NILSEN AND JOHNSEN v. NORWAY

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 23118/93

Arnold Nilsen and Jan Gerhard Johnsen

against

Norway

REPORT OF THE COMMISSION

(adopted on 9 September 1998)

TABLE OF CONTENTS

......................................................Page

I.INTRODUCTION

            (paras. 1-16)..........................................1

A.        The application

            (paras. 2-4)...........................................1

B.       The proceedings

           (paras. 5-11)...........................................1

C        The present Report

           (paras. 12-15)..........................................2

II.        ESTABLISHMENT OF THE FACTS

            (paras. 16-48).........................................3

A        The particular circumstances of the case

           (paras. 16-41)..........................................3

B.        Relevant domestic law

           (paras. 42-48).........................................15

III.      OPINION OF THE COMMISSION

           (paras. 49-75).........................................19

A.        Complaint declared admissible

            (para. 49)............................................19

B.        Point at issue

           (para. 50)............................................19

C.       As regards Article 10 of the Convention

          (paras. 51-74).........................................19

           CONCLUSION

           (para. 75)............................................25

APPENDIX: DECISION OF THE COMMISSION AS TO THE

                     ADMISSIBILITY OF THE APPLICATION.................26

I.INTRODUCTION

1.The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A.The application

2.The applicants are Norwegian citizens. The first applicant was born in 1928 and resides at Garnes. The second applicant was born in 1943 and resides at Fyllingsdalen. They were represented before the Commission by Mr Johan Hjort, a lawyer in Oslo.

3.The application is directed against Norway.  The respondent Government were represented by Mr Wegger Chr. Strømmen and subsequently by Mr Frode Elgesem, Acting Agents of the Attorney-General's office.

4.The case concerns defamation proceedings in which certain public statements by the applicants were considered null and void and they were ordered to pay compensation to the aggrieved party. The applicants complain of a violation of their right to freedom of expression under Article 10 of the Convention.

B.The proceedings

5.The application was introduced on 2 November 1993 and registered on 17 December 1993.

6.On 4 July 1995 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7.The Government's observations were submitted on 27 October 1995 after an extension of the time-limit fixed for this purpose. The applicants replied on 15 January 1996 after an extension of the time-limit. Additional observations were submitted by the applicants on 12 February 1996.

8. On 10 September 1997 the Commission declared the application admissible.

9.The text of the Commission's decision on admissibility was sent to the parties on 19 September 1997 and they were invited to submit such further information or observations on the merits as they wished.  The Government submitted observations on 30 October 1997 as well as on 31 March, 20 May and 17 June 1998, to which the applicants replied on 18 November 1997 as well as on 22 April, 27 May and 22 June 1998.

10.After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C.The present Report

11.The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MMJ.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

MrsG.H. THUNE

MMF. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

12.The text of this Report was adopted on 9 September 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13.The purpose of the Report, pursuant to Article 31 of the Convention, is:

(i)to establish the facts, and

(ii)to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14.The Commission's decision on the admissibility of the application is annexed hereto.

15.The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II.ESTABLISHMENT OF THE FACTS

A.The particular circumstances of the case

16.In the 1970's Mr N, then a law student, and Mr V, then a lecturer at the University of Bergen, carried out an investigation into the violence in Bergen, a city with some 200,000 inhabitants. The researchers gathered material from the local hospital relating to all patients subjected to violence during the period January 1975-July 1976. Later on the researchers included material from other sources. They began publishing their findings in 1980-81.

17.In 1981 N and V published a summary of their previous reports in a book titled Volden og dens ofre. En empirisk undersøkelse ("The violence and its victims. An empirical study"). This book of some 280 pages included one 77 page-chapter on police brutality, defined as the unlawful use of physical force during the performance of police duties. The researchers found, inter alia, that 58 persons had been exposed to police brutality during the aforementioned period. 28 of them had been medically examined. The authors concluded that the police in Bergen was responsible for approximately 360 incidents a year of excessive and illegal use of force.

18.The book gave rise to a widespread public debate. The Ministry of Justice appointed a Commission of Inquiry comprising Mr B, at the time a professor of criminal and procedural law, and Mr S-N, a practising lawyer. Their mandate was to verify whether N's and V's research gave any general indication of the form and extent of police brutality in Bergen. In a report published in 1982 under the title Politivold-rapporten ("The report on police brutality") B and S-N found that the extent and form of police brutality in Bergen were far more serious than presumed and that the conclusions drawn by N and V were fairly accurate.

19.The conclusions in the 1982 report and its premises were called into question by the Norwegian Police Association (Norsk Politiforbund) and others. The association considered bringing proceedings for defamation against B, S-N, N and V but in 1983 it decided to refrain from such action.

20.In particular the newspapers in Bergen took a keen interest in the debate following the publishing of the 1982 report. Already in 1981 the newspaper Morgenavisen had written that N had lied while gathering material for his research. N instituted proceedings for defamation but in 1983 his action was dismissed by the Bergen City Court (byrett) on the grounds that the accusation had been justified.

21.B continued his work on police brutality, eventually as an independent researcher. A second book was published in the spring of 1986 under the title Politivold ("Police brutality"), with the subtitle Omfang - årsak - forebyggelse. En studie i desinformasjon ("Extent - Causes - Prevention. A study in disinformation"). This book took the 1982 report as its point of departure but included additional facts, analyses and conclusions. In this publication B also strongly criticised the City Court's judgment in N's case against Morgenavisen.

22.After Politivold had been published the second applicant, then Chairman of the Bergen Police Association (Bergen Politilag), a branch of the Norwegian Police Association, was interviewed by the newspaper Dagbladet. The interview published on 15 May 1986 carried the following headlines (all quotations below are translations from Norwegian):

"[B] out to get the police

An entire service has been denounced by anonymous persons"

The article read as follows:

"'The mood of the officers in the police force has been swinging between despair and anger. An entire service has been denounced by anonymous persons. Many of the officers dread going out in town because there is always somebody who believes that there must be something in these allegations.'

This is what the chairman of the Bergen Police Union, [the second applicant], told Dagbladet. He describes Professor [B's] recent report on police brutality in the Bergen police force as 'pure disinformation intended to harm the police'.

'Until the contrary has been proved, I would characterise this as a deliberate lie. The allegations come from anonymous sources and are clearly defamatory of the service.'

'Are you questioning B's motives for exposing police brutality?'

'There must be other ulterior motives. It appears as if the purpose has been to undermine confidence in the police.'

'Would you suggest that the information be investigated internally?'

'If there is any truth in it, we will do what we can to remedy the situation. Such a situation is not to our credit, and we are not interested in having such people in the force.'

'So you do not exclude the possibility that misconduct has occurred?'

'I refuse to accept that any officers have committed the outrages described. But I cannot exclude the possibility that some of them have in some case used force and gone too far.'"

23.On 16 May 1986 the first applicant, then chairman of the Norwegian Police Association, was quoted in the newspaper Bergens Tidende under the headline "Unworthy of a law professor". The article read as follows:

 "'It is beneath the dignity of a law professor to present something like this. The allegations are completely frivolous since they are based on anonymous sources. They have nothing to do with reality.'

This was a statement by [the first applicant], chairman of the Norwegian Police Association, in connection with the allegations made by Professor [B] in his book about police brutality.

'I have spent my whole working life in the Bergen police force, and can safely say that the allegations concerning police brutality bear no relation to reality. They are stories that would have been better suited to a weekly with space to fill than a so-called serious study,' says [the first applicant].

Full parity

'I am puzzled by the motives behind such allegations,' continues the chairman of the Police Association. 'At any rate, it cannot be in the interests of the rule of law and the public good to create such problems for an entire service. I would claim that the quality of the human resources in the police force is fully on a par with that found among professors. We would not be able to base a charge against anyone on such flimsy grounds as professor B does. At any rate, there would not then be any rule of law in this country,'

Would not be tolerated

'But you are not denying that police brutality does occur?'

'Of course not, but that is a different question. Here is a story of the systematic use of violence and pure theft. That kind of thing would not be tolerated in a police force.'

[The first applicant] points out that he has not examined the book closely, but that what has emerged so far cannot be left unchallenged. The problem is that it is difficult to contest the allegations because it is not an individual, but an entire service, which feels it has been libelled. He does, however, agree with Chief of Police OH, who told Bergens Tidende yesterday that there must be good reason for the Prosecutor-General (Riksadvokaten) to examine the matter more closely. The Police Association will also consider seeking a legal opinion in respect of the book."

24.In the autumn of 1986 B and N published a further book on the same issue: Dokumentasjon av politivold og andre overgrep i Bergenpolitiet ("Documentation of police brutality and other misconduct in the Bergen police force"). In this book B wrote, inter alia, as follows:

 "The harassment and persecution to which N - and in part V  - have been subjected in Bergen are reminiscent of the fate of dissidents in Eastern European countries. I doubt that there is anyone among us whose situation is closer to that of these dissidents than N. It is a wonder that he has had the courage and strength to continue his struggle to bring the truth to light.

...

It is impossible to say how many officers in the Bergen police force are involved in the unlawful practice described here; hopefully only a small minority. It is, however, difficult to believe that a great many in the force could be unaware of the actions of certain colleagues. But their silence is ensured by the pressing demand for 'loyalty'. This has made it possible for the criminal sub-culture in the Bergen police force - whose activities encompass various kinds of offences - to survive and most likely to flourish.

...

There is reason to believe that many of the actions against N and V are headed by somebody who is centrally placed - that there is somebody behind the scenes in the Bergen police force who is pulling the strings, plotting strategies and laying plans together with a few highly trusted colleagues. According to information that has come to light, it may now be possible to identify the key people responsible for some of the misconduct."

25.Up to this moment the identity of the researchers' informers had been known only to the researchers themselves. B sent the Prosecutor-General an unexpurgated version of the last-mentioned book, thereby naming the informers. The Prosecutor-General ordered an investigation headed by ad hoc prosecutor L and police officers from another district.

26.In the spring of 1987 B published yet another book called Politiovergrep og personforfølgelse. 220 forklaringer om politivold og andre overgrep i Bergenpolitiet ("Police misconduct and individual harassment. 220 statements concerning police brutality and other forms of misconduct in the Bergen police force"). This book was to some extent an update of B's and N's book of 1986.

27.In June 1987 the result of the Prosecutor-General's investigation was made public: 368 cases of alleged police brutality in Bergen had been investigated. Some 500 persons, including 230 police officers, had been interviewed. Charges were brought against one police officer, who was subsequently acquitted. In these circumstances the conclusion reached in the investigation was essentially that the various allegations of police brutality were unfounded.

28.After the investigation was closed 15 out of 50-60 interviewees were charged with having made false accusations against the police (the so-called "boomerang cases"). 10 persons were convicted in jury trials before the High Court (lagmannsretten) of Gulating between November 1988 and March 1992.

29.In early 1988 the Norwegian law journal Lov og Rett published a special volume devoted to police violence and the surrounding debate. The issue included a number of articles criticising the investigation ordered by the Prosecutor-General. In one article it was harshly criticised by B and in another it was questioned by researchers N and V. B also wrote numerous other articles on the subject of police brutality.

30.On 2 March 1988 a new statement by the first applicant was printed in Annonseavisen in Bergen in an article carrying the following headlines:

"Dramatic turn in the debate on brutality

Amnesty contacted

The Police Association is preparing to take legal action"

The article read as follows:

"Not only has Professor [B] now issued a demand that a Government Commission of Inquiry should be set up to review what was long ago concluded by the Prosecutor-General. The Bergen Police Department has now been reported to Amnesty International for violating human rights! A delegation from the international secretariat in London has already been in Bergen. Their report is expected to be ready this spring.

'I have to admit that I was quite surprised when I was recently told about this. It seems as if gentlemen like N, V and B now realise that when one move does not work, they can try another,' commented the chairman of the Norwegian Police Association, [the first applicant].

In [his] view, the matter has begun to get out of hand. He describes reporting the matter to Amnesty as an insult, and feels that with the recent, sharp attacks by professor [B] and others, the limits of what can be called impartial research have long been exceeded. 'In my view, one is faced with a form of skulduggery and private investigation, where there is good reason to question the honesty of the motives', [the first applicant] said to Annonseavisen.

Just before the weekend [the first applicant] was in Bergen, where he had talks with the newly appointed board of the Bergen Police Association, ... [The first applicant says it was natural that the recent sharp attacks by [N, V and B] were one of the topics discussed.

'I intend to contact our lawyer, ..., early this week. He has long ago sent a letter to [B] in which we demand an apology for the statements he has made. I think you can count on our instituting defamation proceedings in this matter. We cannot put up with a situation where the same accusations continue to be made against the Bergen police despite the fact that the force has been cleared after one of the biggest investigations of our time.'

 Extended accusations

'But [B] has no confidence in [prosecutor L's] competence and desire to get to the bottom of things in this case?'

'The fact that Professor [B] now calls into question the work done by [prosecutor L] and instituted by the Prosecutor-General is in itself serious and astonishing. Now the charges have been extended to include superior police authorities as well.'

According to Annonseavisen's sources, [the first applicant] will very soon contact the Prosecutor-General to hear what the latter intends to do about [B's] further insinuations.

As regards Amnesty International's being brought into [the matter], [V], ..., says that this has been done because the organisation wishes to gain full insight into the situation in the Bergen police force."

31.In June 1988 the first applicant spoke in his capacity as Chairman of the National Police Association at its annual general assembly. On 7 June 1988 he was quoted in the newspaper Bergens Tidende in an article carrying the headline "[B] accused of defamation". The article read, inter alia, as follows:

"... The Norwegian Police Association is serious about its threat to bring defamation proceedings against Professor [B]. According to [the first applicant], Chairman of the Association, a summons will be issued against [B] in the next days with a claim that two specific written statements he has made in connection with the police brutality case in Bergen be declared null and void.

...

Refused

'Professor [B] has had an opportunity to apologise for the two specific points we find to be defamatory in relation to the police as a professional group, but he has refused. Therefore we are instituting proceedings. No compensation will be claimed; we are merely seeking to have the statements declared null and void.'

Critical views

[The first applicant] also mentioned this matter in his opening speech to the national assembly and said, among other things, that society's power structure had to tolerate critical views. However, this presupposes a responsible and reliable attitude on the part of the critics. He strongly denounced unobjective debates on police brutality fostered by the powerful forces of high social status.

 Amateurs

'[B's] status as a professor has lent credibility to the allegations of police brutality, and this has undermined the respect for and confidence in the police. The Norwegian Police Association will not accept the appointment of a new commission to investigate allegations of police brutality; nor will it accept amateur private investigations on a grand scale intended to fabricate allegations of police brutality which are then made public', said [the first applicant].

...

Verbal attacks

[The first applicant] described verbal attacks on the police as an attempt to undermine the dignity and authority of the police."

32.In a special edition of the law journal Juristkontakt published in the autumn of 1988 the police and the prosecution authorities presented their views on the investigation ordered by the Prosecutor-General and the ensuing investigation into the suspected false statements given by B's informers.

33.In July 1988 the Norwegian Police Association and its Bergen branch brought defamation proceedings against B, seeking to have his above-cited statements in "Documentation of police brutality and other misconduct in the Bergen police force" declared null and void (see para. 24 above).

34.In May 1989 B, for his part, instituted defamation proceedings against the applicants, requesting that the following statements be declared null and void:

Statements by the first applicant

 (Bergens Tidende of 16 May 1986:)

2.1 "'I am puzzled by the motives behind such accusations. At any rate, it cannot be in the interest of the rule of law and the public good to create such problems for an entire service.'"

(Annonseavisen of 2 March 1988:)

2.2 "'In my view, one is faced with a form of skulduggery and private investigation where there is good reason to question the honesty of the motives.'"

(Bergens Tidende of 7 June 1988:)

2.3"'The Norwegian Police Association will not accept ... amateur private investigations on a grand scale intended to fabricate allegations of police brutality which are then made public.'"

 2.4"He described verbal brutality against the police as an attempt to undermine the dignity and authority of the police."

Statements by the second applicant

 (Dagbladet of 15 May 1986:)

1.1"He described Professor B's recent report on police brutality at Bergen police department as 'pure disinformation intended to harm the police'."

1.2"'Until the opposite has been proved I would characterise this as a deliberate lie.'"

1.3"'There must be other ulterior motives. It appears as if the purpose has been to undermine confidence in the police.'"

35.In 1992 the associations withdrew their defamation claim against B following the judgment rendered by the European Court of Human Rights in Thorgeir Thorgeirson v. Iceland (Eur. Court HR, judgment of 25 June 1992, Series A no. 239). B refused to withdraw his case against the applicants.

36.The Oslo City Court heard the case against the applicants from 24 August to 8 September 1992. It examined 23 witnesses and was presented with substantial documentary evidence. On 7 October 1992 judgment was pronounced. The City Court considered it established that unlawful use of violence had occurred in Bergen, even if it had emanated from only very few police officers but to a problematic extent.

37.Having considered, on the one hand, the applicants' right to freedom of expression and, on the other hand, B's right to protection against defamation, the City Court declared null and void the first applicant's statements nos. 2 and 3 and all three statements made by the second applicant. The first applicant was ordered to pay NOK 25,000 in non-pecuniary damages to B as well as NOK 112,365.83 in costs. The second applicant was not ordered to pay damages, as the claim in that respect had been submitted out of time. He was ordered to pay NOK 168,541.91 in costs.

38.The applicants and B appealed against the judgment to the Supreme Court (Høyesterett). The applicants invoked, inter alia, Article 10 of the Convention and section 250 of the Penal Code pursuant to which a court could refrain from imposing a penalty if the injured party had provoked the defendant or retaliated. B's attacks on the associations which the applicants represented constituted such provocation and retaliation, which should be central for the assessment of the applicants' statements. B stated, inter alia, that he had not questioned the honesty of the applicants or other officials. His criticism had been directed against a system and was guaranteed special protection under Article 100 of the Constitution (grunnloven).

39.On 19 November 1992 the Appeals Selection Committee (kjæremålsutvalget) granted leave to appeal on points of law. On 5 May 1993 the Supreme Court rejected both appeals, thereby upholding the City Court's judgment. Each of the applicants was ordered to pay NOK 45,000 in additional costs to B. Justice Schei stated on behalf of the Court, inter alia, as follows:

"In this case particular attention must be paid to the freedom of expression. The statements sought to be declared null and void were made in a public debate concerning police brutality. Police brutality - and with this I mean illegal physical force used by the police against individuals - is an important matter in society. It is of central importance for a democracy that a debate concerning such matters in society may take place as far as possible without a risk of sanctions against those who participate. Of particular importance is to allow for a wide margin of appreciation for criticism of society, cf. in this connection Article 100 of the Constitution. However, those who act as defenders against the criticism, among others the representatives of the Bergen police, of course enjoy freedom of expression as well.

...

However, freedom of expression does not go as far as allowing every statement in a debate, even if the debate relates to important aspects of society. Freedom of expression must be weighed against the rights of the injured party. The borderline between statements which may pass and statements which ought to be declared null and void must normally be drawn at statements which relate to the other person's personal honesty or motives. ...

[The applicants'] argument that the [impugned] statements cannot be declared null and void because they include subjective value judgments which cannot be proved, is untenable. The statements include, among other things, accusations of deliberate falsehood, motives which are not worthy of much protection and intent to damage the police. The truth of this type of statements can in principle be proved. The fact that [the applicants] have made no attempt to present such proof is another matter.

The aggrieved party's own conduct may also be relevant to the assessment of whether [statements] are to be considered unlawful. A person who uses strong language may have to tolerate more than others. I will revert to [B's] conduct. Suffice it to say, in this context, that I cannot see that his strong involvement [in the debate] can be decisive in regard to those statements which clearly question whether he is lying or has acceptable motives. 

[The applicants] argue that nullification must be refused regardless of whether the statements are unlawful [rettsstridige], following an analoguous application of section 250 of the Penal Code. To this I would ... say that [this] provision scarcely has any independent significance any longer - at least not as regards provocation. The injured party's own conduct has become a more central aspect in the case-law when determining the issue [whether a statement should be considered unlawful] and in violation of section 247 of the Penal Code. I fail to see that there can be any room for exemption from penalty if the statement is unlawful. This approach would be the same if section 250 ... had also been applicable to nullification. For this reason alone, there are no grounds for application by analogy, as pleaded by [the applicants].

I should think that the reasoning I have ... presented is also correct in respect of retaliation. In any case there [was] [in the present case] no retaliation such as that required. ... 

...

I agree with the City Court that [the statements in question] fall under section 247 of the Penal Code. Read in their context, they are directed against [B]. In statement 1.2 he is accused of deliberate falsehood. An accusation of falsehood is also implied in statement 1.1 by the word 'disinformation'. [Statement] 1.3 implies motives which are not worthy of much protection and suggests malicious intent [underlying B's attacks against the police]. The last-mentioned is also implied in statement 1.1. The defamatory nature of [the second applicants'] statements becomes clearer and is thus reinforced when the statements are read together.

Considerations in respect of freedom of expression cannot make these statements lawful. I refer to what I said earlier about statements which are directed against the personal honesty and integrity.

It has been submitted that [B's] own situation must be of central importance in the evaluation of the lawfulness. It is alleged that he used strong and embarrassing statements against his opponents in the debate and must accept that an embarrassing light is put on him as well.

I agree that [B] voices harsh criticism in his book "Police brutality". A lot of this is criticism against a system, but a lot is also directed against persons.

[B] uses a number of derogatory expressions. Disinformation has been singled out as one of [them]. I cannot see that, for instance, the use of that expression carries any significant weight when the lawfulness of the [impugned] statements is being assessed. [B's] point by using this expression has been, inter alia, to unearth that a deliberate or negligent denial of the existence of police brutality occurs. Such denial is a prerequisite for the existence of police brutality on an appreciable scale.

The word despotism is also being stressed. In the manner it is used in the preface of [B's book] it is not linked to the Bergen police force. ... The use of words such as 'despotism' probably contributed to raising the temperature of the debate and [its] more general noise level may be relevant to the assessment of the lawfulness [of the impugned statements]. Looking at the entire context, I cannot, however, see that [B's] choice of words and the presentation of his views in "Police brutality" as well as in connection with the commercialisation of the book can justify calling into question his integrity as was done in the statements here discussed. 

It is noted that the appellants have forcefully submitted that their statements were made in their capacity as representatives of the police and that they must enjoy, as representatives, a particular protection against their statements being declared null and void. I agree that it was natural that [the applicants] as representatives looked after the interests of the police officers in the debate. As I have already mentioned they are protected by the freedom of expression in the same manner as those who direct the attention towards possible questionable circumstances within the police force. But as pointed out there is, also in respect of them, a limit. It has been overstepped here.

Accordingly, I conclude, as did the City Court, that statements 1.1, 1.2 and 1.3 must be declared null and void.

I will then turn to [the first applicant's] statements. ...

[Statement 2.2] ... directly assails the honesty of [B's] motives. That this is what is being questioned is reinforced when [the statement] is read in the context of the whole article. ...

I therefore agree with the City Court that statement 2.2 must be declared null and void. ...

Statement 2.3 is tantamount to an assertion that allegations of police brutality are being fabricated and then made public. In this, there clearly lies a statement that the published material is not based on facts. The statement appears in close connection with [B] and must be perceived as applying, at any rate, also to him. ...

... I therefore conclude that statement 2.3 but not 2.4 must be declared null and void. ..."

40.Justice Bugge wrote a concurring opinion in which he stated, inter alia, as follows:

"I have reached the same conclusion and I agree on the important points in the reasoning. However, as far as I am concerned I have reached this conclusion with considerable doubts, related to the question whether the appellants' statements were unlawful, having regard to the circumstances in which they were made. The basis for my doubts is as follows:

 It has been pointed out that in the public debate concerning matters in society - what [the European Court of Human Rights] calls `matters of public concern' - the threshold for what the participants may say without the risk of being convicted for defamation is very high. Even if this is accepted I agree that this should not legitimise attacks which are directed against the opponent's personal integrity, or which fail to appreciate or throw suspicion on his motives for participating in the debate.

...

As far as I am concerned it is not very easy to see that the statements which the City Court in this case have declared null and void in any particular way may be said to be directed against [B] as a private individual. But I shall leave that, since I also think that as such it must be considered unlawful even in a heated public debate to attack another person's integrity and motives instead of what he has said.

What in particular causes a problem for me is that - as I see it - it was [B] himself who, when the debate on police brutality started again in 1986, had brought the integrity of the police and in particular that of the Bergen Police Department into the discussion...

...

I cannot read this in any other way than that [B] here indeed himself accuses his opponents in the debate - `the police, its organisations and defenders' - of lack of integrity, of knowingly hiding factual circumstances and of acting on the basis of inappropriate motives.

It is in my view on this basis that the appellants' statements must be evaluated - and in particular these statements which were made after the publication of "Police brutality" in 1986. It is not as such ill-founded when the appellants submit that they, who naturally must have felt offended on behalf of the police, were entitled to reply in the same manner.

In this connection it is also of importance, in my opinion, that the appellants expressed themselves on behalf of the police organisations in Bergen and at the national level, respectively. They appeared as elected representatives of the members. Very likely, and rightly so, they considered it an organisational duty to react to the attacks which were directed against the working methods of the police. It is not unusual to see that a group's representatives in reply to public attacks in our society react in a way which might be lacking the necessary reflection and which might be somewhat inappropriate. The appellants were not familiar with the legislation on defamation either.

 [B] has maintained that there must be a difference between what well-known politicians must endure in respect of statements related to their political activities and the protection he enjoys when `from his professional starting point he engages in important matters of public concern'. I do not agree ... and do not understand ... how this can be argued. In my opinion and as a matter of principle a scholar - for example in law - has no further right of protection under the defamation legislation, when he embarks on a public debate on matters of public interest, than a politician.

When I nevertheless agree with [Justice Schei's] conclusions, it is because I accept that there is a need to provide the best possible terms for a debate on `matters of public concern' and that [such a debate] might suffer if statements such as those dealt with in this case are not declared null and void, even if their background is taken into consideration."

41.On 16 January 1998 the Supreme Court ordered the reopening of seven of the "boomerang cases". The requests to this effect which had been lodged in 1996 had been refused by the High Court of Gulating. The Supreme Court granted leave to appeal. Pursuant to section 392 of the Criminal Procedure Act the Supreme Court found, in its final decision, that in the special circumstances at hand the correctness of the convictions was doubtful and that weighty considerations warranted a re-assessment of the convicts' guilt. In the Supreme Court's view it was evident that police brutality had existed to a certain extent during the years 1974-86. The reason for the denial by police officers of any knowledge of such incidents had to be sought in "misunderstood loyalty". On 16 April 1998 the seven convicts were acquitted at the request of the prosecution which had found it unnecessary to bring new charges, failing a sufficient general interest. 

B.Relevant domestic law

42.Freedom of expression is protected by Article 100 of the Constitution of 1814 which reads as follows:

(Norwegian)

"Trykkefrihed bør finde Sted. Ingen kan straffes for noget Skrift, af hvad Indhold det end maatte være, som han har ladet trykke eller udgive, medmindre han forsætligen og aabenbare har enten selv vist, eller tilskyndet Andre til, Ulydighet mod Lovene, Ringeagt mod Religionen, Sædelighet eller de konstitutionelle Magter, Modstand mod disses Befalinger, eller fremført falske og ærekrænkende Beskyldninger mod Nogen. Frimodige Ytringer, om Statsstyrelsen og hvilkensomhelst anden Gjenstand, ere Enhver tilladte."

 (translation)

"There shall be liberty of the press. No person may be punished for any writing, whatever its contents, which he has caused to be printed or published, unless he wilfully and manifestly has either himself shown or incited others to disobedience to the laws, contempt of religion, morality or the constitutional powers, or resistance to their orders, or has made false and defamatory accusations against anyone. Everyone shall be free to speak his mind frankly on the administration of the State and on any other subject whatsoever."

43.Restrictions on the freedom of expression may only be imposed according to law. A defamatory statement may constitute a criminal offence under sections 246 and 247 of the Penal Code. These provisions read as follows:

(Norwegian)

" 246. Den som rettsstridig ved ord eller handling krenker en annens æresfølelse eller som medvirker dertil, straffes med bøter eller med fengsel inntil 6 månader."

" 247. Den som i ord eller handling optrer på en måte som er egnet til å skade en annens gode navn og rykte eller til å utsette ham for hat, ringeakt eller tap av den for hans stilling eller næring fornødne tillit, eller som medvirker dertil, straffes med bøter eller med fengsel inntil 1 år. Er ærekrenkelsen forøvet i trykt skrift eller i kringkastingssending eller ellers under særdeles skjerpende omstendigheter, kan fengsel inntil 2 år anvendes."

(translation)

" 246. Any person who by word or deed unlawfully defames another person, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding six months."

" 247. Any person who, by word or deed, behaves in a manner that is likely to harm another person's good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed."

44.According to section 250 of the Penal Code, a penalty may be waived if the person making a defamatory statement was provoked by the aggrieved party or if the latter retaliated with bodily assault or defamation.

45.A defamatory statement may be declared null and void by a court in pursuance of section 253 of the Penal Code. This provision reads, in so far as relevant, as follows:

(Norwegian)

"1. Når det har væert adgang til å føre bevis for sannheten av en beskyldning og beviset ikke er ført, kan den fornærmete forlange at beskyldningen blir erklært død og maktesløs (mortifisert) dersom ikke annet følger av lov.

...

3. Krav om mortifikasjon skal ... avvises:

a)når beskyldningen er framkommet i en dom, kjennelse, rettslig beslutning eller annen dommerhandling,                                             

b)når beskyldningen er satt fram av et vitne under forklaring i rettsmøte eller for politi eller påtalemyndighet, eller av en part, prosessfullmektig, aktor, forsvarer, oppnevnt sakkyndig eller personundersøker eller av en tjenestemann ved påtalemyndigheten og politiet under rettergang eller etterforskning. I disse tilfelle skal likevel kravet om mortifikasjon ikke avvises når retten finner at den fornærmete bør få sannheten av beskyldningen prøvd i mortifikasjonssak mot saksøkte eller at uttalelsen ligger utenfor sakens ramme.

c)når beskyldningen er framkommet i en skriftlig uttalelse fra Stortingets ombudsmann for forvaltningen."              

(translation)

"1.When evidence of the truth of an allegation is admissible and such evidence has not been produced, the aggrieved person may demand that the allegation be declared null and void unless otherwise provided by statute.

...

3.A claim that the allegation be declared null and void shall ... be summarily dismissed:

a)when the allegation is made in a judgment, order, judicial decision or any other judicial act;

b)when the allegation is made by a witness during a statement in a court sitting or to the police or the prosecution authority, or by a party, legal representative, prosecutor, defence counsel, appointed expert or social inquirer or by an official employed by the prosecuting authority or the police during legal proceedings or investigation. In these cases the claim that the allegations be declared null and void shall, nevertheless, not be summarily dismissed when the court finds that the aggrieved person should have the truth of the allegation examined in declaration proceedings against the defendant or that the statement falls outside the limits of the case;

 c)when the allegation is made in a written statement by the Ombudsman of Parliament ..."

46.A statement may only be declared null and void if it is unlawful. The definition of unlawfulness involves a balance between the interests protected by the provision concerned and other interests which have to be protected. Particular regard should be had to any general interest as well as to the context in which the statement appeared. Considerable importance must also be attached to whether the matter is presented in an objective and balanced manner (cf. the Norwegian Law Gazette 1990, p. 636).

47.The court's declaration that a defamatory statement is null and void is not a penalty but a judgment to the effect that the defendant has not succeeded in proving its truthfulness. The remedy provided by section 253 of the Penal Code may only be used when the allegedly defamatory statement consists of facts, since the truthfulness of value judgments is not susceptible of proof.

48.If a statement is found to be defamatory, the person who made it may be ordered to pay compensation to the aggrieved party under the 1969 Damages Act.

III.OPINION OF THE COMMISSION

A.Complaint declared admissible

49.The Commission has declared admissible the applicants' complaint that their right to freedom of expression was violated by virtue of the Oslo City Court's judgment declaring null and void certain public statements of theirs and ordering them to pay compensation to B, a judgment eventually upheld by the Supreme Court.

B.Point at issue

50.The sole issue to be determined is whether there has been a violation of Article 10 of the Convention.

C.As regards Article 10 of the Convention

51.Article 10 of the Convention reads, in so far as relevant, as follows:

"1.Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...

2.The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ..., for the protection of the reputation or rights of others, ..."

52.The applicants contend that their right to freedom of expression was violated in view of the outcome of B's defamation proceedings against them. According to the Strasbourg case-law under Article 10, the debate on issues of public interest may be uninhibited and may well include vehement and unpleasantly sharp attacks on opponents. As  chairmen of the Norwegian Police Association and the affected local branch the applicants did nothing more than defend their membership against similar attacks. They should therefore have enjoyed the same freedom of expression as their opponent B, who had initiated the debate regarding police brutality and set its tone. As a prominent participant in many controversial discussions B could not be regarded as a private person in the debate on police brutality.

53.The applicants consider the present case similar to the second Oberschlick case, where the Court found that a journalist's conviction of insult for having described a politician as an "idiot" was in violation of Article 10 (see Eur. Court HR, Oberschlick v. Austria judgment (no. 2) of 1 July 1997, Reports of Judgments and Decisions 1997-IV). Their utterances regarding B were in substance value judgments which could not be proved. They did not question B's honesty or integrity but merely his unjustified criticism against the police which resulted from his carelessness in promoting the untrue statements obtained from his informers. For instance, despite its title the book which B and N published in 1986 was not a "documentation" of alleged police brutality but consisted of unsubstantiated accounts by anonymous informers. When using the expression "deliberate lies" the second applicant did not refer to B but to his informers. The subsequent investigations by the Prosecutor-General and the "boomerang cases" in 1988-92 proved that several of those informers had indeed been lying. Moreover, the first applicant questioned B's motives in an interview published in March 1988, that is when the results of the Prosecutor-General's investigation had been made public and B had refused to accept its findings. When referring to the "fabricated allegations" against the police in his 1988 speech to the annual assembly of the Norwegian Police Association, the first applicant was referring not to B but to his informers.

54.The applicants furthermore submit that their statements must be considered in their context. The role which B assumed in the debate was not that of a legal scholar and he was allegedly sharply criticised by such scholars for his indiscriminate attacks on the police. Those of his statements which led the applicants' associations to bringing defamation proceedings against him illustrate his rhetorical style and unscientific tendency to accept allegations as facts. His various statements effectively amounted to an accusation that especially the Bergen police force and its superiors were guilty of systematic criminal conduct. The applicants limited their response to answering questions by journalists and to questioning B's work within their respective associations. A reading of the entire newspaper articles comprising the impugned statements shows that the applicants essentially sought to protest against B's uncritical accusations and to point out the unreliability of his sources.

55.The applicants therefore maintain that, against the background of B's sharp attacks on the police and bearing in mind the matters as they stood at the time of the impugned statements, those statements which were declared null and void could not, for the purposes of Article 10 of the Convention, be distinguished from those utterances in respect of which the domestic courts reached the contrary conclusion. Bearing also in mind the compensation which the applicants were ordered to pay, the interference with their freedom of expression was not proportionate to the aim pursued.

56.The Government consider that Article 10 has not been violated. The interference with the applicants' freedom was "prescribed by law" and served the legitimate aim of protecting B's reputation and rights. The Government concede that B's position was arguably not very different from that of a politician, bearing in mind his membership of the Government Commission of Inquiry and his frequent participation in public debates. The Government recall, however, that under Article 10 the exercise of the freedom of expression carries with it "duties and responsibilities". The applicants' statements were not value judgments but utterances of factual nature tantamount to deliberately false accusations which the applicants never attempted to prove. B's strong involvement in the debate on police brutality could not justify the applicants' unsupported attacks on his reputation. The Government also refer to his right under Article 6 para. 2 of the Convention to be presumed innocent until proved guilty according to law.

57.The Government furthermore recall that the City Court found it established that unlawful use of force had occurred in the Bergen police force. Moreover, the Supreme Court's reopening of seven "boomerang cases" and the subsequent acquittals of persons previously convicted of false accusations against the police strengthen the Government's view that B's criticism of the police had a sound basis and that the applicants' attacks on his honesty and integrity were unsupported.

58.The Government furthermore submit that the applicants had every opportunity to criticise matters of substance and procedure relative to B's membership of the Commission of Inquiry and his work as an independent researcher. Instead their statements were aimed at his personal integrity and motives; he was accused of lying, of having dubious motives, of being dishonest and of falsifying material. These unproved allegations did not refer to the debate on police brutality as such and did not deserve the protection afforded by Article 10. A finding to the contrary would render non-existent the protection of "the reputation and rights of others" as afforded by Article 10 para. 2. Accusations such as those made against B in the present case do not facilitate freedom of speech but might quell or obstruct a debate which should be allowed to proceed. Moreover, even if the impugned statements were to be considered value judgments for the purposes of Article 10, the Government nevertheless consider them excessive, given that they had no factual basis.

59.In conclusion, the Government submit that the interference with the applicants' freedom of expression was not disproportionate to the aim pursued. The non-pecuniary damage awarded to B amounted to only about one month's average salary in Norway. In fixing the compensation amounts the courts bore in mind that the applicants' statements had been made in a heated debate. Moreover, the impugned interference with the applicants' freedom of expression took place in the context of a lengthy and complex debate on police violence in Norway. The Convention organs should not substitute their views for that which the domestic courts reached after careful consideration of the competing interests. The interference with the applicants' freedom of expression fell within the respondent State's margin of appreciation.  

60.The Commission reiterates that, subject to paragraph 2 of Article 10 of the Convention, freedom of expression is applicable not only to "information" and "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. As to the limits of acceptable criticism, they are wider with regard to a politician acting in his public capacity than in relation to a private individual. A politician must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism. Whilst he too is entitled to have his reputation protected, even when he is not acting in his private capacity, the requirements of that protection have to be weighed against the interests of open discussion of political issues, since exceptions to freedom of expression must be interpreted narrowly (see, e.g., Eur. Court HR, Oberschlick v. Austria judgment of 23 May 1991, Series A no. 204, pp. 25-26, paras. 57-59; the aforementioned second Oberschlick judgment, op. cit., pp. 1274-1275, para. 29).

61.The Commission furthermore recalls that no distinction can be made between political discussion and discussion of other matters of public concern (see the aforementioned Thorgeir Thorgeirson judgment, op. cit., p. 27, para. 64). However, a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof (see, e.g., Eur. Court HR, Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 28, para. 46). An opinion of the  latter kind may nevertheless be excessive, in particular in the absence of any factual basis (see, e.g., the aforementioned second Oberschlick judgment, op. cit., p. 1276, para. 33).

62.The adjective "necessary" within the meaning of Article 10 para. 2 implies the existence of a "pressing social need" which must be convincingly established. The Contracting States enjoy a certain margin of appreciation in determining whether such a need exists, but this goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court (see, e.g., Eur. Court HR, Prager and Oberschlick v. Austria judgment of 26 April 1995, Series A no. 313, p. 18, para. 35; Worm v. Austria judgment of 29 August 1997, Reports 1997-V, pp. 1550-1551, para. 47).

63.Finally, the Commission recalls that it cannot confine its examination to the impugned court decision in isolation but must look at it in the light of the case as a whole (see, e.g., the aforementioned second Oberschlick judgment, op. cit., p. 1275, para. 31).

64.In the present case it is not in dispute that there has been an interference with the applicants' right to freedom of expression. It is also undisputed that this interference was prescribed by law. The Commission sees no reason to reach a different conclusion on either of these two points. It furthermore accepts that the interference was aimed at protecting the reputation and the rights of others. The sole question to be examined is therefore whether the interference in question was "necessary in a democratic society".

65. The Commission would emphasise at the outset that its task is not to determine whether the Norwegian law on defamation is as such compatible with Article 10 of the Convention. It must confine its examination to the particular facts of the present case, where the interference with the applicants' freedom of expression consisted of a judgment ordering that certain statements of theirs should be considered null and void and, in addition, that they should pay compensation to the aggrieved party.

66.The Commission notes at the outset that the statements which were declared null and void appeared in regional newspapers covering the debate resulting, in particular, from N's, V's and B's publications on the subject of police brutality in the Bergen area. This was a matter of serious public concern. The second applicant's statements formed part of an interview which he had given in his capacity as Chairman of the local branch of the Norwegian Police Association soon after the publication of B's book "Police brutality" in the spring of 1986. In this interview the second applicant did not exclude the possibility that certain officers might have used unlawful force. However, in the impugned statements he essentially questioned the motives for the allegations of police brutality which appeared in "Police brutality" and the fact that they emanated from anonymous sources. The accusations were therefore, in his opinion, to be regarded as "lies" until the contrary had been proved.      

67.The remainder of the impugned statements were made at a time when the Prosecutor-General's investigation into the accusations had resulted in only one police officer being charged, following which B had publicly criticised that investigation in the legal journal Lov og Rett in the beginning of 1988. Moreover, after the interview which the second applicant had given in 1986 B had published two further books on the subject of police brutality in Bergen. In "Documentation of police brutality and other misconduct in the Bergen police force" he had alleged that the "harassment and persecution" against N and V were being orchestrated by certain "centrally placed" officials within the Bergen police department who were guilty of "misconduct". In addition, B had asserted that "various kinds of offences" had been committed in that police force.

68.Interviewed in Annonseavisen in March 1988 in his capacity as Chairman of the Norwegian Police Association, the first applicant commented on B's criticism of the Prosecutor-General's investigation and B's demand for a new Commission of Inquiry. The first applicant also stated the Norwegian Police Association's intention to bring defamation proceedings against B. Moreover, in the impugned statement which formed part of the same interview the first applicant questioned the motives for the attacks by B "and others". Finally, in his speech to the annual assembly of the Norwegian Police Association in June 1988 the first applicant, without specifically referring to B, objected to what he regarded as "fabricated" allegations of police brutality emanating from private investigations. He again stated that the association intended to bring defamation proceedings against B. Shortly thereafter the associations which the applicants represented indeed brought such proceedings.

69.The Government have conceded that B's position was arguably not very different from that of a politician, bearing in mind his function as Government-appointed expert responsible for reviewing the findings published by N and V in the early 1980's and his frequent participation in public debates. The Commission shares this opinion. Accordingly, B had to display a greater degree of tolerance, also because of his own choice of words which were susceptible of arousing indignation notably within the police. Whilst B too was entitled to have his reputation protected, even though he was not acting in his strictly private capacity, the requirements of that protection have to be weighed against the interests of the applicants both as police officers and representatives of colleagues. In this connection the Commission would underline that the applicants and their membership were equally entitled under Article 6 para. 2 of the Convention to be presumed innocent until proved guilty according to law.

70.The Commission finds that a common denominator of all impugned statements was their character as responses by elected police representatives to the serious and repeated accusations voiced, in particular, by B to the effect that police officers in Bergen had committed criminal offences on a large scale. Contrary to the Government's assertion, the applicants' statements related directly to the debate concerning the alleged police brutality in Bergen. They did not wholly exclude that unlawful force might occasionally have been used within the Bergen police force but in essence refuted the allegations by B's initially anonymous informers that the brutality amounted to a wide-spread practice. Thus the principal aim of the applicants' statements does not appear to have been to question the qualities of B's research and his personal motives but to defend the police force against very serious accusations emanating from various sources.

71.Although the impugned statements were no doubt polemical, the Commission cannot find that they constituted a gratuitous personal attack on B. For example, by questioning the veracity of the information emanating from B's anonymous sources the applicants must be taken to have expressed doubts both as to the motives of those sources and the methodology of B's research. Once the sources had been disclosed and the ensuing investigation had shown little if any evidence of the alleged police brutality the applicants began to question B's motives more strongly, given that he had refuted the conclusion of that investigation and had continued to publish accusations to the contrary. In those circumstances the applicants provided an objectively understandable explanation for their choice of words in the impugned statements which, moreover, were scarcely susceptible of proof. At any rate, these statements could hardly be regarded as formulated in bad faith, considering their timing and context, including notably the fact that the associations which the applicants were representing were in the process of bringing a defamation action against B. The applicants' opinion of B as appearing in the impugned statements can therefore not be regarded as wholly unreasonable.

72.The Commission cannot find that the recent acquittal of seven of the informers convicted in the "boomerang cases" can be of any relevance to the present examination. The final outcome of those cases could not be foreseen by the domestic courts which examined the applicants' statements. In any event, the proceedings which B brought against them did not seek to establish whether his allegations were based on facts but whether in the circumstances the applicants had been entitled to express themselves as they had.

73.Considering the circumstances as a whole and, in particular, the tone of the debate which had been set not least by B himself, the Commission cannot find that the applicants' statements were of such a character that B's reputation and rights needed to be protected in the manner which the national courts opted for. 

74.Having regard to the foregoing and notwithstanding the margin of appreciation afforded to the national authorities, the Commission cannot find that the reasons for the impugned interference with the applicants' freedom of expression were so strong as to render the interference proportionate to the legitimate aim pursued. Accordingly,  the necessity of that interference has not been convincingly established.

CONCLUSION

75.The Commission concludes, unanimously, that in the present case there has been a violation of Article 10 of the Convention.

   M.-T. SCHOEPFER                                                                     J.-C. GEUS

      Secretary                                                                                        President

to the Second Chamber                                                           of the Second Chamber

 

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