DISSENTING OPINION OF JUDGE ROZAKIS

I am regretfully unable to follow the majority of the Court and find a violation of Article 10 in this case. I believe that this is a case where the courts in Norway acted correctly by properly weighing the conflicting interests of the parties involved in the dispute, in proceedings concerning defamation of an individual by two police officers.

I would like to start the discussion on my dissenting view by identifying the statements of the policemen that I consider not only defamatory, from a domestic-law point of view, but also not covered by the protection of the freedom of expression enshrined by Article 10 of the Convention. These are the statements of the second applicant that (a) “until the contrary has been proved, I would characterise this as a deliberate lie” and (b) “there must be other ulterior motives. It appears as if the purpose has been to undermine confidence in the police”. The first can be regarded, as the Court rightly said, “as an allegation of fact susceptible of proof, for which there was no factual basis and which could not be warranted by Mr Bratholm’s way of expressing himself”, while the second was aimed at casting doubt on the integrity, impartiality and good faith of Mr Bratholm, and to affect adversely his reputation. These two statements would have sufficed, to my mind, to lead the Norwegian courts to the sanction imposed, and our Court, correspondingly, to find a non-violation of Article 10. The fact that the latter has, while distancing itself from the first statement, opted for finding a violation in the present case, obliges me to append my dissent to the judgment.

The reasons which have led me to a different conclusion from that of the majority of the Court are the following:

(a) The nature of the speech that we have been called upon to protect in this case does not necessarily belong to the highest “echelon” of the speech that, according to the Strasbourg case-law, merits protection under Article 10 of the Convention. Indeed it does not enter within the sphere of the freedom of the press; it is not even, properly speaking, political speech. The interests protected by the expression of the two policemen are basically trade-union interests within the framework of a discussion of a matter of public concern. Although the criminally sanctioned statements were uttered in the course of a debate of more general public interest, their aim was to protect the particular interests of a professional body – the Norwegian police.

(b) The person against whom the speech was directed was a private person, an individual whose main aim was to establish the responsibility of the police in respect of instances of ill-treatment by the latter, through research into the matter and using scientific techniques. The exchange of views between the two parties – Mr Bratholm and the police – became heated, and Mr Bratholm may be considered as having also contributed to the increase of tension during the debate. Yet, it should not be forgotten that Mr Bratholm was not a politician and could not be equated with a politician, and that the character of his speech was heavily influenced by the strong language used by the Norwegian police to attack his views. In any event, the character of Mr Bratholm’s expressions, although severely criticising the Norwegian police, never deteriorated to the level of personal insults and statements degrading the honour of specific persons. I should also add, at this juncture, that Mr Bratholm was careful enough to underline that his accusations against the Norwegian police, documented by pieces of evidence, were not directed generally against the force as such, but against a minority of policemen whom he considered responsible for the ill-treatment of citizens.

(c) The Norwegian courts imposed sanctions on the applicants which were proportionate to the legitimate aim pursued, namely the protection of the reputation of Mr Bratholm. It should be recalled that the Supreme Court of Norway, which was the last court having dealt with the matter, upheld the City Court’s judgment, declaring the statements in question null and void and ordering that the first applicant pay compensation to the plaintiff. The second applicant did not pay compensation, because the plaintiff’s compensation claim against him had been submitted out of time. It is obvious that the applicants did not suffer any other inconvenience, or a criminal conviction, imprisonment, etc.

Under these circumstances and for the reasons explained, I consider that Article 10 of the Convention has not been violated. I should, in conclusion, stress that all European legal systems, in their effort to protect the reputation of individuals, provide for defamation as a criminally punishable offence. This homogeneity of the European legal systems must be taken into account when our Court deals with matters of violations of Article 10, because it represents a common denominator, a common stance of the European States vis-à-vis a specific type of human behaviour. Although the Court is not obliged to conclude that defamation proceedings and the ensuing convictions are always and indiscriminately justified, in application of paragraph 2 of Article 10, the common approach of the European States in this matter is a factor to be seriously taken into account when weighing the various rights and interests involved in Article 10 cases.

DISSENTING OPINION OF JUDGES Kūris, Türmen, Strážnická and Greve

We formed part of the minority which voted against the finding of a violation of Article 10 of the Convention in this case.

The case concerns freedom of expression, not freedom of the press. Article 10 § 2 of the Convention sets out the limits of the permissible restrictions on freedom of expression. The question in this case is whether the interference complained of by the applicants was “necessary in a democratic society”, that is whether:

– it corresponded to a pressing social need,

– it was proportionate to the legitimate aim pursued, and

– the reasons given by the national authorities to justify it are relevant and sufficient.

National authorities, in particular the courts, have a certain margin of appreciation in assessing whether such a need exists and what measures should be adopted to deal with it. This Court’s function is to review the latter and give a final ruling as to whether a restriction is reconcilable with freedom of expression as protected by Article 10.

The restrictions imposed in the present case derived from five of the applicants’ statements reported in the Norwegian press being declared null and void and the first applicant being ordered to pay compensation to Professor Bratholm (the latter’s compensation claim against the second applicant being time-barred).

In short, the case concerns the language used by two members of the police force in Bergen in a long-lasting and heated debate over research-based allegations of police brutality – or more precisely the use of excessive force – in Bergen. Professor Bratholm entered the debate as a member of a government-appointed commission of inquiry set up to examine the matter. He later acted outside this official framework and pursued the issue, participating in the public debate also in his capacity as a criminal-law specialist. The two members of the Bergen police force – that is members of the very police force under scrutiny/investigation – held office in the local and the national police association respectively.

Before addressing the specifics of the case, we wish to emphasise the ever present and vital need for every society to exercise strict supervision over all use of force in the name of society. States have a monopoly over

force to protect democracy and the rule of law in society, but this monopoly also entails the danger of force being abused to the detriment of the very values it is meant to uphold. The abuse of force by officials is not just one of many issues of broad general interest, it is considered to be a matter of primary concern in any society. It suffices to recall the provisions in the 1984 United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Norway is a Party to that Convention and has to abide by its provisions. The European Convention on Human Rights provides in Article 53 (“Safeguard for existing human rights”):

“Nothing in [the ] Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.”

By virtue of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Norway has undertaken to prevent in any territory under its jurisdiction not only torture but also other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity (Article 16 § 1); the State shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture or other form of cruel, inhuman or degrading treatment or punishment has been committed (Article 12); the State shall, moreover, ensure that any individual who alleges that he has been subjected to torture or other forms of cruel, inhuman or degrading treatment or punishment has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities, and steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given (Article 13).

In the present case we cannot ignore the fact that Professor Bratholm was attacked by the applicants because of his work on alleged police brutality in Bergen. The purpose of these attacks was to suppress the debate on this issue which was of vital public concern. As Justice Bugge of the Norwegian Supreme Court stated in his concurring opinion: “I accept that there is a need to provide the best possible terms for a debate on ‘matters of public concern’ and that [such a debate] might suffer if statements such as those dealt with in this case are not declared null and void, even if their background is taken into consideration.”

The Oslo City Court and the Supreme Court of Norway found the applicants’ statements that were declared null and void to be defamatory, unlawful and not proved to be true.

The four impugned statements on which we disagree with the majority were made at different times; they were as follows:

On 15 May 1986 an interview with Mr Jan Gerhard Johnsen was published by Dagbladet , an Oslo-based newspaper. The interview included the following:

1.1 “He describes Professor Bratholm’s recent report on police brutality in the Bergen police force as ‘pure misinformation intended to harm the police’.”

1.3 “There must be other ulterior motives. It appears as if the purpose has been to undermine confidence in the police.”

Mr Johnsen, as mentioned above, himself worked in the Bergen police force – against which the allegations of police brutality were made – and he was Chairman of the Bergen Police Association ( Bergen Politilag ). In the same interview he made the statement 1.2 on which we agree with the findings of the majority.

On 2 March 1988 an interview with Mr Arnold Nilsen was published by Annonseavisen , a newspaper circulated for free to every household in Bergen. The interview, inter alia, read:

2.2 “In my view, one is faced with a form of skulduggery and private investigation where there is good reason to question the honesty of the motives.”

On 7 June 1988 Mr Nilsen’s opening address to the annual general assembly meeting of the Norwegian Police Association was published by Bergens Tidende , a Bergen-based newspaper. It included, inter alia :

2.3 “The Norwegian Police Association will not accept ... private investigations on a grand scale made by dilettantes and intended to fabricate allegations of police brutality, which are then made public.”

Mr Nilsen himself worked in the Bergen police force – against which the allegations of police brutality were made – and he was Chairman of the Norwegian Police Association ( Norsk Politiforbund ).

As regards all the five statements it is obvious that the two applicants when speaking wore more than one hat. They were part of the police force under scrutiny/investigation and at the same time they held office in the local or national association of that force. Thus, statement 2.3 was made to the annual general assembly of the national police association. Notwithstanding this, none of the statements has been demonstrated actually to have been made on behalf of the police associations . Conversely, the press releases and statements from the police as such presented to this Court were carefully worded to balance the need for the police service to maintain respect and a good general reputation and the need for whatever were untrue allegations to be properly dismissed. We appreciate that particularly the role of Mr Nilsen, holding office in the national police association when working in the Bergen police force as he did, cannot have been easy.

Under these circumstances we do not share the findings of the majority to the effect that, at the time when the Norwegian courts adjudicated on the applicants’ case, there was some factual basis for their statements that false and fabricated allegations of police brutality had been made. Both of the applicants worked inside the force in question – about which the final conclusion was that

“the occurrence of unlawful use of force by the Bergen police force had been established ... and that, although this concerned very few police officers, the extent of the misconduct was problematic”.

This conclusion, which was reached by the Oslo City Court, was based, inter alia , on witness statements from police officers who worked or had worked within the Bergen police force. With insider knowledge of this very police force the applicants could both at the very least – already when the statements were made in 1986 (statements 1.1 and 1.3) – have known that Professor Bratholm’s allegations ought to merit a proper investigation.

Mr Nilsen’s statements (statements 2.2 and 2.3) were made after the investigation of November 1986 to May 1987 ordered by the Prosecutor-General. This investigation was based on the allegations made in the material from Professor Bratholm and others, but was supplemented during the course of the investigation by additional information. A total of 368 cases were registered and some 500 persons interviewed, including 230 officers and officials from the police service. The outcome of the investigation was that:

– 264 cases were dropped as there was found to be no criminal offence;

– 45 cases were not prosecuted due to the lack of solid evidence;

– 46 cases were not prosecuted as they were time-barred;

– 12 cases were not prosecuted for other reasons;

– one case was eventually tried in court and the accused was acquitted.

Thus, a total of 104 cases turned out to be of some substance. The findings of the investigators were made public at a press conference attended by Mr Nilsen.

The applicants argued only that under the Convention the statements should be allowed as far as they had some factual basis and were not made in bad faith. We find it to be of significance that neither of the two applicants has expressly stated that he was acting in good faith when he made his statements.

At the time when Mr Nilsen made his statements, a number of informants who had alleged excessive use of force by members of the Bergen police force had already been formally reported by the latter for having given false statements.

After the investigation, 50 to 60 of the informants who had alleged police brutality were investigated for having provided false information. Of these 15 were indicted and 10 were convicted. Seven of those convicted who were given prison sentences (one a suspended prison sentence only) – they were all convicted between 2 November 1988 and 23 May 1990 – later had their cases retried by the Norwegian Supreme Court and were all acquitted on 16 January 1998. In the meantime they had already served their prison sentences. We find this relevant to this case, in particular because it proves that Justice Bugge was right in his predictions in his concurring opinion in the Norwegian Supreme Court.

The language used in each of the impugned statements made by the applicants was, as recognised by our colleagues in the majority, de facto capable of affecting Professor Bratholm’s reputation. Furthermore – and that we find significant to the Court’s test under Article 10 of the Convention – each statement, by the very influence it could have on the reputation of Professor Bratholm, had a strong potential for denying or hampering the urgent social needs as spelled out in the provisions of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment quoted above. A potential that was demonstrated in the later “boomerang cases” – informants on police brutality actually had to serve prison sentences and wait for a decade or more to see justice done.

We share the finding of the Norwegian Supreme Court that the impugned statements were statements of fact that were capable of being proved. All five statements were, in our opinion, essentially different ways of saying that Professor Bratholm was deliberately not telling the truth. The intention with all the statements was the same, and one that does not correspond to the purpose of the police or its associations.

It seems to us that two separate cases of freedom of speech are involved in the present case. One is the freedom of speech of Professor Bratholm to publish the results of his research as to alleged police brutality in Bergen. The second is the freedom of speech of the applicants as representatives of the police force endeavouring to intimidate Professor Bratholm and to cover up any police brutality as may have occurred in Bergen. It appears clear to us that between these two conflicting freedoms the public interest lies in protecting Professor Bratholm’s freedom of expression against defamation and intimidation by the police association.

Against this background we would hold that there has been no violation of Article 10 of the Convention in the present case. We find that the interference complained of by the applicants was “necessary in a democratic society”, that is, the interference corresponded to a “pressing social need” and was proportionate to the legitimate aim pursued and the reasons given by the Norwegian Supreme Court are relevant and sufficient.

The contrary conclusion will in our opinion have the consequence in practice of allowing debates on matters of public concern to be suppressed by defamatory remarks and as such does not contribute to enhancing freedom of expression in the States Party to the Convention.

[1] 1-2. Note by the Registry. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[2]

[3] 1. Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but copies of the Commission’s reports are obtainable from the Registry.