AS TO THE ADMISSIBILITY OF
Application No. 28978/95
by Mogens TANGE
against Denmark
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 October 1997, the following members being present:
Mrs G.H. THUNE, President
MM J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
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 13 September 1995
Mogens Tange against Denmark and registered on 26 October 1995 under
file No. 28978/95;
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 1925. He is a lawyer
by profession and resides in Aars, Denmark.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1990 the applicant acted as court appointed defence counsel
in a jury trial concerning sexual abuse of minors. Judgment was
pronounced in that case on 16 November 1990.
Subsequently certain attempts were made to reopen the above case
and the applicant was appointed counsel for one of the persons involved
on 30 September 1992. In connection with his work in the above matters
the applicant received two statements, dated 16 February 1991 and
21 November 1992, respectively, made by a doctor who was also involved
in the above cases. The applicant gave copies of the statements to a
journalist who subsequently published parts thereof in a daily
newspaper.
By indictment of 22 July 1993 the applicant was charged with
having violated, inter alia, section 152 of the Penal Code which reads
as follows:
(Translation)
"Section 152: Any person who is exercising or has exercised
a public office or function, and who unauthorised passes on
or exploits confidential information which he has obtained
in connection with his office or function, shall be liable
to a fine or to simple detention or to imprisonment for any
term not exceeding 6 months.
If the offence has been committed in order to obtain an
unlawful profit for the offender or for others, or in
aggravating circumstances, the penalty may be increased to
imprisonment for any term not exceeding 2 years.
Information is confidential when so described in an Act or
other provisions, or when it is otherwise necessary to keep
it secret in order to protect important public and private
interests."
The offence, which the applicant denied having committed, related
to the fact that the applicant had passed on to the journalist the two
statements which allegedly contained information considered to be of
a confidential nature.
By judgment of 15 September 1993 the Nibe City Court (Retten i
Nibe) found the applicant guilty of the charge brought against him and
sentenced him to a fine of 2,000 DKK.
With leave the applicant appealed against the judgment to the
High Court of Western Denmark (Vestre Landsret) which upheld the
conviction and sentence by judgment of 31 August 1994. In its judgment
the High Court stated, inter alia, as follows:
(Translation)
"When compared to the original medical report which was
presented during the (1990) jury trial, the two statements,
which are referred to in the indictment, contain
particularly detailed information about the sexual
relations of a female witness who was heard during the jury
trial, including detailed descriptions of her sexual
organs. It must be considered obvious that such information
to the greatest possible extent shall remain secret.
If persons, who consider themselves the subject of sexual
crimes, had to expect that statements concerning medical
examinations, which investigations of such offences
require, could be passed on freely by the police or counsel
for the defence to journalists or others, the problems of
prosecuting such crimes would increase enormously since the
reluctance of reporting such crimes would increase
dramatically.
Thus, the High Court considers that the information (in
question) pursuant to section 152, subsection 3 must be
considered confidential since both important public and
important private interests make it necessary to keep the
information secret.
It is undisputed that (the applicant) passed on the two
statements and since neither the fact that parts of the
first statement had been mentioned previously in a daily
newspaper, nor the fact that the female witness in the jury
trial had mentioned that case to the press could lead to
any other result, it follows that (the applicant) has
violated section 152 of the Penal Code by passing on the
two statements..."
Leave to appeal against this judgment to the Supreme Court
(Højesteret) was refused on 13 July 1995.
COMPLAINTS
The applicant complains that his conviction and sentence amounts
to an unjustified interference with his right to impart information to
the press. He invokes Article 10 of the Convention.
THE LAW
The applicant complains of un unjustified interference with his
right to impart information as secured to him under Article 10
(Art. 10) of the Convention which reads 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 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."
The Commission notes that the applicant did not, in the domestic
proceedings, rely expressly on the above provision. However, the
Commission does not find it necessary to consider whether this would
raise an issue under Article 26 (Art. 26) of the Convention as to the
exhaustion of domestic remedies because it finds that the application
is in any event inadmissible for the following reasons.
The Commission finds that there was in the present case an
interference by a public authority with the exercise of the applicant's
freedom of expression within the meaning of the above provision. This
interference resulted from the applicant's conviction by the Nibe City
Court on 15 September 1993, which was upheld by the High Court on
31 August 1994. Such interference contravenes the Convention if it does
not satisfy the requirements of the second paragraph of Article 10
(Art. 10). The Commission must accordingly examine whether the
interference was "prescribed by law", had an aim that was legitimate
and was "necessary in a democratic society" for the aforesaid aim (cf.
for example Eur. Court HR, Lingens v. Austria judgment of 8 July 1986,
Series A no. 103, p. 24, para. 35).
As regards the two first elements the Commission finds that the
applicant's conviction was prescribed by law in that it was based on
section 152 of the Penal Code. The restriction moreover pursued a
legitimate aim covered by Article 10 para. 2 (Art. 10-2) of the
Convention, namely the protection of the reputation and rights of
others and the prevention of the disclosure of information received in
confidence. What remains to be examined is accordingly the question
whether the restriction complained of was "necessary in a democratic
society" for achieving this aim.
In this respect the Commission recalls that according to its
case-law and that of the European Court of Human Rights the Contracting
States have a certain margin of appreciation in assessing whether and
to what extent an interference is necessary, but this margin goes hand
in hand with European supervision covering both the legislation and the
decisions applying it. The Commission therefore has jurisdiction to
ascertain whether, having regard to the facts and circumstances of the
case, a "restriction" or "penalty" is compatible with freedom of
expression (cf. Eur. Court HR, Barfod v. Denmark judgment of
22 February 1989, series A no. 149, p. 12, para. 28).
In exercising its supervisory function the Commission must look
at the case as a whole and determine whether the interference was
proportionate to the legitimate aim pursued and whether the reasons
adduced by the Danish courts were relevant and sufficient.
The Commission recalls in this respect the judgment of the High
Court of 31 August 1994 and the reasons given therein for the
interference complained of. In particular the Commission recalls that
the statements in question contained detailed information of a very
intimate and private character, the confidentiality of which in
circumstances as in the present case moreover served an important
public purpose. Having regard thereto the Commission is satisfied that
the reasons adduced by the High Court were both relevant and
sufficient. Furthermore, the Commission considers that the sanction
imposed was not disproportionate to the legitimate aim pursued.
Consequently, the Commission finds that the interference complained of
may be regarded as "necessary in a democratic society" within the
meaning of Article 10 para. 2 (Art. 10-2) of the Convention for the
protection of the reputation and the rights of others.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy