RESOLUTION DH (98) 205

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 25 NOVEMBER 1993 IN THE CASE OF HOLM AGAINST SWEDEN

(Adopted by the Committee of Ministers on 10 July 1998 at the 637th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),

Having regard to the judgment of the European Court of Human Rights in the Holm case delivered on 25 November 1993 transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 14191/88) against Sweden, lodged with the European Commission of Human Rights on 24 January 1987 under Article 25 of the Convention by Mr Carl G. Holm, a Swedish national, and that the Commission declared admissible the complaint that a libel action, brought by him under the Freedom of the Press Act 1949 ( Tryckfrihetsförordningen ) against the author and the publisher of a book, was not determined by an independent and impartial tribunal on account of the political nature of the case and, in particular of the jury assisting the court in deciding it;

Recalling that the case was brought before the Court by the Commission on 11 December 1992 and by the Government of Sweden on 15 February 1993;

Whereas in its judgment of 25 November 1993 the Court :

_ held, by seven votes to two, that there had been a violation of Article 6, paragraph 1 of the Convention;

_ held, unanimously, that Sweden was to pay, within three months, 125 000 Swedish kronor to the applicant for legal costs, less 5 650 French francs to be converted into Swedish kronor at the rate applicable on the date of delivery of the present judgment;

_ dismissed, unanimously, the remainder of the claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 of the Convention;

Having invited the Government of Sweden to inform it of the measures which had been taken in consequence of the judgment of 25 November 1993, having regard to Sweden's obligation under Article 53 of the Convention to abide by it;

Whereas, during the examination of the case by the Committee of Ministers, the Government of Sweden gave the Committee information about the measures taken in order to prevent new violations of this kind, which information appears in the appendix to this resolution;

Having satisfied itself that on 6 January 1994, within the time-limit set, the Government of Sweden paid the applicant the sum provided for in the judgment of 25 November 1993,

Declares, after having taken note of the information supplied by the Government of Sweden that it has exercised its functions under Article 54 of the Convention in this case.

Appendix to Resolution DH (98) 205

Information provided by the Government of Sweden

during the examination of the Holm case

by the Committee of Ministers

After a careful study of the problems raised by the Holm case and their possible implications for the Freedom of the Press Act 1949, the Government of Sweden has reached the conclusion that the problem raised by the Holm case can be solved within the framework of the existing Swedish legislation.

The Government notes first that cases with strong political implications such as the Holm case are extremely rare. However, if a similar case was to be brought before the courts, these ought to be able to solve the problem by applying the general rule of disqualification in the Code of Judicial Procedure, which applies also to jurors, in the light of the case-law of the European Court of Human Rights under Article 6, paragraph 1, of the Convention, and in particular that contained in the Holm judgment (a summary in Swedish of which has been published in Svensk Juristtidning ). The Government presented this conclusion and the reasoning behind it in a Bill concerning the scope of constitutional rules on freedom of expression, (1997/98:43, pp. 132-135) which was submitted to Parliament in December 1997.

The Government stresses that it has reached this conclusion in the light of the fact that both the Convention and the jurisprudence of the European Court are part of the Swedish legal order and have to be applied by the courts and authorities in accordance with the Incorporation Act (SFS [the Official Journal] 1994:1219), which reinforced the earlier jurisprudence of the Supreme Court (see, for example, NJA 1988 p. 572, NJA 1989 p. 131, NJA 1991 p. 188 and 1994 p. 290)).

In the light of this situation the Government considers that there is no risk of any new violations similar to that found in the present case and that Sweden has accordingly complied with its obligations under Article 53 of the Convention.