CASE OF HOLM v. SWEDEN

COURT (CHAMBER)

CASE OF HOLM v. SWEDEN

(Application no. 14191/88)

JUDGMENT

STRASBOURG 

25 November 1993

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:

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:

- 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;

- for the Commission

Mr Gaukur Jörundsson, Delegate;

- 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.[*]

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.

Rolv RYSSDAL

President

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.

R.R.

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.

[*] 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.

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