JOINT PARTLY DISSENTING OPINION OF JUDGE S ROZAKIS, TÜRMEN, STRÁŽNICKÁ, BÎRSAN, CASADEVALL, ZUPANČIČ, MARUSTE AND HAJIYEV

(Translation)

1. We voted unanimously for the finding that there had been no violation of Article 6 of the Convention in the present case. On the other hand, we cannot follow the majority as regards their decision on Article 10 of the Convention, which in our opinion has been breached.

2. In this case , the context of the application – in particular X ’ s acquittal after nearly ten years in prison following an alleged malfunctioning of the Danish judicial system, which is incontestably a serious question of general interest – supports our position. There is no need at this stage to refer to the principles governing freedom of expression and the fundamental role of the press in a democratic society, which have been reiterated by the Court throughout its case-law (se e paragraph 71 of the judgment).

3. In a judgment of 28 October 1998 , the Danish Supreme Court (by a majority) convicted the applicants under Article 267 § 1 of the Penal Code for tarnishing the honour of a chief superintendent of police. The Supreme Court held (unanimously) that the statements covered by the indictment, despite being framed as questions, had to be regarded as indictable under Article 267 and that the applicants had the requisite intention.

The applicants maintained that the questions posed by them in the programme “The Blind Eye of the Police” were to be read as a whole and in context . It would then be seen that the questions were not directed at defaming any particular person and did not contain any assertion that the c hief s uperintendent had contravened the Penal Code. In their submission, t he questions merely implied a range of possib le criticisms concerning the police handling of the investigation of the murder case in 1981-82, especially as regards the taxi driver ’ s observations and the identity of those responsible for concealing or misplacing her important witness statement.

4. We consider that the questions asked by the applicants after the interview with the taxi driver implied a range of possibilities in response to the criticisms concerning the investigation conducted by the police under the responsibility of the chief superintendent. The question why the taxi driver ’ s statement was not included in the file and the identity of those responsible were matters left open for the television viewers to provide their own answers. A careful reading of the questions raised after the interview supports our view that:

(a) after the introductory explanations and before the journalists ’ questions , the television viewers were duly warned that these were merely questions to which the applicants had no answer (“Now we are left with all the questions”);

(b) the applicants raised broad-focus and logical questions intended to cover the various possible explanations why the witness ’ s statement was not in the file and left open the possibility that the two police officers were responsible, although they added that, according to police sources, this was unlikely;

(c) they then referred to the possibility that the chief superintendent had decided not to include the witness evidence in the file, and expressed doubt as to whether he had correctly assessed the importance of the taxi driver ’ s statement, but without accusing him of contravening the Penal Code;

(d) it was only after raising these questions that the applicants entered into details (“Or did he and the c hief i nspector of the Flying Squad conceal the witness ’ s statement from the defence, the judges and the jury?”) and implicitly accused the two police officers, although, as we have pointed out, this was only one possibility among others which were evoked and left for the viewers alone to decide.

As the questions posed by the applicants after the interview were presented as possibilities, or indeed as value judgments or provocative hypotheses concerning factual information given out during the programme, we cannot agree with the majority that they amounted to an accusation that the chief superintendent had committed a criminal offence.

5. Even if the questions amounted to an allegation against the chief superintendent, the applicants, as investigative journalists reporting on an item of such high public interest, alerting the public to a possible malfunctioning of the ju dicial system, could not have been expected to prove their assertions beyond a reasonable doubt.

Admittedly, the right of journalists to impart information on questions of general interest is protected only on condition that they express their views in good faith and on a correct factual basis. However, as paragraph 81 of the judgment makes clear, the police investigation and the criminal proceedings against X were complex and not without difficulties. The applicants had also conducted a large-scale search for witnesses when preparing their programmes. The taxi driver was one of those witnesses. During the programme “The Blind Eye of the Police” she declared:

(a) that in 1981 she had told the two police officers who interviewed her about two observations she had made on the day of the murder: she had seen a Peugeot taxi (which had no relevance to the murder) and she had seen X and his son at about five or ten minutes past noon ;

(b) that she had driven behind them for about one kilometre;

(c) that she remembered the date and time so clearly because she had to attend her grandmother ’ s funeral at 1 p.m. on that da y ;

(d) that she was a hundred percent certain that she had told the police about the latter observation because her husband had sat beside her in the living room throughout the entire interview in 1981 (see paragraph 18 of the judgment).

6. The interview with the taxi driver was prepared on 4 April 1991 . The applicants were at that time aware that she, at the request of X ’ s new counsel, had been interviewed by the police on 11 March 1991 and that during that interview she had maintained that she had already told the police in 1981 that she had seen X shortly after noon on 12 December 1981. Furthermore, the applicants were in possession of a copy of the report produced by the Frederikshavn police on the taxi driver ’ s statement of 1981. Since it did not contain any info rmation about her alleged observation, the applicants confronted the taxi driver with the report during the programme. Nevertheless, the taxi driver upheld her statement that she had already told the police about this observation in 1981.

The Prosecutor General confirmed in a letter of 20 December 1991 to the Ministry of Justice that the Frederikshavn police at the relevant time had not complied with section 751(2) of the Administration of Justice Act, which provides that a witness must be given the opportunity to read his or her statement . He found this non-compliance unfortunate and open to criticism (see paragraph 25 of the judgment). B efore or during the production of their television programmes , t he applicants became aware of this non-compliance on the part of the Frederikshavn police. I n our opinion, this was another element re info rcing their reliance on the taxi driver, when the latter claimed that something was missing from the police report shown to her dur ing the second programme (see paragraph 18, previously mentioned).

7. Having regard to the foregoing, we consider that when the second programme was broadcast , on 22 April 1991 , the applicants had a sufficient fa ctual basis to believe the taxi driver ’ s version of events and to beli eve that the report of December 1981 did not contain her full statement or that there was another report. The subsequent discovery that the funeral of the taxi driver ’ s grandmother had actually taken place one hour later than the taxi driver had remembered d oes not detract from the fact that at the relevant time the applicants could reasonably assume that the funeral actually had taken place at 1 p.m. and that the taxi driver ’ s statement could thus be considered of crucial importance. The reasonableness of their belief is not to be assessed with the benefit of hindsight.

8 . In addition, some weight must be attached to the fact that the programme may have played a role in the Special Court of Revision ’ s decision to grant a re opening of the case, and the fact that X was ultimately acquitted (see paragraphs 24 and 26 of the judgment) . The fact that a person who had been sentenced to twelve years ’ imprisonment for murder and spent almost ten years of his life behind bars was later acquitted on a retrial, serves at least to confirm the high degree of public interest involved in the television programme in its endeavour to alert the public to a possible miscarriage of justice.

9. As the judgment makes clear, c ivil servants acting in an official capacity are, like politicians, subject to wider limits of acceptable criticism than private individuals. We accept that a civil servant should not be “treated on an equal footing with politicians ” ( see paragraph 80 of the judgment). However, their sensitive duties, which are frequently crucial for the liberty, security and well-being of society as a whole, place police officers at the centre of the social tension generated on the one hand by their exercise of State power and on the other by the right of the individual to be protected against the abuse of power on their part.

It seems obvious to us that a chief superintendent of police, as a senior civil servant and head of the unit which had conducted the investigation which led to X ’ s conviction, ultimately quashed, must necessarily accept, regard being had to his duties, powers and responsibilities, that his acts and omissions should be subjected to close and indeed rigorous scrutiny.

10. In short, we conclude that the justification put forward by the Danish authorities for the interference with the exercise by the applicant journalists of their right to freedom of expression, albeit relevant, were not sufficient to show that that interference was “necessary in a democratic society”.