AS TO THE ADMISSIBILITY OF
Application No. 29188/95
by Hans Kristian PEDERSEN
against Denmark
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 April 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, 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 4 September 1995
by Hans Kristian PEDERSEN against Denmark and registered on 9 November
1995 under file No. 29188/95;
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
The applicant is a Danish citizen, born in 1961. He resides in
Aalborg, Denmark.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant owns a business which deals, inter alia, with the
distribution of video programmes. Due to different opinions as to the
interpretation of the Danish copyright legislation and its compliance
with EU provisions the applicant has been in dispute for years with the
Association of Danish Video Programme Distributors (Foreningen af
Danske Videogramdistributører, hereinafter called the FDV). Eventually
the applicant wrote a book called "sådan tjener man 1 milliard kr."
(How to make a billion kroner) which was published on 5 June 1992. In
the book the applicant, inter alia, criticised the FDV and its legal
representative, JS, in their methods of implementing the applicable
legislation.
On 26 June 1992 JS instituted private criminal proceedings at the
Aalborg City Court (Retten i Aalborg) against the applicant requesting
his conviction for defamation pursuant to section 267 subsections 1 and
3 of the Penal Code which read as follows:
(Translation)
"Any person who violates the personal honour of another by
offensive words or conduct or by making or spreading
accusations of an act likely to lower him in the esteem of
his fellow citizens, shall be liable to a fine or to simple
detention."
"In fixing the penalty it shall be considered an offence of
an aggravated form if the insult was made in a printed
document or in any other way likely to give it wider
circulation, or in such places or at such times as greatly
to aggravate the offensive character of the act."
JS also requested that the following passages of the book be
considered unwarranted:
(Translation)
a) "The Danish government which is headed by Poul Schlüter, a
cousin of [JS], intervene in support of Metronome Video
Aps. [JS] changes his submissions and concurs with those of
the government."
b) "For each day which goes by, the cash register in [JS's]
office rings.
The video sector in Denmark is headed by men for whom money
is decisive. The man up front is someone with political
influence, a man whom politicians and civil servants listen
to uncritically, a man who does not care about the personal
tragedies his mafia-like methods leave behind. [EVC] lost
everything and got diabetes due to the pressure which has
not stopped yet.
[JS's] law office makes a living out of terrorising video
agents. Lawsuit after lawsuit is instituted without basis
in law. [JS] and [TS] have thorough knowledge of copyright
legislation which, in connection with the principle of
negotiation, is used in a cynical way, through bluff, to
present allegations which are groundless. If it does not
work in one case, it will in the next case. Arguments,
paragraphs and explanations are turned around in order to
fit each particular case. The subject is each time an
individual who neither has the legal knowledge nor
financial means to defend himself properly."
c) "Nevertheless I cannot be quite sure. In my view [JS] is
the biggest criminal in Danish history. During 10 years of
monopoly the turnover has been at least 3 billion kroner.
In open competition the price would have been a third less.
His trick vis-à-vis [EVC] was worth more than one billion
kroner. What does it cost to arrange a little accident."
d) "... the government have given false evidence before the
EC Court in case no. 158/86, following which Danish video
programme distributors have obtained a monopoly in Denmark.
In particular I draw attention to [JS's] statements in the
High Court of Eastern Denmark."
e) "[AJ] from the Library Supervisory Board, who previously
was put under pressure by [JS]."
Finally, JS requested damages not exceeding 250,000 DKK.
On 6 January 1993 JS's Counsel requested the City Court as
follows:
(Translation)
"Today I have received from [the applicant] very extensive
documentary evidence (96 exhibits with an estimated number
of 200 pages) and having skimmed the documents I shall
suggest, pursuant to Section 341 of the Administration of
Justice Act, that the exhibits are not admitted as evidence
as none of them appears to be of relevance to the case.
...
Copy sent by fax to [the applicant]."
On 11 January 1993 the City Court announced, in a letter
addressed to JS's Counsel, the following:
(Translation)
"Referring to your letter of 6 January 1993 I hereby
declare that on the basis of the available facts I intend
to reject the documentary evidence proposed by [the
applicant] ...
...
Copy sent to [the applicant]."
The case was heard in the Aalborg City Court on 13 January 1993.
JS and the applicant were heard as well as four witnesses. Judgment was
pronounced on 16 February 1993. The applicant was found guilty
of defamation and sentenced to pay a fine of 3,000 DKK. He was ordered
also to pay 10,000 DKK in damages to JS as well as costs. Finally, the
above parts of the book were declared to be unwarranted. In its
judgment the City Court stated, inter alia, as follows:
(Translation)
"The statements mentioned under a)-d) are, due to their
contents, obviously to be considered as defamatory
accusations. The quotation under e) is, in the light of its
context and background, to be considered as an allegation
that [JS] put pressure on [AJ], as a legal representative
for the FDV, in an inappropriate manner. In these
circumstances all statements are considered to fall under
section 267, subsection 1 of the Penal Code.
...
(On the basis of the available evidence the court does not
find) that [the applicant] has presented proof which shows
that the accusations are true. Since [the applicant] cannot
be considered as having had any reasonable ground for
believing that the accusations were true, and since when
making the very grave accusations [the applicant] cannot be
considered as having acted in a justified manner in order
to protect the interest of others, the Court finds that
there is no reason ... to refrain from punishment or to
remit it."
The applicant appealed against the judgment to the High Court of
Western Denmark (Vestre Landsret). He maintained in particular that the
City Court had not taken into consideration all the documentary
evidence submitted by him and that the court had made an incorrect
evaluation of his views. Furthermore, the applicant requested the High
Court to adjourn the case pending the outcome of another case which
involved copyright legislation and which was to be brought before the
EC Court. JS objected to the adjournment maintaining, in particular,
that issues relating to copyrights were not of relevance to the outcome
of the case.
On 22 September 1993 the High Court refused the request for an
adjournment. A subsequent request to that effect was refused on
8 June 1994. On the same date the court also decided on the question
of hearing witnesses. The court refused to hear four witnesses proposed
by the applicant as, in the court's opinion, their statements would be
superfluous since the issues relating to these witnesses were
considered to be covered by the documentary evidence.
However, the court observed ex officio that due to the character
of documentary evidence submitted to the court and in expectation of
the time needed for production of evidence and arguments of parties the
one day scheduled for the hearing would not suffice. Thus, the court
decided to adjourn the case in order to schedule two whole days for the
hearing.
The hearing took place on 15 and 16 March 1995. The applicant was
not represented by counsel. The applicant submits that he was
interrupted by the presiding judge during the hearings and that he was
not given the opportunity to produce evidence fully.
The High Court gave judgment on 31 March 1995 in favour of the
defendant. The judgment reads, inter alia, as follows:(Translation)
"In determining whether or not the statements are
defamatory it is of no relevance whether [the applicant] is
right or wrong in considering that section 25 of the
Copyright Act (as the section was formulated before its
amendment on 10 June 1989) implied that video programmes,
which were released without restrictions on distribution by
the copyright holder in another Member State of the
Community, as a consequence of its release by the copyright
holder could be distributed freely in Denmark as well. In
addition, it is of no relevance whether [the applicant] is
right or wrong in assuming that, subsequent to the
amendment of the Copyright Act ... the Act could not be
interpreted, in light of the supremacy of Community Law, to
require that permission to distribute video programmes is
confined to a territory.
Notwithstanding whether [the applicant] is right in this
assumption, with regard to proving whether the accusations
are true, it must be observed that all the applicant's
statements when read in their context, must be considered
to express the view that the defendant as a lawyer
representing [FDV] for years has attempted to interfere
with [the activities of] video agents and with the issuing
of video programmes from libraries ... contrary to his
knowledge about the state of law ... . Neither with regard
to this nor with regard to other of [the applicant's]
characterisations of the defendant's conduct in the quoted
passages, has he proven that the accusations quoted are
true.
With regard, in particular, to [the applicant's] statements
in quotations a) and d) it should be observed that the
defendant's general remarks to the European Court of
Justice ... cannot be considered incompatible with the
defendant's written statements ... .
Accordingly, for these reasons and by referring to the
other part of the reasoning of the City Court, the High
Court agrees that there is no reason to refrain from
punishment ... or to remit it ... .
... ."
The applicant then made a petition to the Ministry of Justice for
leave to appeal to the Supreme Court (Højesteret) claiming, inter alia,
that he had not been given a full opportunity to produce evidence. He
did not allege that his right to freedom of expression had been
infringed. On 31 July 1995 the Ministry of Justice refused to grant the
applicant leave to appeal.
COMPLAINTS
The applicant complains, under Article 6 para. 1 of the
Convention, that in the proceedings before the national courts he was
not afforded a fair trial.
The applicant also alleges that his right to freedom of
expression under Article 10 of the Convention has been violated.
Finally, he complains that he has not had an effective remedy before
a national authority as guaranteed in Article 13 of the Convention.
THE LAW
1. The applicant claims that in the proceedings in the City Court
and the High Court he did not have a fair trial. He invokes in this
respect Article 6 (Art. 6) of the Convention which, in so far as
relevant, reads as follows:
"1. 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 ... .
2. Everyone charged with a criminal offence has the
following minimum rights:
...
(b) to have adequate time and facilities for the
preparation of his defence;
... ."
In support of his allegations the applicant submits that, in the
proceedings in the national courts, he was not given full opportunity
to produce evidence and, in the High Court, he was prevented from
presenting his case in the order he had planned. In effect, this made
his defence difficult. In addition, the applicant complains that his
case was not adjourned until the European Court of Justice had decided
in a related case.
The Commission recalls that, at the outset, the admissibility of
evidence is primarily a matter for regulation by national law and, as
a general rule, it is for the national courts to assess the evidence
before them. In the light of these principles it is the task of the
Commission not to express a view as to whether the statements in
question were correctly admitted and assessed but rather to ascertain
whether the proceedings considered as a whole were fair, including the
way in which evidence was taken (Eur. Court HR, Kostovski v. the
Netherlands judgment of 20 November 1989, Series A no. 166, p. 19,
para. 39).
Furthermore, the Commission recalls that the right to a fair
hearing entails, in both civil and criminal proceedings, that everyone
who is a party to such proceedings shall have reasonable opportunity
of presenting his case to the court under conditions which do not place
him or her at a substantial disadvantage vis-à-vis his or her opponent
(see, inter alia, No. 10938/84, Dec. 9.12.86, D.R. 50, p. 98). This
principle of "equality of arms" can be based not only on Article 6
para. 1 (Art. 6-1) but also on Article 6 para. 3 (Art. 6-3) (cf. No.
8403/78, Dec. 14.12.81, D.R. 27, p. 61). However, it is not incumbent
on the national courts to admit all evidence on the accused's behalf
(cf. mutatis mutandis Eur. Court HR, Engel v. the Netherlands judgment
of 1 October 1975, Series A no. 22, p. 38, para. 91).
In the present case it appears that, before the hearings, the
applicant had sent 96 exhibits (including 200 pages) to the City Court.
The City Court dismissed the exhibits as irrelevant pursuant to
section 341 of the Administration of Justice Act. On 8 June 1994 the
High Court decided to dismiss the request for the hearing of four
witnesses as the testimony of these witnesses was covered by
documentary evidence. At the same time the High Court decided ex
officio to schedule two whole days for the hearing due to the extent
and character of the evidence in the case. On the day of the hearing,
so the applicant alleges, the presiding judge dismissed some of the
applicant's documents as irrelevant to the case and interfered with the
way in which the applicant intended to put forward his arguments.
Having assessed the facts, the Commission is of the opinion that
the decisions as to the admission of evidence must be viewed as the
national courts' efforts to concentrate and structure the proceedings
in order to reach a judgment in accordance with the rule of law and
that they did not place the applicant at a substantial disadvantage
vis-à-vis his opponent. In particular the Commission has not found it
established that the national courts in their refusals to admit
evidence went beyond their discretion to do so when the evidence is
considered to be of no importance to the outcome of a case.
Furthermore, it falls within the national courts' discretion whether
to adjourn a criminal case pending the outcome of another case. In the
circumstances of the present case this did not make the proceedings
unfair within the meaning of Article 6 (Art. 6) of the Convention.
Accordingly, the Commission finds that the facts as presented by
the applicant do not disclose any appearance of a violation of
Article 6 (Art. 6) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant claims, furthermore, that his right to freedom of
expression guaranteed under Article 10 (Art. 10) of the Convention has
been violated by the decisions of the national authorities. In support
of his allegation he claims that the public has a right to be informed
about illegal practices performed by certain persons acting in a public
interest.
Before entering into these aspects of the application the
Commission recalls that Article 26 (Art. 26) of the Convention provides
that the Commission may deal with the matter only after all domestic
remedies have been exhausted, according to the general recognised rules
of international law, and within a period of six months from the date
on which the final decision was taken.
As far as the exhaustion of remedies is concerned the Commission
recalls that the mere fact that an applicant has submitted his or her
case to the various competent courts does not constitute compliance
with this rule. It is also required that the substance of any complaint
made before the Commission should have been raised during the
proceedings concerned. In this respect the Commission refers to
established case-law of the Convention organs (see e.g. Eur. Court HR
Ahmet Sadik v. Greece judgment of 15 November 1996, Reports 1996-V,
no. 20, p. 1653, para. 30).
In the present case the applicant did not raise the complaint,
either in form or in substance, in the proceedings before the domestic
courts that his conviction in the City Court and subsequently in the
High Court amounted to an interference with his right of freedom of
expression guaranteed by Article 10 (Art. 10) of the Convention.
Moreover, an examination of the case as it has been submitted does not
disclose the existence of any special circumstances which might have
absolved the applicant, according to the generally recognised rules of
international law, from raising these complaints in the proceedings
referred to.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and, hence, that this part
of the application must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
3. Finally, the applicant complains that he has not had an effective
remedy before a national authority. In this respect he invokes
Article 13 (Art. 13) of the Conventon which reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in public
authority."
The Commission notes that the applicant's case has been tried by
two levels of domestic courts, each conferred with full competence to
examine the case. The Commission concludes, therefore, that effective
remedies were available to the applicant within the meaning of Article
13 (Art. 13) of the Convention. It follows that this part of 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy