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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> HOLM v. SWEDEN - 14191/88 [1993] ECHR 58 (25 November 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/58.html
Cite as: 18 EHRR 79, [1993] ECHR 58, (1994) 18 EHRR 79
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In the case of Holm v. Sweden*,
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention")** and the relevant provisions of the Rules of Court,
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr A. Spielmann,
Mrs E. Palm,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr L. Wildhaber,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 24 June and
25 October 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* 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.
_______________
PROCEDURE
1. The case was referred to the Court on 11 December 1992 by
the European Commission of Human Rights ("the Commission") and
on 15 February 1993 by the Government of the Kingdom of Sweden
("the Government"), within the three-month period laid down in
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 14191/88)
against Sweden lodged with the Commission under Article 25
(art. 25) by a Swedish national, Mr Carl G. Holm, on
24 January 1987.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Sweden
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request and of the Government's
application was to obtain a decision as to whether the facts of
the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio Mrs E.
Palm, the elected judge of Swedish nationality (Article 43 of the
Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 29 January 1993 the
Vice-President, Mr R. Bernhardt, drew by lot, in the presence of
the Registrar, the names of the other seven members, namely
Mr Thór Vilhjálmsson, Mr F. Gölcüklü, Mr F. Matscher,
Mr A. Spielmann, Mr A.N. Loizou, Mr J.M. Morenilla and
Mr L. Wildhaber (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5),
Mr Ryssdal, through the Registrar, consulted the Agent of the
Government, the applicant's lawyer and the Delegate of the
Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received the Government's memorial on
5 May 1993 and the applicant's memorial on 10 May.
On various dates between 19 May and 10 June 1993 the
Commission filed a number of documents which the Registrar had
requested from it on the President's instructions. On 24 May the
Secretary to the Commission had informed the Registrar that the
Delegate would submit his observations at the hearing.
5. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 22 June 1993. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr C.H. Ehrenkrona, Assistant Under-Secretary
for Legal Affairs, Ministry for
Foreign Affairs, Agent,
Mr G. Regner, Under-Secretary, Ministry of
Justice, Adviser;
(b) for the Commission
Mr Gaukur Jörundsson, Delegate;
(c) for the applicant
Mr B. Malmlöf, advokat, Counsel,
Ms P. Attoff, Assistant.
The Court heard addresses by Mr Ehrenkrona,
Mr Gaukur Jörundsson, Mr Malmlöf and the applicant himself.
AS TO THE FACTS
I. The particular circumstances of the case
A. Background
6. Mr Carl G. Holm is a Swedish national. He is an
economist and resides at Täby in Sweden. At the material time,
he was employed by the Swedish Federation of Industries (Sveriges
Industriförbund).
7. In 1974 the applicant formed together with others a
foundation named Contra. According to him its aim was to
scrutinise governments of communist regimes in Eastern Europe and
the Swedish Social Democratic Workers Party (Sveriges
socialdemokratiska arbetareparti - the "SAP").
8. In 1985 a publishing house, Tidens förlag AB, published
a book entitled "Till höger om neutraliteten" (To the right of
neutrality). It contained a survey of right-wing organisations
and individuals, including a 52-page chapter on the applicant and
his involvement in Contra. The author of the book,
Mr Sven Ove Hansson, was then employed by the publisher and had
previously served as an ideological adviser to the SAP.
Tidens förlag AB was, from its foundation in 1912 until
1 January 1985, owned by the SAP directly. As of the latter
date, 85% of its shares were held by a company owned by the SAP,
namely AB Förenade Arebolagen. The remaining 15% were held by
Folkparkernas Centralorganisation which, the applicant states,
was controlled by the SAP. Tidens förlag AB is known for
publishing books and articles portraying social democratic views.
B. Institution of libel proceedings
9. On 15 April 1986 the applicant brought a private
prosecution for aggravated libel (grovt förtal), and in the
alternative for libel (förtal), against Mr Hansson in the
District Court (tingsrätten) of Stockholm, under Chapter 7,
section 4, paragraph 9, of the 1949 Freedom of the Press Act
(tryckfrihetsförordningen, an instrument forming part of the
Swedish Constitution) and Chapter 5, Articles 1 and 2, of the
Penal Code (brottsbalken). In the same proceedings he sued both
the author and the publisher for damages, claiming
200,000 Swedish kronor. He contended that the book contained
allegations implying that he belonged to certain nazi and fascist
groups, calculated to cast doubt on his honour and to expose him
to contempt; in view of the wide distribution of the book and the
applicant's central position in the Swedish Federation of
Industries, the libel was aggravated.
The impugned passages of the book included allegations
which can be summarised as follows:
(a) in 1973 the applicant had chaired the youth section
of the World Anti-Communist League's Conference in London, an
organisation whose membership was said to consist largely of
neo-nazis and former SS-members, for example the then chairman
of the nazi-oriented Swedish National Union;
(b) the applicant had, by reason of his right-wing
extremism, been expelled in 1974 from the Democratic Alliance and
the Conservative Youth Organisation; it was therefore regrettable
that he still held important positions within the Swedish
Federation of Industries and the Swedish Employers' Federation;
(c) he had been reported to the police for embezzlement
of the Democratic Alliance's funds; an audit had shown that he
had transferred 1,340 Swedish kronor from the association's
account to his own account;
(d) he had failed to dissociate himself immediately from
a co-member of a splinter group of the Democratic Alliance, who
had provided grenades to two Nordic National Party activists and
who had urged the latter to place one of the grenades in an
office of the Democratic Alliance and advised them on how to
enter the office; the activists had been convicted of having
placed the grenades and the applicant's associate of having aided
and abetted causing bodily harm;
(e) Contra had been collaborating with the
above-mentioned Swedish National Union in Lund and Malmö and the
applicant had negotiated with the latter about the setting up of
a local Contra group;
(f) organisations like Contra were infiltrated to the
highest echelons by neo-nazi groups, which selected the most
militant members of such organisations and incited them to engage
in illegal activities.
C. Constitution of a jury before the District Court and
related proceedings
10. At a sitting held by the District Court on
10 November 1986, the defendants, but not the applicant, asked for
the case to be considered with a jury. As a result of the defendants'
request, the question whether a criminal offence had been
committed was to be examined, according to the provisions of the
Freedom of the Press Act, by a jury, composed on the basis of a
list of two groups of names (see paragraphs 15, 18 and 19 below).
The list, which had been published by the Stockholm County
Council (Stockholms läns landsting), indicated the jurors'
political affiliations. The first group comprised sixteen
persons, seven of whom were members of the SAP, five of the
Conservative Party, two of the Liberal Party, one of the Centre
Party and one of the Communist Party. The second group included
eight names, of whom four were members of the SAP, two of the
Conservative Party and two of the Liberal Party.
The applicant, referring to paragraph 9 of Article 13 in
Chapter 4 of the Code of Judicial Procedure (rättegångsbalken),
filed a complaint with the District Court under Chapter 12,
section 8, of the Freedom of the Press Act, asking it to exclude
as being disqualified those jurors who were members of the SAP
(see paragraph 21 below). In support of his request, he pointed
to the position as regards ownership of Tidens förlag AB (see
paragraph 8 above) and argued that the publisher was the
"mouthpiece" of the social democratic movement. However, the
District Court rejected his request on 10 November 1986, finding
that, regardless of whether the publisher could be seen as a
"mouthpiece" as described by the applicant, the reasons invoked
by him did not constitute grounds for disqualifying the jurors
concerned.
In an appeal against this decision to the Svea Court of
Appeal (Svea Hovrätt), the applicant submitted, in addition to
the above arguments, that the contents of the book were of a
political nature and that the case had political undertones. The
Court of Appeal dismissed the appeal on 4 December 1986, without
stating any reasons. It was not open to the applicant to appeal
further against this decision (Chapter 12, section 8, of the
Freedom of the Press Act).
11. In the meantime, at the above-mentioned sitting on
10 November 1986, the District Court proceeded with the
constitution of the jury in accordance with Chapter 12 of the
Freedom of the Press Act. Exercising their right under section
10, the applicant and the defence each rejected three jurors from
the first group and one from the second group. Those eliminated
by the applicant were all SAP members and those by the defendants
were members of the Conservative Party. Lots were drawn in
accordance with the procedure described in paragraph 19 below,
and a jury of nine members was constituted. Of these, five were
members of the SAP - one of the them was subsequently replaced
by another SAP member -, two of the Conservative Party, one of
the Liberal Party and one of the Communist Party.
12. As appears from information submitted by the applicant,
which was not contested by the Government, the SAP jurors were
active members of the Party, holding or having held various
offices in it and on its behalf at local level (for further
details, see paragraph 27 of the Commission's report).
D. The findings on the merits
13. On 14 October 1987, the District Court, sitting with
three judges and a jury of nine, examined the merits of the case.
In its judgment of the same date the court noted that the jury
had replied in the negative to the questions put to it concerning
the alleged unlawfulness of the impugned passages of the book.
Accordingly, the District Court dismissed the charges made by the
applicant and his claims for damages. In view of the conclusions
reached on the merits, it ordered him to pay 67,860 Swedish
kronor in costs.
It was not possible under Swedish law for the applicant
to appeal against the jury's verdict (see paragraph 16 below).
II. The relevant domestic law and practice
A. Freedom of the Press Act
14. In Sweden freedom of expression as regards the printed
word is regulated by the 1949 Freedom of the Press Act, which has
constitutional status. The first such Act dates back to 1766.
The jury system was introduced when a revised version of the Act
entered into force in 1812. The merits of the system underwent
a thorough examination in the course of the revision which led
to the 1949 version of the Act. However, the predominant view
was that the jury system constituted an important safeguard of
press freedom in Sweden and that it should be maintained. For
similar reasons, more recent proposals to abolish the jury system
have also been resisted.
1. Organisation and jurisdiction of Swedish courts
in proceedings relating to the freedom of the
press
15. Chapter 12 of the Act contains special provisions
governing judicial proceedings instituted to establish civil or
criminal liability for prohibited statements in print
(section 1). These cases are heard by the District Court within
whose jurisdiction the county administration has its seat (Chapter 12,
section 1). It sits with three judges and, in proceedings
brought under the Act, also with a jury of nine members to
examine whether a criminal offence has been committed or whether
civil liability has been incurred, unless the parties on both
sides declare their willingness to have the issue determined by
the court without a jury (sections 2 and 14). In any event,
matters such as evidence, sentencing, damages and legal costs are
dealt with by the judges alone.
In a jury trial the District Court is presided over by a
judge. If a jury has given a negative answer to the question
whether an offence has been committed or whether civil liability
has been incurred, the defendant must be acquitted or the case
must be dismissed. If the reply is in the affirmative - and this
requires a majority of at least six members - the issue is to be
examined also by the judges. Should they disagree with the jury,
they may acquit the defendant or apply a penal provision imposing
a less severe penalty than that applied by the jury or, in civil
proceedings, dismiss the case (sections 2 and 14).
16. A judgment by the District Court may be appealed against
to the Court of Appeal, whose jurisdiction, like that of the
District Court, is limited by the terms of the jury's verdict
(Chapter 12, section 2).
17. Chapter 1, section 4, provides that any person entrusted
with the task of passing judgment on alleged abuses of the
freedom of the press must constantly bear in mind the fundamental
character of this freedom in a free society; he should attach
more attention to whether an expression is illegal by reason of
its substance rather than its form and also to its purpose rather
than to the manner in which it has been represented; where there
is doubt, he should acquit rather than convict.
2. Election of jurors
18. In each county the county council, alone or in some cases
together with the municipal council, elects jurors for a term of
four years (Chapter 12, section 4). They are divided into two
groups, one of sixteen jurors and the other of eight, the latter
being composed of persons who hold or have held positions as lay
members of the ordinary or administrative courts (section 3).
The names of jurors are entered on a list in which each of the
two groups are listed separately (section 9).
Only Swedish citizens residing in Sweden are eligible for
election as jurors. A further condition is that they be known
to be independent and fair-minded and to have sound judgment.
Different social groups and currents of opinion as well as
geographical areas should be represented among the jurors
(section 5). In practice, jurors are normally elected from among
people who have been politically active.
3. Composition of a jury
19. In proceedings involving a jury, the District Court
presents the above-mentioned list of jurors to the parties and
queries whether there exist grounds for the disqualification of
any of the jurors (Chapter 12, section 10; see also paragraph 21
below). Thereafter, each party is given the opportunity to
exclude three jurors in the first group and one from the second.
Subsequently, the District Court, by drawing lots, selects the
substitute members until there remain six jurors in the first
group and three jurors in the second group; these nine jurors
become full members of the jury (Chapter 12, section 10).
B. Other legislation
20. Chapter 11, section 2, of the Instrument of Government
(regeringsformen), which forms part of the Swedish Constitution,
provides that neither a public authority nor Parliament may
determine how a court should adjudicate or apply the law in a
particular case. Moreover, all public power must be exercised
subject to the law; courts and public authorities shall, in the
performance of their functions, ensure the equality of all
persons before the law and remain objective and impartial
(Chapter 1, sections 1 and 9). These fundamental principles
apply also to a jury sitting in a trial under the Freedom of the
Press Act.
21. The statutory rules on disqualification of judges extend
to jurors (Chapter 12, section 10, of the Freedom of the Press
Act). Chapter 4, Article 13, of the Code of Judicial Procedure
enumerates a series of specific grounds on which a judge may be
disqualified: for instance, where he is a party in the case or
otherwise has an interest in its subject-matter or can expect
special advantage or damage from its outcome; or where he is
related through family or marriage to someone in such a position;
or has been involved in the case as judge, or as lawyer or
adviser to one of the parties or as witness or expert. Pursuant
to the last provision of this Article, paragraph 9, which was the
one relied on by the applicant in the domestic proceedings, a
judge must be disqualified if some other particular circumstance
exists which is likely to undermine confidence in his
impartiality in the case.
22. According to section 5 of the 1949 Act containing certain
provisions on Proceedings relating to the Freedom of the Press
(lagen 1949:164 med vissa bestämmelser om rättegången i
tryckfrihetsmål) jurors must take the following oath before
participating in a trial:
"I, N.N., solemnly swear and declare on my faith and
honour that, as a member of this jury, I shall to the
best of my ability answer the questions put by the court
and maintain total secrecy in respect of what has been
uttered during the jury's deliberations and how the
jurors have voted. This I will and shall faithfully
observe as an honest and upright judge."
C. Internal rules of political parties imposing duties of
allegiance
23. Clause 13 of the SAP's articles of association provides
that a member may be excluded if he is disloyal to the Party,
disseminates propaganda which is evidently in conflict with its
general object and purpose or is otherwise detrimental to its
interests. SAP candidates for public office are required to
contribute through their office to the implementation of the
Party's programme. Other political parties have similar rules.
On the other hand, none of the various party rules
produced to the Convention institutions contain specific
provisions imposing obligations as to the manner in which a
member ought to carry out his tasks as a juror. It appears from
the legislation summarised in paragraphs 20 to 22 above and the
preparatory works to the 1949 Freedom of the Press Act that he
is expected to perform this role with the same independence and
impartiality as a judge (see Statens offentliga utredningar -
"SOU" 1947:60, p. 194).
PROCEEDINGS BEFORE THE COMMISSION
24. In his application (no. 14191/88) filed with the
Commission on 24 January 1987, Mr Holm alleged that his case
against Mr Hansson and Tidens förlag AB was not determined by an
independent and impartial tribunal within the meaning of
Article 6 para. 1 (art. 6-1) of the Convention.
25. By decision of 9 January 1992, the Commission declared
the application admissible. In its report of 13 October 1992
(Article 31) (art. 31), the Commission expressed the opinion, by
fourteen votes to one, that there had been a violation of
Article 6 para. 1 (art. 6-1). The full text of the Commission's
opinion and of the dissenting opinion contained in the report is
reproduced as an annex to this judgment.*
_______________
* 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.
_______________
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
26. At the hearing on 22 June 1993 the Government confirmed
the submissions set out in their memorial, in which they asked
the Court to hold that there had been no violation of the
Convention in the present case.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
27. Mr Carl G. Holm alleged that, owing to the participation
of five active SAP members in the jury at the District Court of
Stockholm, his case had not been heard by "an independent and
impartial tribunal" within the meaning of Article 6 para. 1
(art. 6-1) of the Convention, which in so far as relevant,
provides:
"In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and
public hearing ... by an independent and impartial
tribunal ..."
This claim was contested by the Government, but was
accepted by the Commission.
28. The Government disputed that the manner of composition of
the jury had given rise to a legitimate fear as to its
independence and impartiality. In their view, the question had
to be examined in the light of Sweden's legal system, its legal
traditions and political history. Since 1812 a jury system for
freedom-of-the-press cases has existed in Sweden; it had been
maintained, despite a number of proposals to Parliament to
abolish it, in order to safeguard press freedom from undue State
interference, in particular as regards political matters. The
jury system was seen as having constituted a crucial factor in
the development of democracy in Sweden.
In the present case there were admittedly certain links
between the five SAP members of the jury and the defendants.
However, these were only of a general political nature and ought
to be distinguished from those at issue in the case of Langborger
v. Sweden. In that case the Court found that a Housing and
Tenancy Court had failed to satisfy the requirements of
independence and impartiality in Article 6 para. 1 (art. 6-1),
mainly because two lay assessors who sat in the proceedings had
been nominated by, and had close links with, two associations
which both had interests contrary to those of Mr Langborger, a
party in the proceedings (judgment of 22 June 1989, Series A
no. 155, p. 16, para. 35). Unlike the lay assessors in the
latter case, the jurors in Mr Holm's case had no direct interest
in the outcome of the case, nor could the SAP be said to have had
any such interest. Moreover, it was not contended that the
jurors in question had a direct influence on or interest in the
defendant company. In fact, the only object of their role was
to ensure popular participation in the judicial process.
Finally, the Government submitted that decisive
importance should not be attached to the fact that under Swedish
law the jury had the final say in the event of an acquittal.
This rule, although it could be considered to favour the defence
in cases such as the present, was consistent with the principle
of according the printed word the benefit of the doubt, and hence
with the right to freedom of expression as guaranteed by
Article 10 (art. 10) of the Convention; indeed it might even go
further than the requirements of that Article (art. 10).
29. In the Commission's opinion, the applicant's doubts as to
the independence and impartiality of the District Court could,
in the specific circumstances of the case, be considered
objectively justified. It placed emphasis inter alia on the
links between the five SAP jurors and the two defendants in the
case and on the political nature of the disputed passages of the
book. It further noted the absence in the District Court's
judgment of reasoning indicating the objective basis for the
acquittal and the lack of a possibility of obtaining an effective
review of such a verdict on appeal.
30. In determining whether the District Court could be
considered "independent and impartial", the Court will have
regard to the principles established in its own case-law (see,
for instance, the above-mentioned Langborger judgment, Series A
no. 155, p. 16, para. 32; and the Fey v. Austria judgment of
24 February 1993, Series A no. 255-A, p. 12, paras. 27, 28 and
30), which apply to jurors as they do to professional judges and
lay judges. Like the Commission, it finds it difficult in this
case to examine the issues of independence and impartiality
separately (see also the above-mentioned Langborger judgment,
ibid.).
31. It is only the independence and the objective
impartiality of the five jurors who were affiliated to the SAP
which are in issue; the applicant did not contest their
subjective impartiality, finding it impracticable to do so in
view of the secrecy of each juror's vote (see paragraph 22
above).
It is undisputed that the jurors in question were elected
in the prescribed manner by the competent elective body, in
conformity with the legal conditions for eligibility: namely that
the persons concerned be known to be independent and fair-minded
and to have sound judgment and also that different social groups
and currents of opinion as well as geographical areas be
represented among the jurors (see paragraph 18 above). The jury
was constituted by the drawing of lots after each party to the
proceedings had had an opportunity to express its views on the
existence of grounds for disqualification of any of the jurors
on the list and to exclude an equal number of jurors (see
paragraphs 10, 11 and 21 above). It was also possible for the
parties to appeal to the Court of Appeal against decisions by the
District Court on requests for disqualification, and the
applicant, albeit unsuccessfully, availed himself of this remedy
(see paragraph 10 above). Before participating in the trial,
each juror had to take an oath to the effect that he or she was
to carry out the tasks to the best of his or her abilities and
in a judicial manner (see paragraph 22 above).
Furthermore, jurors are in several respects viewed under
Swedish law as affording the same guarantees of independence and
impartiality as judges; in particular, the provisions in the
Instrument of Government that aim at safeguarding the
independence and impartiality of the judiciary cover juries and
the statutory rules on disqualification of judges also extend to
jurors (see paragraphs 20-21 above).
Accordingly, as indicated by the Commission and the
Government, there existed a number of safeguards to ensure the
independence and impartiality of the jurors in question.
32. On the other hand, the Delegate of the Commission
stressed that under the relevant rules the defence was given the
benefit of certain safeguards that were not applicable to the
applicant. In this regard, the Court observes the following.
Firstly, the defendants could opt for a trial by jury, despite
the fact that the applicant did not wish to have one; secondly,
an affirmative answer by the jury as to whether the impugned
statements in the book constituted an offence required the votes
of a special majority of six out of nine jurors (see
paragraphs 10 and 15 above). Lastly, the jury had the final say
in the event of an acquittal; had the verdict been against the
defendants the issue would have been the subject of further
review by the District Court judges (see paragraphs 13, 15 and
16 above). It thus appears that the applicant as a private
prosecutor was placed in a less favourable position than the
defence. However, these features, most of which are typical of
a criminal trial involving a jury and which were designed to
enhance freedom of the press, do not as such constitute a
legitimate reason to fear a lack of independence and impartiality
on the part of the jurors.
Nevertheless, it is to be noted that there were links
between the defendants and the five jurors who had been
challenged by the applicant which could give rise to misgivings
as to the jurors' independence and impartiality. The jurors in
question were active members of the SAP who held or had held
offices in or on behalf of the SAP (see paragraph 12 above). One
of the defendants, the publishing house Tidens förlag AB, had
been directly owned by the SAP until 1 January 1985 - the year
when the book was published; after that date, it was owned by the
SAP indirectly through two companies (see paragraph 8 above).
The other defendant, the author, was employed by the publishing
house at the time of the book's publication and had served as an
ideological adviser to the SAP (see paragraph 8 above).
Furthermore, Tidens förlag AB was known for publishing
articles portraying opinions shared by the SAP (see paragraph 8
above). The impugned passages of the book were clearly of a
political nature and undoubtedly raised matters of concern to the
SAP in that they involved criticism of the applicant and Contra,
an organisation which had been set up to scrutinise the SAP (see
paragraphs 7 and 9 above).
33. Having regard to the foregoing, the Court considers 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. Moreover, since the Court of Appeal's
jurisdiction, like that of the District Court, was limited by the
terms of the jury's verdict, the defect in the proceedings before
the latter court could not have been cured by an appeal to the
former (see paragraphs 13 and 16 above).
In sum, there has been a violation of Article 6 para. 1
(art. 6-1) in the particular circumstances of the present case.
II. APPLICATION OF ARTICLE 50 (art. 50)
34. Article 50 (art. 50) reads:
"If the Court finds that a decision or a
measure taken by a legal authority or any other
authority of a High Contracting Party is
completely or partially in conflict with the
obligations arising from the ... Convention, and
if the internal law of the said Party allows only
partial reparation to be made for the
consequences of this decision or measure, the
decision of the Court shall, if necessary, afford
just satisfaction to the injured party."
A. Non-pecuniary damage
35. Under this provision Mr Holm sought 400,000 Swedish
kronor for non-pecuniary damage. He submitted that there could
be no doubt that he had been under psychological pressure from
the book's publication until several years after the domestic
proceedings ended. The publication, which was reported in the
press, came at a very inconvenient time when he was about to
start a new job in a new town. Bringing proceedings against the
author and the publishing house had seemed to be the only means
of regaining credibility. However, he had had little prospect
of success, the jury being composed in the way it was. His
failure to win the case had attracted extensive media coverage
and had resulted in his encountering great professional
difficulties.
36. It is not for the Court to speculate on whether the
District Court would have arrived at a conclusion in the
applicant's favour had it been composed in a different manner.
In any event, the Court agrees with the Government that the
finding of a breach of Article 6 para. 1 (art. 6-1) constitutes
in itself adequate just satisfaction in this respect.
B. Legal costs
37. The applicant also requested reimbursement of 352,500
kronor under the head of lawyer's costs, of which 170,860 were
referable to the domestic proceedings and 181,640 to those before
the Convention institutions.
The Government agreed to pay only costs in respect of the
latter, the amount to be assessed on an equitable basis.
38. As to legal costs in the domestic proceedings, the Court
is of the view that it is only in so far as they related to his
contesting the ability of the SAP members on the list to take
part in the trial that they were necessarily incurred in order
to avoid the violation found of Article 6 para. 1 (art. 6-1) of
the Convention (see paragraphs 10 and 33 above).
With regard to the above costs and those referable to the
Strasbourg proceedings, the Court, making an assessment on an
equitable basis, considers that the applicant is entitled to
recover 125,000 kronor, from which 5,650 French francs already
received from the Council of Europe by way of legal aid must be
deducted.
FOR THESE REASONS, THE COURT
1. Holds by seven votes to two that there has been a
violation of Article 6 para. 1 (art. 6-1) of the
Convention;
2. Holds unanimously that Sweden is to pay, within three
months, 125,000 (one hundred and twenty-five thousand)
Swedish kronor to the applicant for legal costs, less
5,650 (five thousand, six hundred and fifty) French
francs to be converted into Swedish kronor at the rate
applicable on the date of delivery of the present
judgment;
3. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
25 November 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the
dissenting opinion of Mr Ryssdal and Mr Wildhaber is annexed to
this judgment.
Initialled: R.R.
Initialled: M.-A.E
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.