M.B. AND T.M.S. AB v. SWEDEN



                      AS TO THE ADMISSIBILITY OF

                      Application No. 21831/93

                      by M. B. and T.M.S. AB

                      against Sweden

      The European Commission of Human Rights (Second Chamber) sitting

in private on 22 February 1995, the following members being present:

           Mrs.  G.H. THUNE, Acting President

           MM.   G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

           Mr.   K. ROGGE, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 1 February 1993

by M. B. and T.M.S AB against Sweden and registered on 12 May 1993

under file No. 21831/93;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

a.    The particular circumstances of the case

      The first applicant, a Swedish citizen born in 1959 and resident

in Stockholm, is a journalist.  He is employed by the second applicant,

a publishing firm established in Stockholm.  Before the Commission they

are represented by their lawyer, Mr. Ingemar Folke, Stockholm.

      The facts of the case, as submitted by the applicants, may be

summarised as follows.

      The second applicant publishes the magazine "Svenska Hustler".

Issue No. 1 of 1992 contained, under the headline "A peep at the

celebrities' secret photo albums!", pictures in which the faces of

well-known Swedish persons had been attached to other persons' bodies.

The pictures depicted different sexual situations.  Among the persons

whose faces had been so used were the leader, the secretary and another

leading member of the Swedish Social Democratic Party (SAP), who had

all been members of the Government which resigned after the general

elections in September 1991.  The accompanying texts dealt with the

sexual life of celebrities in general and the depicted persons in

particular.  One picture showed the face of the party secretary which

had been connected to a bare-breasted body dressed in lace underwear.

A man caressing the body was saying "We would have been more successful

if you had looked like this on the election posters".  Another picture

depicted two bodies which were lying next to each other and to which

the faces of the two other above-mentioned SAP members had been

attached.  The man's left hand was placed on the woman's naked abdomen

and the woman's right hand touched the man's genitals.  The

accompanying text read "Now we finally have time to relax a bit more

intimately".  In Issue No. 2 of 1992, the magazine published a photo

of a woman's diaphragm on which the face of the above-mentioned party

leader had been painted as an extension of the woman's abdomen.  The

accompanying text referred to the party leader by using a vulgar word

for the vagina.

      Seven of the persons depicted in the two issues of the magazine,

among them the three SAP members, instituted private proceedings for

libel in the District Court (Tingsrätten) of Stockholm against the

first applicant, who was the editor legally responsible for the

publication of the magazine.  In the same proceedings, they also sued

both applicants, claiming 250,000 SEK per person in damages for the

publication of the first issue and 100,000 SEK for the second issue.

      The plaintiffs requested that the case be adjudged by a jury in

accordance with the procedure under the Freedom of the Press Act

(Tryckfrihetsförordningen - hereinafter "FPA").  On 22 May 1992 a court

session was held in order to select a jury from the list of jurors.

The list, containing the names of 24 jurors, indicated the political

affiliation of each juror.  The applicants requested the District Court

to reject all eleven members of the SAP, recalling that three

plaintiffs were leading members of that party.  In its decision to

reject the applicants' request, the Court stated as follows:

(translation)

      "The District Court finds that no grounds for

      disqualification under Chapter 4, Section 13, subsections

      1-8 of the Code of Judicial Procedure [(Rättegångsbalken)]

      have been disclosed. Nor does the District Court find that

      such particular circumstances exist which are likely to

      undermine confidence in the eleven jurors' impartiality in

      the case.  The request for disqualification is therefore

      rejected.

      ..."

      The applicants appealed to the Svea Court of Appeal (Svea

hovrätt), maintaining that the case was of a political nature, as there

would have been no interest in publishing the faces of the politicians

unless they were not leading members of the SAP, and that this

considerably strained the impartiality of the jurors with the same

political affiliation.  On 30 July 1992 the appellate court rejected

the appeal without stating any reasons.  A further appeal was not open

to the applicants.

      The plaintiffs later withdrew their request for a jury but,

instead, the applicants requested that the case be adjudged by a jury.

On 28 August 1992 the District Court proceeded with the election of the

jury.  The plaintiffs and the applicants excluded four jurors each from

the list of jurors.  Then the Court, by the drawing of lots, appointed

seven substitute jurors.  After one of the remaining nine jurors had

been replaced by one of the substitute jurors, the jury consisted of

nine people of which, according to the juror's list, five were members

of the SAP, two were members of the Conservative Party (Moderata

samlingspartiet), one was a member of the Liberal Party (Folkpartiet)

and one was a member of the Centre Party (Centerpartiet).

      On 15 and 16 October 1992 the District Court, sitting with three

judges and the above jury, held a hearing in the case.  After the

hearing the jury was asked whether the publication of the two issues

of the magazine was criminal in respect of the respective plaintiffs.

With regard to Issue No. 1, the jury found that the pictures and the

text amounted to gross libel and gross insult of five of the

plaintiffs, among them the three politicians, and of libel and gross

insult of the remaining two plaintiffs.  The publication of Issue

No. 2 amounted, according to the jury, to gross insult of the

plaintiff, the party leader.

      As the jury had found the first applicant guilty, the

professional judges of the District Court also had to determine whether

a criminal offence had been committed.  By a Court judgment of

23 October 1992, the judges found the first applicant guilty of gross

insult with regard to the pictures and the text in Issue No. 1 and

liable to pay a fine of 9,000 SEK.  It further ordered the applicants

to pay damages in the amount of 50,000 SEK to each plaintiff.  The

publication of Issue No. 2 was, however, found not to be criminal.  In

its judgment, the Court stated that the publication of political

caricatures, also those with sexual allusions, may, depending on the

circumstances, be exempt from punishment even if they are grossly

insulting to the persons in question.  This, however, requires that the

purpose of the publication is to criticise or taunt society in a way

which deserves the protection of the law.  The Court found that the

pictures had not been published for such a purpose and that neither the

pictures nor the accompanying text expressed any opinion of the persons

depicted.  Instead, it concluded that the pictures and the text had

been published to show how the persons in question would look in

pornographic situations.  The Court did not find this purpose to

deserve the protection of the law.  The applicants and the plaintiffs

appealed to the Court of Appeal, the plaintiffs only with regard to the

publication of Issue No. 1 of the magazine.

      On 30 June 1993 the Court of Appeal upheld the District Court's

judgment.  The appellate court stated, inter alia, that there was

nothing in the published pictures and texts that could be regarded as

satire and that no other reasons for concluding that the publication

deserved the protection of the law had been disclosed.

      The applicants and the plaintiffs requested leave to appeal to

the Supreme Court (Högsta domstolen), which, by decision of

18 October 1993, granted the request.

      By judgment of 16 November 1994, the Supreme Court found the

first applicant guilty of libel and gross libel and sentenced him to

a fine of 15,000 SEK.  It further ordered the applicants to pay damages

in the amount of 100,000 SEK to each plaintiff.  The Court stated that

the publication of the pictures and the text had not in any way been

justifiable.

b.    Relevant domestic law

      The procedure in trials concerning offences against the freedom

of the press is regulated in the FPA.  It provides special court

procedures concerning infringements of the Act.

      The District Courts are composed of three legally trained and

qualified judges and of a jury, unless both parties agree to refer the

case to the court for decision without a jury.  The task of the jury

is limited to examining the question whether a criminal offence has

been committed (FPA, Chapter 12, Section 2).  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 question whether a criminal offence has been committed is

also considered by the professional judges, if the jury answers that

question in the affirmative.  If the opinion of the judges differs from

that of the jury, the judges are entitled to acquit the defendant or

to apply a penal provision imposing a milder sanction than that applied

by the jury.  If an appeal is lodged against the judgment of the

District Court, the higher courts, which are composed only of

professional judges, may not depart further than the District Court

from the verdict passed by the jury (FPA, Chapter 12, Section 2).

      Jurors are appointed for a term of four calendar years and are

elected in each county (län) by the County Council (landstinget) (FPA,

Chapter 12, Section 4).  The elected jurors shall be known for their

soundness of judgment, independence and fair-mindedness.  Different

social groups and currents of opinion and various parts of the county

shall be represented among the jurors (FPA, Chapter 12, Section 5).

      The provisions relating to the disqualification of judges apply

also to the disqualification from a certain trial of any juror (FPA,

Chapter 12, Section 10).  The grounds for disqualification of judges

enumerated in Chapter 4, Section 13 of the Code of Judicial Procedure

include the existence of any particular circumstance that is likely to

undermine confidence in a judge's impartiality in a case.  A request

for disqualification of a judge or a juror is decided by the District

Court in accordance with Chapter 4, Section 15 of the Code.  Such a

decision may be appealed to the Court of Appeal.

      The jury is drawn from undisqualified jurors in the following

manner: Each party has the right to exclude four jurors, and the court

thereafter selects substitutes by lot among those remaining until nine

jurors are left (FPA, Chapter 12, Section 10).

      According to Section 5 of the 1949 Act on Certain provisions

concerning the Proceedings in Freedom of the Press Cases (Lagen med

vissa bestämmelser om rättegången i tryckfrihetsmål, 1949:164), the

members of a jury have to take an oath before participating in a trial

ensuring that he or she will carry out the tasks to the best of his or

her abilities.

COMPLAINTS

      The applicants maintain that the case against them was not heard

by an independent and impartial tribunal, as there was a connection

between the five District Court jurors who were members of the SAP and

the three plaintiffs who were leading members of the same political

party.  They invoke Article 6 para. 1 of the Convention.

THE LAW

      The applicants claim that they were not heard by an independent

and impartial tribunal as required by Article 6 para. 1 (Art. 6-1) of

the Convention which, in so far as relevant, reads as follows:

      "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 ... by an independent and

      impartial tribunal established by law. ..."

      The applicants submit that the case had political implications

in that the pictures of the three SAP members and the accompanying

texts alluded to their roles in the Government and in the party.  The

text next to the picture of the party secretary referred to the party's

election posters and the text next to the picture of the other two SAP

members hinted at the party's defeat in the recent general elections.

The applicants further claim that the pictures and the texts aimed at

criticising, through satire, these well-known politicians.  For these

reasons, the applicants maintain that the participation of five SAP

members in the District Court jury calls into question the independence

and impartiality of that Court.

      The Commission recalls that when the District Court decided the

case in question, it was composed of three professional judges and nine

jurors, of whom five were members of the SAP.  The independence and

impartiality of the professional judges are not at issue.  It remains

to consider the position of the five jurors being members of the SAP.

      In order to establish whether a body can be considered

independent, regard must be had, inter alia, to the manner of

appointment of its members and their term of office, to the existence

of guarantees against outside pressures and to the question whether the

body presents an appearance of independence.  As to the question of

impartiality, a distinction must be drawn between a subjective test,

whereby it is sought to establish the personal conviction of a given

judge in a given case, and an objective test, aimed at ascertaining

whether the judge offered guarantees sufficient to exclude any

legitimate doubt in this respect (cf., e.g., Eur. Court H.R., Holm

judgment of 25 November 1993, Series A no. 279-A, p. 14, para. 30, with

further references).

      In this case, the Commission finds it difficult to examine the

issues of independence and impartiality separately.  It is further

noted that the applicants have not challenged the subjective

impartiality of the jurors.

      As regards the objective test, the Commission notes that there

existed a number of safeguards to ensure the independence and

impartiality of the jurors in question.  They had been elected for four

calendar years in conformity with the conditions for eligibility, which

prescribed that they had to be known for their soundness of judgment,

independence and fair-mindedness and also that different social groups

and currents of opinion as well as geographical areas had to be

represented among the jurors.  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.

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 applicants, albeit unsuccessfully, availed

themselves of this remedy.  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.  Furthermore, the

statutory rules on disqualification of judges also extend to jurors

(cf. above-mentioned Holm judgment, p. 15, para. 31).

      The above safeguards do not, however, exclude the possibility

that the independence and impartiality of the jurors in a particular

case may appear open to doubt.  What must be determined is whether

there are ascertainable facts which may raise doubts in respect of the

jurors' impartiality from an objective point of view and their

appearance of independence.  What is at stake in this respect is the

confidence which the courts in a democratic society must inspire in the

public.  Accordingly, any juror in respect of whom there is a

legitimate reason to fear partiality must withdraw.  This implies that

in deciding whether in a given case there is a legitimate reason to

fear that a particular juror is partial, the opinion of the party

involved is important but not decisive.  What is decisive is whether

this fear can be held to be objectively justified.

      The Commission recalls that in the present case there was a

connection between five of the jurors and three of the plaintiffs in

that they were all members of the same political party.  The applicants

feared that this might influence the outcome of the case.  The question

remains, though, whether this fear was objectively justified.

      As regards the issue which the jury was called upon to consider,

the Commission recalls that the published pictures depicted bodies

which were engaging in sexual activities and to which the faces of

well-known persons had been attached.  The Commission cannot find that

the publication of the pictures and the texts in question in any way

aimed at expressing political ideas or otherwise commenting on

political issues.  Thus, the publication was not of a political nature,

neither with regard to the pictures and the texts as such nor with

regard to the purpose of their publication.  The Commission, therefore,

considers that the political connection between five of the jurors and

three of the plaintiffs does not disqualify the five jurors.

      Having regard to the above, the Commission finds that in the

specific circumstances of the case the independence and impartiality

of the District Court sitting with a jury was not open to doubt and

that the applicants' fears in this respect cannot be considered to be

objectively justified.  Accordingly, the present application does not

disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1)

of the Convention.

      It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber  Acting President of the Second Chamber

          (K. ROGGE)                        (G.H. THUNE)

 

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