DISSENTING OPINION OF JUDGE KOVLER

I regret to be unable to share the opinion of the majority that there has been no violation of Article 6§1 of the Convention in this case.

The fact that on 23 May 1991 the Chief Superintendent reported the applicants and the TV station to the police for defamation means that the criminal proceedings against the applicants commenced on this date, although the applicants were formally charged only in January 1993. Since the proceedings came to an end on 28 October 1998 this means, in my view, that the total length of the proceedings was seven years and five months. Neither the complexity of the case, nor the applicants' conduct could be regarded as necessitating such length of criminal proceedings which, by their very nature, caused distress, frustration and anxiety to the applicants. The City Court's judgment was not pronounced before 15 September 1995 and included periods of inactivity which could not be explained by any responsibility of the applicants as a cause of the length of the proceedings. In addition, the fact that the applicants appealed immediately against the City Court's judgment on 15 September 1995 whereas the prosecuting authorities did not send the notice of appeal to the High Court until 15 April 1996, i.e. seven months later, without any well-founded explanation, is sufficient for me to conclude that the length of the proceedings did not satisfy the “reasonable time” requirement.

PARTLY DISSENTING OPINION OF JUDGE ROZAKIS JOINED BY JUDGE KOVLER AND JUDGE STEINER

With regret I am not in a position to follow the majority's finding that in the circumstances of the case there has been no violation of Article 10 of the Convention. Such a finding weakens considerably, to my mind, the role that the press enjoys in a democratic society to exercise close and vigorous control over matters of public interest and concern.

It seems to me that the three elements which must be retained here when we assess the weigh of the various interests involved, under paragraph 2 of Article 10, are:

a) The already mentioned particular role of the press in a democratic society. As it has been consistently repeated, although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty (not simply its right) is to impart information and ideas on all matters of public interest, in a manner which sometimes may include a degree of exaggeration or even provocation. Thus, as the Court has stated, the national margin of appreciation is circumscribed by the interest of a democratic society in enabling the press to exercise its vital role of “public watchdog” in imparting information of serious public concern.

b) The subject-matter of the television programme in this case was undisputedly a serious issue of public concern: a person had been convicted to 12 years' imprisonment for the murder of his wife and passed almost 10 years of his life behind the bars, before he was acquitted in 1992, as a result of the reopening of his trial. A reopening which, by the way, was elicited by the impugned television programme of the applicants.

c) The target of the applicants' criticism was the conduct of the police, and of its heads who were formally in charge of the investigation conducted against the person suspected of having killed his wife. The police is a public institution and the physical persons who constitute it and give flesh to its activities are public figures who, by no means, are immune from the public scrutin and criticism. Because of their sensitive functions, which sometimes may be very crucial for the liberty, security and the well-being of the members of a society, as a whole, policemen are in the centre of the social tension which is determined by the exercise of the State power, on the one hand, and the rights of individuals on the other hand, to be protected by excesses in the use of their power. For this reason police officers are widely exposed to the public eye, a matter which has also been accepted by the European Court of Human Rights: in a notional scale, concerning permissible interference for the protection of the rights of others, politicians seem to be the less protected, because of their particular functions, but then

public officers and the police follow suit, as a result, again, of the sensitivity of their role in the society. Although, admittedly, the concern of the Court has always been to find an appropriate balance of interests, which may not end up in hindering the police and its agents to properly exercise their duties, still at no time such a concern has led to equate the police agents with private individuals who enjoy, in the eyes of the Court, an increased protection against intrusion of the media in their private life.

We are therefore, here, in a situation where the balancing of interests involved under paragraph 2 of Article 10 is determined by the seriousness of the public concern, by the specificity of the media as the “public watchdog”, and by the wide margin of allowable criticism which is directed against the police and its agents.

Against this background, we have the factual situation: the applicants submitted that their questions in the programme “The Blind Eye of the Police” had merely implied a range of possibilities in the criticised handling of the investigation of the murder case from 1981-82, especially as regards the taxi driver's observations. The questions left it open to the viewers to decide, between various logical explanations, as to who was responsible for the failures in the handling of the murder case.

It should be observed that, in the programme “The Blind Eye of the Police” after the interview with the taxi driver, but before the pertinent questions at issue, the applicants made the following statement: “Now we are left with all the questions”. This general statement was followed by the question: “why did the vital part of the taxi driver's explanation disappear – and who in the police or public prosecutor's office should carry the responsibility for this?”. The applicants then proceeded with questions which cast doubt on the effectiveness or even the integrity of the actual persons:” Was it the two police officers who failed to write a report about it? Hardly, sources in the police tell us, they would not dare. Was it [the named Chief Superintendent] who decided that the report should not be included in the case? Or did he and the Chief Inspector of the Flying Squad conceal the witness's statement from the defence, the judges and the jury? “Why did the Chief Inspector of the Flying Squad 'phone the taxi driver shortly after the TV programme 'Convicted of Murder'? After all, the police had taken the view that the taxi driver had no importance as a witness and had filed her statement amongst the O-reports. Why did the Chief Inspector of the Flying Squad not call her in for an interview when she repeated her original explanation on the telephone? Why was the taxi driver interviewed at the Frederikshavn police station in the presence of the Chief Superintendent, which was completely at odds with the Public Prosecutor's public statement?...”

In my view, the above questions did not constitute a categorical conclusion that the Chief Superintendent had committed a serious criminal offence. The questions might have been interpreted as insinuations, but they clearly emanated from either factual information or from implications presented during the programme by, inter alia, the taxi driver describing the events as she had experienced them. Looked at against this background, I find that the applicants' statement could hardly be regarded as a fact within the meaning of Article 10 of the Convention.

Reiterating that even a value judgment without any factual basis to support it may be excessive, I should proceed to examine whether there existed a sufficient factual basis for the impugned statement in order to assess whether the interference in dispute corresponded to a “pressing social need”.

The applicants became aware before or during the production of their television programmes that the Frederikshavn police had not complied with section 751, subsection 2 of the Administration of Justice Act, which provides that a witness shall be given opportunity to read his or her statement. I should again underline that following the broadcast of “The Blind Eye of the Police” the Prosecutor General, in a letter of 20 December 1991 to the Ministry of Justice, found this non-compliance unfortunate and open to criticism and that consequently he made an agreement with the State Police Academy to produce a wider set of guidelines concerning the questioning of witnesses, which could be integrated into the Police Academy's educational material.

The applicants were in possession of a copy of the report produced by the Frederikshavn police as to the taxi driver's statement of 1981. Since it did not contain any information about her alleged observation as to having seen X and his son on 12 December 1981 about 5-10 minutes past noon , 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.

Also, when the programme “The Blind Eye of the Police” was broadcast on 22 April 1991 , the applicants were aware that the taxi driver had upheld her statement to the police on 11 March 1991 that she had already explained to the police in 1981 that she had seen X on 12 December 1981 shortly after noon .

Having regard to the foregoing, I consider that the applicants had grounds to rely on the taxi driver's statement and notably, that they had a sufficient factual basis to believe that the report of December 1981 did not contain her full statement or that there was another report.

In addition, I should note, as was not in fact disputed, that the topic raised in the programme “The Blind Eye of the Police” was being widely debated in Denmark and concerned a problem of general interest, a sphere in which restrictions on freedom of expressions are to be strictly construed. I attach some weight to the fact that the programme played a considerable role in the Special Court of Revision's decision to hear witnesses and to grant a re-opening of the case, and that X was finally acquitted.

Finally, I should reiterate that the police must necessarily accept a close scrutiny of their actions and omissions. The named Chief Superintendent was the head of the police unit that performed the investigation that led to the wrongful conviction of X. Thus, acting in an official capacity, he was, like civil servants and politicians, subject to wider limits of acceptable criticism than private individuals.

In the light of the foregoing, the grounds given for the applicants' conviction are, although relevant, not sufficient to satisfy me that the interference in the exercise of the applicants' right to freedom of expression was “necessary in a democratic society”. In particular, the means employed were disproportionate to the aim pursued: “the protection of the reputation or rights of others”. Consequently, in my view, the applicants' conviction infringed Article 10 of the Convention.