (this information appears in the appendix to this resolution);

Having satisfied itself that on 25 January 2000, within the time-limit set, the government of the respondent state had paid the applicants the sums provided for in the judgment of 25 November 1999,

Declares, after having taken note of the information supplied by the Government of Norway, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH (2002)71

Information provided by the Government of Norway during the examination of the Nilsen and Johnsen case

by the Committee of Ministers

In response to the three recent cases concerning freedom of expression in Norway ( Blådet Tromsø A/S and Pål Stensås , judgment of 20 May 1999; Nilsen and Johnsen , judgment of 25 November 1999 and Bergens Tidende , judgment of 2 May 2000), the Norwegian Government wishes to submit the following information to the Committee of Ministers.

As regards the consequences for the applicants ’ civil liability for defamation which was found by the European Court of Human Rights to be contrary to Article 10 of the Convention, the sums paid by the applicants as a sanction have been fully reimbursed through the payment of the just satisfaction awarded. The judgments have not given rise to any mention in the judicial records of the applicants. In this connection, it should be recalled that Norwegian law allows for the reopening of proceedings following a judgment of the European Court both in criminal and civil cases. Thus, should the applicants still suffer from any adverse consequence of the violations found by the Court, they can obtain a full remedy through domestic means.

As regards the measures taken to prevent new violations from occurring , it should be noted that according to the Human Rights Act of 21 May 1999 (No. 30), the European Convention on Human Rights, as interpreted by the European Court, enjoys direct effect in Norwegian law. This Act also covers the Convention’s Protocols No. 1, 4, 6 and 7, as well as the United Nations’ Covenant on Civil and Political Rights (and its protocols) and the Covenant on Economic, Social and Cultural Rights. The provisions of these instruments prevail over national statutory law in the event of conflict.

In particular, as regards the execution of the present cases, the Norwegian Supreme Court adapted,

in a judgment of 25 February 2000 ( Straffesak snr . 8/1997, Inr . 12B/2000), its interpretation of the offence of defamation to the requirements of Article 10 of the Convention, as interpreted by the European Court in the cases Blådet Tromsø A/S and Pål Stensås and Nilsen and Johnsen . Furthermore, immediately after the judgment of the European Court in the Bergens Tidende case, on 2 May 2000, the President of the Supreme Court indicated in a press release that the Supreme Court would adapt its case-law to the principles emerging from the Strasbourg Court’s judgments.

In order to facilitate the direct application by the Norwegian courts of the principles enounced by European Court in these cases, summaries and comments of the judgments have also been published in Norwegian in legal magazines, among which “ Kritisk Juss ” (No. 2000 (27) 3, p. 223-260), “ Mennesker og rettigher ” (No. 3/2000, p. 278-279), “ Rett & Slett ” (No. 2/2000, p. 22-23), “ Ju&Nytt ” (No. 5/2000, p. 1-2), while the attention of the judges has been drawn to the fact that the full text of the judgments, in English, was available on the Strasbourg Court’s website ( www.echr.coe.int ), which is also directly accessible from the Norwegian official site www.domstol.no , presenting the Norwegian court system.

The Government considers that, taking into account the language skills of Norwegian judges and the generalised availability of Internet connections in Norwegian courts, the above measures are sufficient to prevent new violations of the same kind as that found in the judgments of Blådet Tromsø A/S and Pål Stensås of 20 May 1999; Nilsen and Johnsen of 25 November 1999 and Bergens Tidende of 2 May 2000 and that Norway has, accordingly, complied with its obligations under Article 46, paragraph 1, of the Convention in this respect.

In addition, the Government wishes to point out that in September 1999, a Governmental Commission, appointed by Royal Decree of 23 August 1996, delivered a proposal for a revised Article 100 of the Norwegian Constitution, with a view to strengthening the protection of the right to freedom of expression. The Commission proposed inter alia , the following amendment: “no person may be held liable in law for the reason that a statement is untrue if it was uttered in non-negligent good faith” . In September 2000, the Norwegian Government presented a White Paper to the Storting , presenting alternative proposals for amendments of the Constitution. All the proposals were submitted to the Storting , before the last elections, so that a decision now may be taken (cf. Article 112 of the Constitution). In order to facilitate this decision, the Government will present a new White Paper to the Storting in 2003.

The Commission also proposed that the sections concerning defamation in the General Penal Code should be revised, inter alia that the distinction between statements regarding facts and statements containing value judgments should be made clear in the legislation. A revision of these sections has also been proposed by another Governmental Commission, which has recently delivered a proposal for a total revision of the General Penal Code. All these proposals will be considered at a later stage.