AS TO THE ADMISSIBILITY OF
Application No. 14191/88
by Carl G. HOLM
against Sweden
The European Commission of Human Rights sitting in private on 9
January 1992, the following members being present:
MM.C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
SirBasil HALL
Mr.F. MARTINEZ RUIZ
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 January 1987
by Carl G. Holm against Sweden and registered on 6 September 1988 under
file No. 14191/88;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 23 August 1990 and the applicant's observations in reply
submitted by the applicant on 30 November 1990, as well as the
submissions of the parties at the hearing on 9 January 1992;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen, born in 1949. He is an
economist and resides at Täby, Sweden. Before the Commission he is
represented by his lawyer, Mr. Bertil Malmlöf, Stockholm.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular facts of the case
In 1985 a book called "Till höger om neutraliteten" ("On the
Right of Neutrality") was published by Tidens Bokförlag AB. The
author, Sven-Ove Hansson, was employed by the publishing house and had
inter alia served as an ideological consultant to the Social Democratic
Party. The aim of the book was inter alia to survey organisations and
persons on the right wing of the political spectrum. One of the
chapters in the book concerned the applicant, partly his personal
activities and partly an organisation, Contra, of which he was a
member. Contra had inter alia critically examined the Social
Democratic Party in Sweden.
On 15 April 1986 the applicant instituted private prosecution
proceedings for libel in the District Court (tingsrätten) of Stockholm
against Mr. Sven-Ove Hansson. In the same proceedings he also sued the
author and the publishing house, Tidens Bokförlag AB, claiming 200,000
Swedish crowns in damages for alleged libellous remarks in the book.
As the defendent so requested, the case was to be adjudged by a
jury in accordance with the procedure under the Freedom of the Press
Act (tryckfrihetsförordningen). On 10 November 1986 a court session
was held in order to select a jury from the list of jurors at the
Court. The list indicated the political affiliation of each juror. The
applicant immediately requested the Court to reject all members of the
Social Democratic Party (SAP) maintaining that Tidens Bokförlag AB was
closely associated with the SAP. In its decision rejecting the
applicant's request the District Court stated:
(translation)
"As reason for the request for disqualification (the
applicant) has referred to the ownership situation of
Tidens Förlag AB (in the case it is undisputed that Tidens
Förlag AB is owned completely by the ARE company which
again is owned by the labour movement) and that the company
is the 'mouthpiece' of the social democratic movement.
The company has disputed that these circumstances
constitute a ground for disqualification as alleged; the
company has furthermore denied that it is a 'mouthpiece' as
alleged.
Regardless of whether the company can be considered as a
'mouthpiece' as alleged, the District Court finds that the
reasons invoked do not amount to disqualifying
circumstances for the jurors concerned."
The applicant appealed against this decision to the Svea Court
of Appeal (Svea hovrätt) submitting that the ARE company owned all
shares in Tidens Bokförlag AB and that the SAP owned 85% of the shares
in ARE. He maintained that the case had political undertones for which
reason jurors who were members of the SAP should not be allowed to
participate.
On 4 December 1986 the Court of Appeal rejected the applicant's
appeal. The Court did not state any reasons. A further appeal against
this decision was not possible.
On 14 October 1987 the merits of the applicant's lawsuit were
examined by the District Court of Stockholm sitting with a jury of nine
members. Five of the jurors were members of the SAP and all of them
had or had had certain public assignments, appointed as members of the
SAP. By judgment of the same day the applicant's private prosecution
as well as his claim for damages were dismissed and costs were awarded
against him.
B. Relevant domestic legislation
The procedure in trials concerning offences against the freedom
of the press is regulated in the Freedom of the Press Act (tryckfri-
hetsförordningen). This Act is one of three fundamental laws that form
the Swedish Constitution. The fundamental laws differ from ordinary
laws in that they can only be adopted or amended by means of two
decisions by the Swedish Parliament. The decisions have to be of
identical wording. The second decision may not be taken until
elections for the parliament have been held throughout the country and
the newly-elected parliament has been convened.
The concept of fundamental law was developed in 1766 when Sweden
received its first Freedom of the Press Act. The present Freedom of
the Press Act was adopted in 1949 (hereinafter "the FPA").
According to the FPA, the protection of the printed word rests
on a number of basic principles. First, the FPA provides protection
against actions by the authorities to raise obstacles to the printing,
publication, or dissemination of printed matter (Chapter 1 Section 2).
Secondly, the freedom to establish new enterprises for printing,
distribution, etc. is guaranteed (Chapter 4 Section 1). Furthermore,
"any Swedish subject or any Swedish legal person shall have the right
to sell, dispatch, or otherwise disseminate printed matter, either
alone or with the assistance of others" (Chapter 6 Section 1).
The FPA provides special court procedures in cases concerning
infringements of the FPA.
The jury system
In cases concerning the freedom of the press the District Courts
are composed of three legally trained judges and of a jury, unless both
parties agree to refer the case to the court for decision without a
jury. The hearing is chaired by one of the legally trained judges who
acts as the president of the Court. In the Swedish legal system
participation of a jury occurs only in trials concerning the freedom
of the press. Lay judges may, however, participate in other cases.
Unlike ordinary court proceedings in which lay judges participate, the
task of the jury is limited to examining the question whether a
criminal offence has been committed. It has no influence on the penal
sanctions to be imposed or on the amount of damages. These questions
are decided by the professional judges.
The jury is composed of nine members. The jury's answer to the
question whether a criminal offence has been committed shall be
considered to be in the affirmative if at least six members concur in
that opinion (FPA, Chapter 12 Section 2).
If the jury finds that no criminal offence has been committed,
the defendant shall be acquitted by the District Court. If the jury
finds that a criminal offence has been committed, this question is also
to be considered by the Court. If the opinion of the Court differs
from that of the jury, the Court is entitled to acquit the defendant
or to apply a penal provision imposing a milder sanction than that
corresponding to the offence established by the jury. If an appeal is
lodged against the judgment of the District Court, the appeal court may
not depart further than the District Court from the verdict passed by
the jury (FPA, Chapter 12 Section 2).
The FPA also contains a special instruction:
(translation)
"Each person entrusted with passing judgment on abuses of
the freedom of the press or otherwise ensuring compliance
with this Act shall constantly bear in mind that freedom of
the press is fundamental to a free society, direct his
attention always more to illegality of subject-matter and
thought than to illegality in the form of expression, to
the aim rather than to the manner of presentation, and, in
case of doubt, acquit rather than convict." (Chapter 1
Section 4)
The list of jurors
According to the FPA, jurors are appointed for each County (län).
They shall be divided into two groups with sixteen jurors in the first
group and eight in the second. The jurors in the second group must be
or have been lay members of a court (FPA, Chapter 12 Section 3).
Jurors are appointed for a term of four calendar years. In each
County the jurors shall be elected by the County Council (landstinget)
or, where in the County there is a Municipality which does not belong
to any County Council, jointly by the County Council and the Municipal
Assembly (kommunfullmäktige) (FPA, Chapter 12 Section 4). The County
Council is the elected democratic assembly of a regional municipality
(landstingskommun). The jurors are elected by simple majority.
Jurors shall be selected from among Swedish nationals resident
in the County. They shall be known for soundness of judgment,
independence and fair-mindedness. Different social groups, currents
of opinion and various parts of the County shall be represented among
the jurors (FPA, Chapter 12 Section 5). There are also special rules
in the FPA about the right of jurors to withdraw from their duties and
about the consequences of a juror ceasing to be eligible (FPA, Chapter
12 Sections 6 and 7).
Complaints concerning the election of jurors shall be lodged with
the District Court, which may declare the election invalid. Even where
no complaint has been lodged, the Court shall examine the
qualifications of the persons elected (FPA, Chapter 12 Section 8).
Persons elected as jurors shall be entered in a jurors' list in which
each group shall be listed separately (FPA, Chapter 12 Section 9).
According to the 1949 Act on Certain Provisions concerning the
Proceedings in Freedom of the Press Cases (lagen (1949:164) med vissa
bestämmelser om rättegången i tryckfrihetsmål; Section 5), the jury has
to take the following oath before participating in the trial:
(translation)
"I (name) do solemnly swear and assure on my faith and
honour that I, as a member of this jury, shall, to the best
of my ability, answer the questions posed by the court and,
keep in absolute secrecy what is uttered during the
deliberations of the jury and how the jurors vote. This,
as an honest and upright judge, I will and shall faithfully
observe."
The composition of the jury for a trial
When legal proceedings in which a jury is to participate have
been initiated, the Court shall present the jurors' list and raise the
question whether there are grounds for disqualification of any person
included in the list. The legal provisions relating to the
disqualification of judges shall apply (FPA, Chapter 12 Section 10).
(See "The disqualification of a juror", below).
The jury shall then be composed of non-disqualified jurors in the
following manner: Each party has the right to exclude three jurors in
the first group and one in the second. No reason has to be given for
excluding a juror. Then the Court selects substitutes by lot among
those who remain until six jurors are left in the first group and three
in the second (FPA, Chapter 12 Section 10).
According to the FPA no person may evade the duties of a juror
without having a legally acceptable excuse (Chapter 12 Section 12).
The disqualification of a juror
The provisions relating to the disqualification of judges apply
also to the disqualification from a certain trial of any person
included in the list of jurors (FPA, Chapter 12 Section 10). The
grounds for disqualification of judges are enumerated in the Code of
Judicial Procedure (rättegångsbalken), Chapter 4 Section 13.
A judge shall be disqualified from examining a case if any of the
following circumstances are at hand:
(translation)
"1.If he is a party therein or otherwise has an interest
in its subject-matter or can expect special advantage or
damage from the outcome of the action;
2.if he and one of the parties are, or have been,
married, or are related by blood or marriage in lineal
ascent or descent, or are brothers or sisters, or are in
such a relationship by marriage that one of them is, or has
been, married to a brother or sister of the other, or if he
is similarly related to one of the parties;
3.if he is related as specified in 2. to anyone who has
an interest in the subject-matter or can expect special
advantage or damage from the outcome of the case;
4.if he, or anyone related to him as specified in 2., is
a guardian of, or otherwise serves as a representative of,
a party, or is a member of the board of a corporation,
partnership, co-operative, association or similar society,
foundation or similar institution, which is a party, or,
when a municipality or similar community is a party, if he
is a member of the board in charge or administration of the
subject area within which the case falls;
5.if he, or anyone related to him as specified in 2., is
related in the way stated in 4. to anyone who has an
interest in the subject-matter or can expect special
advantage or damage from the outcome of the case;
6.if he is the adversary of a party, though not if the
party has cast him in that role in order to disqualify him;
7.if he, acting as a judge or officer of another court,
has rendered a decision concerning the matter in dispute,
or if he, at an authority other than a court, or as an
arbitrator, has dealt with the matter;
8.if he has served in the case as an attorney for, or an
assistant to, one of the parties, or has been a witness or
an expert therein; or
9.if some other particular circumstance exists that is
likely to undermine confidence in his impartiality in the
case."
COMPLAINTS
The applicant maintains that his case against Sven-Ove Hansson
and Tidens Bokförlag AB was not determined by an independent and
impartial tribunal due to the fact that five of the jurors were members
of the SAP which was the dominant shareholder in a company owning the
defendant company. He invokes Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 January 1987 and registered
on 6 September 1988.
On 7 May 1990 the Commission decided to bring the application to
the notice of the respondent Government and to invite them to submit
written observations on its admissibility and merits.
The Government's observations were submitted on 23 August 1990
and the applicant's observations in reply were submitted on 30 November
1990.
On 14 October 1991 the Commission decided to invite the parties
to appear before it at a hearing on the admissibility and merits of the
application.
Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to the applicant on 13 December 1991.
At the hearing, which was held on 9 January 1992, the parties
were represented as follows:
The Government
Mr. Carl Henrik EhrenkronaMinistry for Foreign Affairs, Agent
Mr. Bertil WennbergOffice of the Chancellor of Justice,
Adviser
The applicant
Mr. Bertil MalmlöfCounsel for the applicant
Ms. Pia AttoffAdviser
The applicant, Mr. Carl G. Holm, was also present.
THE LAW
The applicant complains that the case, brought by him against the
author of a book and the publisher, was not determined by an
independent and impartial tribunal. He invokes Article 6 para. 1
(Art. 6-1) of the Convention which reads:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and
impartial tribunal established by law. Judgment shall be
pronounced publicly but the press and public may be excluded from
all or part of the trial in the interest of morals, public order
or national security in a democratic society, where the interests
of juveniles or the protection of the private life of the parties
so require, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would
prejudice the interests of justice."
The applicant submits in support of his complaint, in essence,
that the author of the book in question as well as the publisher were
affiliated to the Swedish Social Democratic Party (SAP), the former
having served as an ideological consultant to the SAP and being well-
known within the party, the latter being owned by another company in
which the SAP is the sole shareholder. Furthermore, five of the nine
jurors deciding the case were members of the SAP and were politically
active, representing the party's political views, for which reason, so
the applicant submits, the tribunal deciding his case could not be
regarded as being independent and impartial as required by Article 6
para. 1 (Art. 6-1) of the Convention.
The Government submit, in essence, that the appointment of lay
judges through elections by democratic assemblies has a very long
tradition in Sweden and ensures that jurors possess the qualities
required, i.e. sound judgment, independence and fair-mindedness. The
jurors serve on the jury as independent judges regardless of which
political party they might be affiliated to. The Government maintain
that there is no proof in the present case of any subjective or
objective partiality of the jurors for which reason the applicant was
not denied the right to an independent and impartial tribunal as
secured to him by Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission has taken cognizance of both parties' written and
oral submissions. After a preliminary examination of the case the
Commission has reached the conclusion that it raises serious issues as
to the interpretation of Article 6 para. 1 (Art. 6-1) of the Convention
and its application to the particular facts of the present case and
that these issues can only be determined after a full examination of
their merits. It follows that the application cannot be regarded as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other ground for declaring it
inadmissible has been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Deputy Secretary to the CommissionPresident of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy