THIRD SECTION
DECISION
Application no. 33628/15
Diamant SALIHU and others
against Sweden
The European Court of Human Rights (Third Section), sitting on 10 May 2016 as a Chamber composed of:
Luis López Guerra, President,
Helena Jäderblom,
Johannes Silvis,
Branko Lubarda,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 6 July 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Thomas Mattsson, Mr Andreas Johansson and Mr Diamant Salihu are Swedish nationals who were born in 1971, 1978 and 1983, respectively. They were represented before the Court by Mr U. Isaksson, and Mr E. Kymäläinen, lawyers practising in Stockholm.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. At the relevant time the applicants worked for AB Kvällstidningen Expressen which published well-known daily tabloid newspapers in Sweden, including Kvällsposten. The first applicant was the editor-in-chief, the second applicant was a news editor and the third applicant was a journalist.
4. During 2010 several shootings took place in the city of Malmö, in southern Sweden, which attracted much attention and gave rise to a lively public debate. One reason for the many shootings was thought to be the easy access to weapons in Malmö. The events had created demands for more stringent firearms control by the police and some politicians.
5. In October 2010 the first applicant decided that the newspaper should try to buy a firearm to investigate how easy it was to obtain one. He and the second applicant set out the framework for the operation as follows. The journalist, who would present himself as a journalist working for the tabloid, was to buy a firearm, but no ammunition. The firearm would then be handed over to the police as soon as possible and the outcome would be openly accounted for in the newspaper, no matter what the result was.
6. On 22 October 2010 the second applicant informed the third applicant of the operation. The third applicant travelled to Malmö the same day.
7. On 24 October 2010 the third applicant came into contact with several people in the Malmö area who claimed that they could sell him a firearm and the same evening he successfully bought one. When the firearm was handed over to him, a photographer was present and the second applicant was listening to what was happening via a mobile telephone. The reason for this was to make the handover as safe as possible. Afterwards, the third applicant and the photographer transported the firearm in their car to the hotel where they were staying, which took approximately 25 minutes. When they arrived at the hotel, the third applicant called the police and asked them to come and collect the firearm. The firearm was then photographed and put in the hotel room’s security box. Two police officers arrived at the hotel around 30 minutes later and collected it.
8. The next day the tabloid published an article which portrayed the events. The article covered two pages, including a large photograph of the firearm. It described the contacts leading up to the purchase of the firearm. The actual purchase was described in two sentences:
“Suddenly a deadly weapon is handed over to us, wrapped in a turquoise child’s blouse. We buy the firearm, and then we contact the police”.
9. A preliminary investigation was opened against the applicants for weapons offences. During the preliminary investigation the applicants claimed that they should not be charged, since prosecution was not in the public interest (Chapter 9, section 7, of the Weapons Act (Vapenlagen (1996:67)) and that prosecuting them would violate Article 10 of the Convention. While they accepted the facts of the case, they disputed that they had committed any crime.
10. On 27 December 2011 the prosecutor decided to press charges against the applicants. The first and second applicants were charged with incitement to a weapons offence while the third applicant was charged with a weapons offence.
11. The applicants applied for a review of the decision by the Swedish Prosecution Authority (Åklagarmyndigheten), referring to Chapter 9, section 7, of the Weapons Act which stated that if someone voluntarily handed in firearms or ammunition to the police they should only be prosecuted if this were motivated by the public interest. They argued that there was no public interest in a prosecution, especially since the third applicant had acted with the aim of providing the public with information on a question of public debate. They further referred to the preparatory works of the Weapons Act which gave examples of situations where there was a public interest in prosecuting, such as if the firearm had been handed in to avoid being detected, if it concerned several weapons or if there had been a risk of the firearm being used. Since these examples differed from the present situation, it could not be considered that there was a public interest in a prosecution. Moreover, the applicants’ acts had had a journalistic purpose, and if they were prosecuted it would hinder other journalists from examining and reporting on important issues of public concern. In conclusion, freedom of speech should be protected in the case and they should not be charged.
12. On 12 January 2012 the Deputy Chief Prosecutor (vice chefsåklagaren) at the Prosecution Authority’s Development Centre (Åklagarmyndighetens Utvecklingscentrum) in Malmö rejected the applicants’ request. He agreed that the situation had not been anticipated by the legislator and that the particular circumstances in the case made it a complicated legal question. The Deputy Chief Prosecutor concluded that it would be in the public interest to have the case tried by the domestic courts to clarify the legal situation. The exemption from prosecution in the Weapons Act had the purpose of encouraging the public to hand in weapons for which they had no weapons licence, for example when somebody found a firearm in the attic or inherited a weapon. These situations were very different from the situation at hand, since the journalists had taken specific action to buy the firearm in a criminal environment and they had possessed the firearm for more than a very limited period of time. Consequently, the public interest justified a prosecution of the applicants.
13. The applicants applied to the Prosecutor General (Riksåklagaren) for reconsideration of the decision to prosecute them, maintaining their claims.
14. On 15 February 2012 the Prosecutor General rejected the application, stating that he was unable to examine the decision to prosecute them since it had already been reconsidered by another prosecutor.
15. On 17 and 18 April 2012 the Malmö District Court (tingsrätt) held an oral hearing at which the applicants and their lawyers were present. The applicants claimed that their actions were not punishable according to the Weapons Act because the necessary prerequisite “without having the right to possess” was not fulfilled, since they had neither had the required intent nor had they been careless. All three of them had thought their actions to be legal since journalists, on several previous occasions, had handled firearms without this leading to prosecution. Moreover, they argued that a conviction would be contrary to the freedom of expression, referring to Article 10 of the Convention and Chapter 1, section 4, of the Freedom of the Press Act (Tryckfrihetsförordningen (1949:105)). In any event they argued that the acts were defensible and thus non-codified exemptions from criminal responsibility (social adekvans) and, lastly, that if the District Court were to find the acts punishable, there was reason to reduce the sentences, compared to the normal sentence for the crime.
16. On 18 May 2012 the District Court convicted the first applicant of incitement to a weapons offence, the second applicant of complicity to a weapons offence and the third applicant of a weapons offence. They were given a suspended sentence (villkorlig dom) and ordered to pay a fine of 30,000 Swedish kronor (SEK) (roughly 3,200 euro (EUR)), SEK 13,500 (roughly EUR 1,400) and SEK 14,400 (roughly EUR 1,500), respectively. The District Court found that the third applicant had possessed the firearm for more than a very limited time and that the action had been planned together with the first and second applicants. As concerned the previous cases in which journalists had possessed weapons without being prosecuted, the court noted that several of them had taken place before the present law came into force and that the others were not comparable to the present case. None of these cases constituted a precedent and the applicants could not be considered to have lacked intent because of them. It also found that the first applicant had referred to the firearm as being “illegal” and that they were going to buy an “illegal” firearm, which showed that they had been aware that their actions were illegal. Moreover, the third applicant had contacted, met and paid money to obviously illegal circles. For these reasons the applicants must have understood that their actions were illegal. Thus they had intent to commit punishable actions.
17. Thereafter, the District Court examined whether convicting the applicants of the offences would be contrary to Chapter 1, section 4, of the Freedom of the Press Act or Article 10 of the Convention. It referred extensively to case-law, both domestic and by the Court, and noted that Article 10 of the Convention should be given as extensive an application as possible. It further underlined that the applicants were not on trial for publishing an article but for actions taken before the publishing. Moreover, the court observed that the case dealt neither with the publication of classified information nor with the investigation of abuse by an authority or a company. Furthermore, the act had been planned and specific actions had been taken by the journalists to obtain possession of the firearm. Their actions appeared to be premeditated risk-taking to create sensational news. When balancing these different interests and factors against each other, the District Court found that it was not possible to conclude that the actions were justified. It noted, with reference to Chapter 1, section 9, point 5, of the Freedom of the Press Act, that criminal liability should be determined in accordance with the Weapons Act. Furthermore, it did not consider that a conviction would amount to an infringement of the rights under Article 10 of the Convention. In addition, it found that the applicants’ actions were not defensible and thus could not be accepted as non-codified exemptions from criminal responsibility, referring to domestic case‑law.
18. With regard to punishment, it noted that the normal punishment would be imprisonment and it was therefore not possible to remit the sanction completely. Instead the court took into account that the intention was never for the firearm to be used and that the police were contacted soon after it was bought. Therefore, the court reduced the sentence from imprisonment and instead imposed suspended sentences and 30 day-fines for each applicant. The amount of the applicants’ day-fines was decided on the basis of their yearly earnings.
19. The applicants appealed against the District Court’s judgment, maintaining their claims, stressing the importance of Article 10 of the Convention and adding the following. It was not the purchase of the firearm that had been illegal, but its possession. The third applicant’s possession of the firearm should not be considered as possession according to the Weapons Act. Moreover, the District Court had wrongly evaluated the intent and the applicants should not be considered to have possessed the weapon illegally with intent. The District Court had attached too much weight to the fact that imprisonment was the normal sentence for the crime. It had also wrongly assessed the purpose of the reporters’ article and it should not be up to the court to evaluate the quality of the article. Furthermore, there had been no risk that the firearm would actually be used, since the intention all along had been to hand it over to the police. Their freedom of expression outweighed other interests and therefore a conviction would be in violation of Article 10 of the Convention. If they were to be convicted, there were still grounds for a complete remission of the penalty.
20. On 4 and 5 February 2013 the Court of Appeal (hovrätten) of Skåne and Blekinge held an oral hearing at which the recorded testimony from the District Court was played and the parties were able to argue their case.
21. On 19 February 2014 the Court of Appeal upheld the District Court’s judgment. The court joined in the lower court’s reasoning concerning Article 10 of the Convention. It noted in particular that it had not been necessary for the applicants to complete the purchase of the firearm and to subsequently transport it in order to fulfil their journalistic mission. The purpose of the mission – to investigate if illegal weapons were easily accessible in Malmö – had been achieved already when the third applicant received the offer to buy the firearm. It found no reason to change the applicants’ sentences.
22. The applicants appealed against the judgment, in essence maintaining their claims and developing their argumentation.
23. On 18 October 2013 the Supreme Court (Högsta domstolen) granted the applicants leave to appeal. It held an oral hearing on 13 and 14 January 2015 in which the parties had the possibility to argue their case.
24. On 4 March 2015 the Supreme Court upheld the convictions but reduced the sentences by removing the suspended sentences and instead increased the fines to 80 day-fines each which amounted, in total, to SEK 80,000 (roughly EUR 8,400) for the first applicant, SEK 53,600 (roughly EUR 5,700) for the second applicant and SEK 42,400 (roughly EUR 4,400) for the third applicant. The Supreme Court found that the applicants’ actions had been illegal, that all three of them had known that the firearm in question was illegal and that the third applicant did not have the required licences to possess the firearm. They had therefore had intent to commit the illegal act. It then noted that freedom of expression was protected by the Constitution and that investigative journalism was needed in society to detect serious anomalies. In the present case, it observed that the purpose of buying and possessing the weapon was to obtain information in order to publish an article. The prosecution was not for the actual publishing of the article. Therefore the action fell outside the scope of the Freedom of the Press Act. Even so, the Supreme Court noted that there could be situations where a crime with a journalistic purpose would go unpunished, referring to Chapter 2, sections 1, 21 and 23, of the Instrument of Government (Regeringsformen), which gave the State the possibility to limit freedom of expression in certain situations, if such an exception was acceptable in a democratic society and proportionate to its aim. If a court found that a limitation was not acceptable or proportionate, the court should not apply it, in accordance with Chapter 11, section 14, of the Instrument of Government. It noted that a similar formulation was to be found in Article 10 of the Convention.
25. The Supreme Court considered that there was a strong societal interest in controlling the handling of weapons. The severity of the prescribed punishment for crimes against the Weapons Act indicated that, according to the legislator, a strict view should be taken of these crimes. The aim of the possession of the weapon had been to scrutinise for journalistic purposes the allegation that it was easy in Malmö to get hold of illegal weapons. This was a subject of a general societal interest. The question whether it was easy to buy weapons could, however, have been illustrated by other means. The weight of the journalistic interest did not motivate the completion of the purchase of the firearm. Thus, in balancing the interests that lay behind the Weapons Act against the interests protected by freedom of expression and information, the Supreme Court concluded that it was not hindered from convicting the applicants of the crimes for which they had been prosecuted.
26. Having regard to the special circumstances of the case, namely, that the third applicant had possessed the weapon for a very short time, that he had handed it over to the police, that there had been no risk that the firearm would be used, and that it was for a journalistic purpose, the Supreme Court reduced the sentences to below those normally prescribed for the crime.
B. Relevant domestic law
27. Freedom of expression and freedom of information are protected in the Swedish Constitution and specifically in Chapter 2, section 1, of the Instrument of Government and the Freedom of the Press Act.
28. According to Chapter 2, section 20, of the Instrument of Government, the rights of freedom of expression and information may be limited in law. However, such limitations must meet the requirements laid down in Chapter 2, sections 21 and 23.
29. Section 21 provides that limitations may be imposed only to satisfy the purposes acceptable in a democratic society. The limitation must never go beyond what is necessary with regard to the purpose which occasioned it, nor may it be carried so far as to constitute a threat to the free formation of opinion as one of the fundaments of democracy. No limitation may be imposed solely on grounds of a political, religious, cultural or other such opinion.
30. In accordance with the first paragraph of section 23, freedom of expression and freedom of information may be limited, inter alia, with regard to the security of the Realm, public order and public safety and the prevention and prosecution of crime.
31. According to Chapter 11, section 14, of the Instrument of Government the domestic courts have the possibility to refuse to apply a provision of law if they find that the provision is in conflict with a rule of fundamental law or other superior statute. The domestic courts also have the possibility to remit the punishment (påföljdseftergift) in certain enumerated circumstances if it would be manifestly unreasonable to impose a sentence (Chapter 29, sections 5 and 6, of the Penal Code [Brottsbalken (1962:700)]).
32. Chapter 1, section 4, of the Freedom of the Press Act provides that:
“Any person entrusted with passing judgment on abuses of the freedom of the press or otherwise overseeing compliance with this Act should bear constantly in mind in this connection that the freedom of the press is fundamental to a free society, direct his or her attention always more to illegality of subject matter and thought than to illegality of expression, to the aim rather than the manner of presentation, and, in case of doubt, acquit rather than convict. ...”
33. Moreover, Chapter 1, section 9, point 5, of the Act prescribes that, notwithstanding the provisions of the Act, rules laid down in law shall govern liability under penal law and liability for damages relating to the manner in which an item of information or intelligence has been procured.
34. Chapter 9, section 1, of the Weapons Act, as in force at the relevant time, stipulates:
“Anyone who intentionally possesses a firearm without having the right to possess it or transfers or lends a firearm to someone who does not have the right to possess it shall be convicted of weapon offence to a prison sentence of up to one year.
If the act is aggravated the person should be convicted of aggravated weapon offence to a prison sentence of between six months and 4 years.
If the act is committed through negligence or if the offence is minor, the sentence shall be a fine or a prison sentence of up to 6 months.”
35. Chapter 9, section 7, of the Weapons Act regulates when a prosecutor should prosecute a weapons offence where the firearm has voluntarily been handed over to the authorities. It reads as follows:
“If someone voluntarily hands over firearms or ammunition to the police authority, he or she may only be prosecuted for illegal possession of a weapon or ammunition if it is motivated by a public interest.”
36. According to Chapter 23, section 4, of the Penal Code, punishment as provided for an act in the Code, or under another law or statutory instrument, shall be imposed not only on the person who committed the act but also on anyone who furthered it by advice or deed. In this respect, a person who is not regarded as the perpetrator shall, if he induced another to commit the act, be sentenced for incitement of the crime and otherwise for complicity to the crime.
COMPLAINTS
37. The applicants complained under Article 7 of the Convention that the prosecutor’s decision to prosecute them was unlawful since they had voluntarily handed over the firearm and there was no public interest to justify prosecution. They also claimed that the convictions were unlawful since the actions of the third applicant were not covered by law and, in any event, were subject to the exceptions found in the law and domestic jurisprudence.
38. The applicants also complained under Article 10 of the Convention that their freedom of expression had been violated since the infringement was not prescribed by law. In any event, they claimed that the infringement was not necessary in a democratic society since they were journalists investigating, and trying to shed light on, a question of public importance.
THE LAW
A. The complaints under Article 7
39. The applicant complained of a violation of Article 7 of the Convention which, in relevant parts, reads as follows:
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. ...”
40. The Court reiterates that under the terms of Article 35 § 1 of the Convention, the Court may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision. Only adequate remedies have to be exhausted for this purpose (see, mutatis mutandis, Civet v. France, no. 29340/95, 28.9.1999, § 41, ECHR 1999-VI).
41. As concerns the prosecutor’s decision to prosecute the applicants, the Court notes that the final decision was taken on 15 February 2012 by the Prosecutor General. Moreover, it is not possible to have the decision to prosecute examined by the domestic courts (Section 32 of the Administrative Procedure Act [Förvaltningslagen (1986:223)]). The domestic courts only have the possibility to acquit or convict the accused after the prosecutor has pressed charges against a person.
42. The Court further notes that the application was lodged with the Court on 6 July 2015 which is more than six months from the final domestic decision by the Prosecutor General. Therefore this part of the application has been lodged out of time and, regardless of whether Article 7 is applicable to this complaint, must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.
43. As concerns the legality of the domestic courts’ conviction of the applicants, the Court reiterates that while the Court’s duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001‑II).
44. The Court further stresses that however clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see C.R. v. the United Kingdom, 22 November 1995, § 34, Series A no. 335‑C).
45. Turning to the present case, the Court notes that it is clear from the wording of Chapter 9, section 1, of the Weapons Act and Chapter 23, section 4, of the Penal Code that the applicants’ actions were criminalised. The next question is whether any exceptions in law or the legal practice could be applied to the applicants’ actions.
46. The Court considers that this question has been carefully examined by three domestic instances that have evaluated the case on its merits. All three have written judgments which are thorough and contain detailed reasons in reply to the applicants’ objections. The judgments are in no way arbitrary and are consistent with the essence of the offence and could reasonably be foreseen.
47. For these reasons the Court finds that this complaint is manifestly ill‑founded and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. The complaint under Article 10
48. The applicants complained that their conviction violated their right to freedom of expression under Article 10 of the Convention, which provides:
“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 and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
1. Whether there was an interference with the applicants’ freedom of expression
49. The Court finds it clear that the applicants’ conviction interfered with their rights under Article 10 of the Convention since they were convicted of acts that were part of an investigation for an article to be published, even though they were not convicted of the actual publishing (see, mutatis mutandis, Pentikäinen v. Finland [GC], no. 11882/10, § 83, ECHR 2015; Dammann v. Switzerland, no. 77551/01, § 52, 25 April 2006; and Erdtmann v. Germany (dec.), no. 56328/10, § 16, 5 January 2016).
2. Whether the interference was prescribed by law and pursued a legitimate aim
50. The Court finds, as noted above in relation to the complaint under Article 7 (see paragraphs 45-47 above), that the applicants’ convictions were lawful since their actions fell within the scope of the Chapter 9, section 1, of the Weapons Act and Chapter 23, section 4, of the Penal Code. Moreover, the interference complained of pursued the legitimate aims of the protection of public safety and prevention of disorder and crime.
3. Whether the interference was necessary in a democratic society
51. The main issue to be determined in the present case is whether the interference was “necessary in a democratic society”. The fundamental principles concerning this question, which are well established in the Court’s case law, were summarised in Stoll v. Switzerland ([GC], no. 69698/01, § 101, ECHR 2007 V) and were reiterated more recently in Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016):
“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...
(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.
(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”
52. The Court further reiterates the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Axel Springer AG v. Germany [GC], no. 39954/08, § 79, 7 February 2012).
53. Moreover, the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism. The concept of responsible journalism, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the contents of information which is collected and/or disseminated by journalistic means. That concept also embraces, inter alia, the lawfulness of the conduct of a journalist, including his or her public interaction with the authorities when exercising journalistic functions. The fact that a journalist has breached the law in that connection is a most relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly. Journalists who exercise their freedom of expression undertake “duties and responsibilities”. It will be recalled in this connection that paragraph 2 of Article 10 does not guarantee a wholly unrestricted freedom of expression even with respect to media coverage of matters of serious public concern. In particular, and notwithstanding the vital role played by the media in a democratic society, journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that, as journalists, Article 10 affords them a cast-iron defence. In other words, a journalist cannot claim an exclusive immunity from criminal liability for the sole reason that, unlike other individuals exercising the right to freedom of expression, the offence in question was committed during the performance of his or her journalistic functions (see Pentikäinen, cited above, §§ 90-91,with further references).
54. When assessing whether the applicants’ convictions were necessary, the Court will bear in mind that the interests to be weighed in the instant case are public in nature, namely to control the illegal trade of firearms and ensure public safety, and the interest of the public to receive information on an issue of general interest. In view of this, the Court will examine the applicants’ convictions in order to determine whether the impugned interference, seen as a whole, was supported by relevant and sufficient reasons and was proportionate to the legitimate aims pursued (see Pentikäinen, cited above, § 94).
55. Turning to the facts of the present case, the Court notes that the applicants had illegally possessed a firearm, for which they had been convicted. The possession of the weapon occurred in investigations planned and carried out by the applicants for an article which was subsequently written and published. The Court stresses that the present case does not concern the prohibition of that publication or any sanctions imposed in respect of the publication, as also noted by the Supreme Court. Furthermore, the applicants’ convictions were not based on restrictions specific to the press (see Erdtmann, cited above, § 22). They were convicted solely because of their failure to comply with the Weapons Act as applicable to all.
56. The Court observes that the domestic courts found it established that the applicants must have known that their actions infringed ordinary criminal law. They also found that the fact that journalists, on some earlier occasions, had possessed firearms for a limited amount of time without being prosecuted did not change this, since two of the instances had occurred before the current Weapons Act came into force and the other two instances concerned a different situation, not involving the actual purchase of a weapon. Having regard to the principle of subsidiarity, that the domestic courts are better placed to examine and interpret facts, the Court can see no reason to deviate from the findings of the domestic courts on this point (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I).
57. The Court further considers that the article’s topic, namely the accessibility of illegal weapons in the Malmö region, was of public interest, demonstrated by the fact that it was the object of a lively public debate, in view of the many shootings that had occurred in the area. However, what the Court also has to examine is whether the article was capable of contributing to the public debate on this issue (see Stoll, cited above, § 121). On this point, the Court agrees with the Supreme Court’s conclusion that the question if it was easy to purchase a firearm could have been illustrated in other ways and that the weight of the journalistic interest did not motivate that an offer to purchase a firearm was carried through.
58. The Court further observes that the nature and severity of the penalty imposed are factors to be taken into account when assessing the proportionality of the interference (see Stoll, cited above, § 153, and Bédat, cited above, § 79). It notes that the District Court reduced the sentences which will normally be imposed because of the journalistic purpose and the special circumstances of the case. Thus, instead of sentencing the applicants to imprisonment, they were given suspended sentences and fines. The Supreme Court reduced the sentences even further, taking the same circumstances into account. It replaced the suspended sentences with mere fines, although these fines were higher than those imposed by the lower courts. The Court recognises that this is a substantial reduction of the penal element and, even though the actual fines were higher, they were day-fines calculated in relation to each applicant’s income and can neither be considered excessive nor be liable to have a deterrent effect on the exercise of freedom of expression by the applicants or other journalists (see Bédat, cited above, § 81).
59. Turning to the review of the measure by the domestic courts, the Court observes that the question of the applicants’ rights under Article 10 has been tried and argued on its merits before all three domestic instances, including the Supreme Court. The applicants were represented by legal counsel throughout the proceedings and hearings were held at all instances. All of the domestic courts stressed the importance of journalists’ role in society and made a balanced evaluation of all interests at stake. The Supreme Court expressly observed that the public interest in control of the possession of weapons was strong, as was the applicants’ competing interest of freedom of expression. It also noted that the public interest in the topic of the article, namely whether it was easy to purchase a weapon illegally in the Malmö area, could have been illustrated by other means than completing the purchase of the firearm.
60. Having regard to all the foregoing factors, and taking into account the margin of appreciation afforded to the State in this area, the Court finds that the reasons relied on by the domestic courts were relevant and sufficient for the purposes of Article 10 of the Convention and that they struck a fair balance between the competing interests at stake. Consequently, the Court concludes that the domestic courts were entitled to decide that the interference complained of was “necessary in a democratic society”.
61. It follows that this part of the application is likewise manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 2 June 2016.
Stephen PhillipsLuis López Guerra
RegistrarPresident
Full & Egal Universal Law Academy