DISSENTING OPINION OF JUDGES RYSSDAL AND WILDHABER

Reference has been made to the fact that the defendants could opt for a trial by jury against the applicant ’ s wishes, that an affirmative answer by the jury as to whether the impugned statements constituted an offence required the votes of a special majority, and that the jury had the final say in the event of an acquittal. However, such rules can certainly not constitute a reason for fearing a lack of independence and impartiality on the part of the jurors.

The sole criterion for election as a juror under the Swedish system is that the person concerned must be known for his or her soundness of judgment, independence and fair-mindedness. The elected jurors are considered to represent the opinion of the people in cases concerning freedom of the press. There is nothing in the present case to indicate that the challenged jurors did not fulfil this criterion.

The applicant has not contested the jurors ’ subjective impartiality.

What remains to be determined is the extent to which political involvement of a judge may, from an objective standpoint, disqualify him from taking part in the examination of a case having political implications. It has been taken for granted by the Swedish legislator that jurors in their role as adjudicators disregard their political opinions. If not, they do not perform their duty to act with the same independence and impartiality as judges. In this respect there is scarcely any difference between a juror, an ordinary lay assessor and a legally trained judge. They are all expected to perform their duties in the courts with independence and impartiality. Under various legal systems judges are appointed even though their political leanings may be well known before their appointment.

It is true that it is normal practice in Sweden for jurors to be elected among people with some political experience, and for them to be or have been active as members of a political party. Moreover, and somewhat strangely, their respective party affiliation is marked against their names on the list of jurors.

The statutory rules on disqualification of judges in the Swedish Code of Judicial Procedure also apply to any person included on the list of jurors. Several specific grounds for disqualification are enumerated in the code, and a judge shall also be disqualified "if some other particular circumstance exists which is likely to undermine confidence in his impartiality in the case" (see paragraph 21 of the judgment). Relying on this rule in the domestic proceedings the applicant requested the District Court to disqualify all those on the list of jurors who were members of the SAP, maintaining that Tidens förlag AB was closely associated with the SAP. However, the District Court came to the conclusion that the reasons invoked did not amount to disqualifying circumstances for the jurors concerned. The applicant appealed to the Svea Court of Appeal, which rejected the appeal.

The District Court proceeded with the election of the jury, which was composed of five members of the SAP and four members of other parties.

Admittedly, the litigation in question was of a political nature, but that is not exceptional where freedom of expression is at stake. Moreover, the removal of all members of the jury who could be said, for the sake of argument, to be prejudiced against Holm could possibly have justified the defendants in arguing that the jury was thereby prejudiced against them. On that hypothesis, therefore, either the jury system had to be abolished or a new system had to be devised.

In our opinion it cannot be assumed that the average jury member is incapable of forming an independent and impartial view as to the facts and the law. The specific circumstances in the Holm case do not lead us to a different opinion. Accordingly, we do not agree that the independence and impartiality of the District Court were open to doubt, and that the applicant ’ s fears in this respect were objectively justified.

[*]  The case is numbered 44/1992/389/467.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990.

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 279-A of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.