THORGEIRSON v. ICELAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 13778/88

                      by Thorgeir Thorgeirson

                      against Iceland

        The European Commission of Human Rights sitting in private

on 14 March 1990, the following members being present:

              MM. S. TRECHSEL, Acting President

                  J.A. FROWEIN

                  G. SPERDUTI

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  J. CAMPINOS

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  L. LOUCAIDES

             Mr.  J. RAYMOND, Deputy Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 19 November 1987

by Thorgeir Thorgeirson against Iceland and registered on 19 April 1988

under file No. 13778/88;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having regard to the observations submitted by the respondent

Government on 26 June 1989 and the observations submitted in reply by

the applicant on 21 August 1989 as well as the submissions of the parties

at the hearing held on 14 March 1990;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is an Icelandic citizen, born in 1933.  He is an

author and resides at Reykjavík, Iceland.  Before the Commission he is

represented by his lawyer, Mr.  Tómas Gunnarsson, Reykjavík.

A.      The particular facts of the case

        In 1983 an incident occurred where a journalist was beaten up

by the police in Reykjavík.  The responsible policemen were later

prosecuted and convicted.  The incident was extensively covered in the

press and it caused the applicant to publish two articles about police

brutality in the daily newspaper Morgunbladid on 7 and 20 December 1983

respectively.  In these articles, of which the former was published in

the form of an open letter to the Minister of Justice, a case was

referred to where a young man had been seriously injured and

hospitalised as a result of police brutality.  The applicant asked for

an enquiry into the situation, he criticised the practice of letting

policemen examine complaints against other policemen, but he admitted

that there were also many good policemen and that an enquiry might show

that the brutal ones were only a small minority.  The articles and

their translation into English are attached as Appendices I and II.  Due

to the contents of these articles, the association of policemen in

Reykjavík requested the Public Prosecutor to investigate the matter.

        On 21 May 1984, the Public Prosecutor, TB, decided to send the

case to the State Criminal Investigation Police (SCIP) with the request

to investigate whether there might have been a violation of Section 108

of the Icelandic Penal Code (offences against state officials).  The

applicant was accordingly interrogated on 18 June 1984 at the SCIP

headquarters.  During this interrogation the applicant was assisted by

his lawyer.

        On the basis of the investigation of the case, the Public

Prosecutor, TB, issued a bill of indictment on 13 August 1985 whereby

the applicant was charged with having published defamatory remarks

against policemen in the two articles.  As regards the first article,

the following passages were considered by the Public Prosecutor to be

defamatory (translation):

     1.  In paragraph 3: "uniformed beasts".

     2.  In paragraph 6: "of those uniformed beasts".

     3.  In paragraph 11: "The boy's room mate told me that his

        injuries had been caused by bouncers of a restaurant

        and some policemen.  I refrained from believing this

        instantly so I inquired among the hospital staff

        and, yes, right they were: there we had a victim

        of the Reykjavík night squad."

     4.  In paragraph 12: "Then I found out that most people

        knew various stories about persons who had had a

        similar or even worse experience with the uniformed

        beasts.  Individuals had been brought back to the

        intellectual capacity of a new-born child as a result

        of choke-holds that policemen and bouncers learn and

        use with brutal spontaneity instead of handling people

        with prudence and care.  Such stories are so identical

        in substance and abundant that you can hardly treat

        them as simple lies any more."

     5.  In paragraph 13: "victims of the police brutes".

     6.  In paragraph 15: "allowing brutes and sadists to

        practise their perverted mentality".

        As regards the second article, the following passage was

considered to be defamatory (translation):

     1.  In paragraph 46: "Captain Bjarnason's behaviour was so

        typical of what gradually is becoming the public

        opinion of our police force in defence: bullish

        falsifications, illegal actions, superstition, hasted

        stupidity."

        In the indictment it was finally stated that the afore-cited

"defamatory passages", which were "directed against unnamed and

undesignated members of the Reykjavík police force", were considered to

violate Section 108 of the Penal Code.

        The Chief Judge of the Reykjavík Criminal Court assigned the

applicant's case to judge PG.  Previously PG had been employed as a

deputy in the Office of the Public Prosecutor from 2 June 1976 until he

was commissioned as judge of the Reykjavík Criminal Court on 25 July 1985,

effective from 1 August 1985.  During that period PG had dealt with

cases concerning violations of the Traffic Act, crimes of enrichment,

sexual offences and assault cases.  The division of responsibilities at

the Office of the Public Prosecutor had been such that PG had not dealt

with cases against the Government or libel cases.  The applicant's case

had been, and was, dealt with by senior staff, i.e. the Public Prosecutor,

TB, himself or the Assistant Public Prosecutor, JS.  Other employees of

the Public Prosecutor's Office had not been involved.

        Judge PG decided that the case was to be filed in the Reykjavík

Criminal Court on 10 September 1985 and the indictment was served on

the applicant the day before, summoning him to appear.  At the applicant's

request his arraignment was deferred to 17 September 1985.

        The applicant's case was accordingly dealt with by the Criminal

Court of Reykjavík presided over by judge PG on 17 September 1985 when

counsel was appointed for the applicant as requested by him.  Counsel

was granted time to acquaint himself with the case-file.

        The Public Prosecutor did neither make an appearance during

this court session nor when the case was brought up again on

24 September 1985.  During that session a record was made of counsel's

statement to the effect that, since the Public Prosecutor had not made

an appearance, he considered that the judge both represented the

prosecution and performed the role of judge.  For this reason he

motioned that PG yield his seat as judge in the case.  In a decision

rendered by PG in court the next day counsel's claims and arguments

were quoted verbatim whereupon the judge stated his opinion as follows:

"This case is not subject to prosecution and defence according

to Section 130 of the Code of Criminal Procedure, no. 74/1974.

(The applicant's) motion that the judge yield his seat is

unsupported by any valid arguments and totally unfounded.  The

judge is neither obliged nor allowed to yield his seat."

        The request was made on behalf of the applicant that this

decision be summarily appealed against to the Supreme Court of Iceland,

but this was denied by the Public Prosecutor on the basis of the Code

of Criminal Procedure (CCP), Section 171, on 26 September 1985.

        The applicant then complained to the Ministry of Justice which,

however, by letter of 18 October 1985, found no reason to support the

applicant's plea.

        The applicant's case was brought up in the Criminal Court during

six sessions conducted by judge PG during the period 9 October 1985 to

28 April 1986.  The applicant and his counsel made an appearance in

court every time and the Public Prosecutor, TB, made an appearance every

time save one.  Documents were submitted, oral statements received and

witnesses heard.  During the session on 28 April 1986 the declaration

was made on behalf of the applicant that further investigation in court

was not required.  Counsel was then afforded an opportunity to present

a written defence and granted a period until 3 June 1986 for this

purpose.  At the same time the Public Prosecutor declared that he would

make no further submissions.  When the written defence had been presented

on 3 June 1986 the case was received for adjudication.

        On 16 June 1986 PG pronounced his judgment.  The applicant was

found guilty of having violated Section 108 of the Penal Code and

was sentenced to pay a fine of 10,000 Icelandic crowns to the State

Treasury, alternatively to be detained for 8 days if the fine had not

been paid within 4 weeks from the service of the judgment.  The applicant

was, furthermore, ordered to pay all costs of the case, including fees

to his defence counsel.

        The applicant was present when the District Court judgment was

pronounced and immediately declared that he appealed against the

judgment to the Supreme Court of Iceland.  The Public Prosecutor also

appealed against the judgment.  At the applicant's request the

President of the Supreme Court, on 15 October 1986, appointed his

defence counsel to represent him in the proceedings before the Supreme

Court.  Subsequently, however, counsel requested to be relieved from

his appointment whereupon, by letter of 4 March 1987 to the President

of the Supreme Court, the applicant declared his intention of

conducting his defence before the Supreme Court on his own.  He also

asked the Supreme Court to consider 12 points concerning the District

Court judge's handling of his case which he deemed important.  On

9 March 1987 the Court informed him that his request to defend himself

was rejected.  Instead, a lawyer was appointed by the Supreme Court.

The applicant protested against this, but in vain.

        The applicant's case was heard in the Supreme Court on

22 September 1987.  He appeared but left again before the hearing

commenced as he came to the conclusion, due to apparent misunderstandings,

that the hearing had been postponed.  In his absence counsel requested

the annulment of the District Court judgment and the entire procedure

as from the issuance of the indictment, and that the case be referred

back to the District Court for renewed adjudication.  In the

alternative he requested acquittal of all charges.

        In its judgment of 20 October 1987, the Supreme Court stated

inter alia:

"In the first place the claim of annulment is based on the

fact that the Criminal Court judge PG had been employed as

deputy of the Public Prosecutor during the period when this

case was investigated by the Office of the Public Prosecutor

and thus had been disqualified from conducting the case and

adjudicating it.  As no evidence has been produced of the

Criminal Court judge having personally dealt with the case at

the former stage the claim of annulment shall not be granted.

Secondly, the claim of annulment is based on the same points

that had been presented to the Criminal Court on 24 September 1985

and the defendant's lawyer at that time had formulated the

following note:

'The defendant's lawyer refers to the fact that no

representative of the prosecution was present at the trial

or at any former sessions in this case.  He also refers to

the statements of the judge that the defendant's indication

of the bill of indictment being a violation of Section 4 of

the Law on Copyright No. 73/1972, had not been presented to

the Public Prosecutor.  Referring to para. 1 of Section 20 of

the Law 74/1974 and No. 1 of para. 1 of Section 36, the

defendant considers the fact of one person performing the

roles of both judge and prosecutor in the same case to be

unlawful.  Considering the lack of initiative to modify this

state of affairs, the replacement of the judge of this case

is required.'

The Criminal Court judge rejected this request in a decision

against which the Public Prosecutor did not authorise a

summary appeal to the Supreme Court ...  No evidence has

been produced on the proceedings of this case, which is

categorised as a legally non-prosecuted case in accordance

with Section 130 of the aforementioned law, that can justify

a disqualification of the judge or the annulment of the

appealed judgment.

The Criminal Court's decision about the defendant's guilt

and its application of the penal law has to be confirmed.

The penalty decided by the Criminal Court is to be

confirmed.  The Criminal Court decision on the costs of the

case shall be unaltered."

        In a dissenting opinion one member of the Supreme Court stated

as follows:

"In an action brought for penalties on account of defamatory

utterances a clear and definite circumscription of those to

whom the utterances are considered damaging is necessary.

This is required both for the defence of the accused and for

resolving the difficult question of what limitations have to

be placed in this regard on discussion of matters of public

concern.

The indictment in this case mentions in its introduction that

the action is brought 'on account of defamatory allegations

against policemen' and it is stated in its Section III that

the defamatory allegations in question are directed 'against

unnamed and undesignated members of the Reykjavík police

force.'  The indictment must thus be understood as relating to

an offence directed against policemen in Reykjavík generally.

While agreeing that the utterances quoted in the indictment

are harsh and have, as such, not been justified, I consider,

by reference to the foundation laid by the indictment

according to the above, that conditions for imposing penalties

by reason of a violation of Article 108 of the General Penal

Code, which is to be construed in the light of the fundamental

principle of Icelandic constitutional law relating to freedom

of expression in speech and writing, are not fulfilled.

According to the above I consider that the defendant should be

acquitted of the charges of the prosecution authority, and

that all costs of the case in the District Court as well as in

the Supreme Court should be paid by the State Treasury, including

the fees of the defendant's appointed cousel before the Supreme

Court."

B.      Relevant domestic legislation

        Section 72 of the Constitution of the Republic of Iceland,

no. 33, of 17 June 1944, states the following:

"Every person has the right of expressing his thoughts in

print.  However, he may be held responsible for them in court.

Censorship or other limitations to the freedom of the press

may never be enacted."

        Apart from certain general legal provisions on defamation a

special provision on the matter is found in Chapter XII, Section 108

of the Penal Code which reads as follows:

"Whoever vituperates or otherwise insults a public servant in

words or actions or makes defamatory allegations against or

about him when discharging his duty, or on account of the

discharge of his duty, shall be fined, confined or imprisoned

for up to 3 years.  An allegation, even if proven, brings fines

if brought forth in an impudent manner".

        The Constitution of the Republic of Iceland contains no

provisions on the legal position of an accused person or on procedure

in criminal litigation against him, which can be deemed relevant to the

applicant's case.

        The law on criminal procedure relevant for the present case is

the Code of Criminal Procedure, Law no. 74 of 21 August 1974 (CCP).  Its

Chapter II contains provisions stating that criminal court judges hear

and pass judgment in criminal cases which are prosecuted in Reykjavík.

According to Sections 1 and 4 of Law in respect of District Judicial

Organisation, Police and Customs Administration, etc., no. 74 of

27 April 1972, which will remain in effect until 1 July 1992, the

Reykjavík Criminal Court is one of three judicial tribunals in the

area, with which nine judges shall be commissioned.  However, each of

them works independently and on his own responsibility with the cases

assigned to him, cf.  Section 9 subsection 3 of the Law.  One of the

criminal court judges is commissioned as the Chief Judge of the

Reykjavík Criminal Court and according to Section 9 subsection 2 of the

Law he assigns cases to the other criminal court judges.

        Chapter II of the CCP contains no specific provision on the

disqualification of a judge from hearing a particular criminal case,

but makes instead in Section 15 subsection 2 a general reference to

Chapter II of the Code of Civil Procedure, Law no. 85 of 23 June 1936,

which applies, i.a. on that point.  Section 36 of the Code of Civil

Procedure provides inter alia that a judge shall yield his seat owing

to disqualification if he is a party to the litigation, the

representative of a party, if he is related to a party, if he has

testified to the facts of a case or served as a surveyor or appraiser

in connection with the case.  The Section furthermore provides that a

judge shall yield his seat owing to disqualification if he has argued a

case or provided counsel to a party, if he is hostile to a party, if

the case is of financial or moral concern to himself or his relatives,

or if there is otherwise a danger that he will not be able to consider

the case impartially.  If a judge is disqualified according to these

provisions the Minister of Justice appoints another qualified person to

hear and adjudge the case.

        According to Section 20 of the CCP authority of prosecution is

vested in the Public Prosecutor.  He is assisted by the Assistant Public

Prosecutor, by Prosecutors and by his deputies who are all subject to

the Public Prosecutor's orders.  According to Section 21 of the CCP the

Public Prosecutor determines how the investigation in criminal cases is

to be conducted and directs and supervises it.  He brings criminal

action, decides on the appeal of criminal cases and represents the

prosecution in court as the CCP further provides.

        Chapter V of the CCP contains provisions on the investigation

of criminal cases conducted by the police.  According to Section 32 the

Chiefs of Police are in charge of law enforcement, each within his area

of office, and they may initiate investigations of suspected criminal

acts on their own accord, according to information received or at the

Public Prosecutor's request.  In this respect, however, they are always

subject to the directions of the Public Prosecutor.  The State Criminal

Investigation Police, to which a separate Act applies (no. 108 of

28 December 1976), also investigates criminal cases under the direction of

its own Director.  According to that Act the division of responsibilities

between the State Criminal Investigation Police and local Chiefs of

Police is that in Reykjavík and a few other jurisdictions the State

Criminal Investigation Police investigates offences other than offences

against the Traffic Act and a few minor offences enumerated in the Act

and in a Regulation based on it.  The State Criminal Investigation

Police, which is also subject to the orders of the Public Prosecutor,

initiates criminal investigations according to the principles described

above.  According to Section 32 of the CCP the purpose of a police

investigation, whether conducted by the State Criminal Investigation

Police or a local agency, is to collect all evidence necessary to

enable the Public Prosecutor, when it has been concluded, to decide

whether a criminal case is to be filed.

        Provisions on the filing of a criminal case and its prosecution

in the District Court are found in Chapters XIV and XV of the CCP

(Sections 112 to 138).  According to Section 115 the Public Prosecutor

brings criminal action by an indictment in writing, specifying against

whom and in what court of law the case will be filed, what the alleged

offence is and what claims are made by the prosecution.  The indictment

is sent to the court in question, with the case documents, and the

person in charge, in Reykjavík the Chief Judge of the Reykjavík

Criminal Court, assigns the case to a certain judge who writes on the

indictment a statement specifying when the action will be brought.  The

indictment is then served on the defendant.  According to Sections 121

and 122 of the CCP the judge exhibits the indictment and other

documents when the case is filed and makes them available to the

defendant.  If the defendant at this stage admits having committed the

alleged offence the case will be adjudged there and then.  If not, the

defendant is to be afforded the opportunity to bring forth evidence and

to present a defence, in writing or orally, with the assistance of

counsel as the case may be.

        The part played by the Public Prosecutor in the procedure in

other respects, when the defendant does not confess to the alleged

offence, is determined by Section 130 of the CCP which states that a

case is subject to prosecution and defence, i.e. by the attendance of

the prosecuting authority in court, if the punishment of the offence

may exceed eight years' imprisonment, if issues of law or fact recommend

such procedure and punishment of the offence may exceed five years'

imprisonment, if the case involves exceptionally important issues, or

if its conclusion otherwise is of great public significance.  If a case

is not subject to prosecution and defence according to these rules the

procedure is governed by Sections 123 to 129 of the CCP.  The defendant's

case is then presented before the judge, and the prosecuting authority

does not make an appearance in court, unless the Public Prosecutor so

decides.  If the prosecution does not make an appearance its interests

are not actively protected.  According to Chapter X, Section 75 of the

CCP the judge shall on his own accord and independently investigate all

facts of the case, irrespective of whether police has investigated them

and submitted reports on them previously, and irrespective of whether

or not they relate to the defendant's guilt or innocence, or to

mitigating or aggravating circumstances.  When this investigation has

been completed and when evidence collected by the defendant or his

counsel has been submitted, with a defence in writing, the District

Court judge adjudges the case on the basis of the available documents

and the claims made by the prosecuting authority and the defendant.

        Section 177 of the CCP provides that when judgment in a

criminal case has been rendered the defendant shall be asked, when the

judgment is served, whether he appeals against the judgment to the

Supreme Court of Iceland.  Criminal cases which have been appealed must

always be prosecuted and defended orally before the Supreme Court, even

if the provisions described above did not require the Public Prosecutor

to make an appearance in the District Court.  The Supreme Court thus

adjudges issues of fact and law as well as the question of sanctions as

the appeal may require.  Before the Supreme Court a motion may also be

made for voidance of the District Court procedure in its entirety or of

the judgment only, and thus the case would be subject to renewed

proceedings in the lower instance, partially or totally.

        While a criminal case is being prosecuted in the District Court

the judge may be required to pass decisions concerning particular

issues which may be brought up.  Provisions of Chapter XXI of the CCP

permit a summary appeal to the Supreme Court of such decisions passed

by the District Court judge.  The defendant is free to appeal summarily

to the Supreme Court against decisions on certain matters which are

described in Section 172, but according to Section 171 the approval of

the Public Prosecutor is required for summary appeals on certain other

issues.  Among the decisions to which the latter provision applies are

decisions on whether the District Court judge shall yield his seat.

Even if the Public Prosecutor does not authorise a summary appeal

against such a decision the defendant can always, on appeal to the

Supreme Court, motion for the voidance of the District Court procedure

owing to a disqualification of the judge.

        Chapter IX of the CCP contains provisions (Sections 79 to 88)

on the appointment of counsel to secure the interests of an accused

person while a police investigation is being conducted, and on the

appointment of defence counsel while a criminal case is being processed

in the District Court.  Section 80 of the CCP provides that the

District Court judge shall appoint counsel for the defendant if his

case is subject to prosecution and defence before that instance

according to Section 130, described above.  The judge shall,

furthermore, appoint counsel for the defence without request on the

part of the defendant if appraisers are required to give evidence in

his absence, or if the defendant is, in the opinion of the judge,

significantly lacking in awareness or understanding or suffering from

sensory deficiencies, or if the defendant's condition or behaviour in

court is otherwise of such nature that the judge considers the

appointment of counsel desirable.

         In other cases a defence counsel will generally be appointed

at the request of the suspected or indicted person.  Normally the

person nominated by the defendant will then be appointed defence

counsel.  However, the judge has the power of decision in this regard.

If the apppointment of defence counsel is not mandatory according to

the above, the defendant may defend himself in person if he so wishes.

If defence counsel has been appointed, whether by reason of legal

requirements or at the defendant's own request, Section 135 of the CCP

provides that the defendant may address the court himself when the

defence counsel and, if applicable, the prosecutor have completed

their speeches for the prosecution and the defence.

        A criminal case shall, on appeal, always be prosecuted and

defended orally before the Supreme Court.  The CCP contains no special

provisions on the appointment of defence counsel before the Supreme

Court, except for Section 179 which provides that the President of the

Supreme Court appoints counsel for the defendant before that instance.

When a case is appealed to the Supreme Court the principles described

above concerning the appointment of defence counsel in the lower

instance are applied in other respects.  According to Article 49 of the

Law on the Supreme Court of Iceland, no. 75 of 21 June 1973, a party in

litigation who does not present his case to the Court himself may,

subject to the Court's permission, speak and make his comments when his

counsel and his adversary have completed their oral submissions.

COMPLAINTS

        Under Article 6 of the Convention the applicant complains that

his case was not heard by an impartial tribunal in that the Criminal

Court judge, in the absence of the Public Prosecutor, allegedly claimed

to be representing the prosecution in addition to hearing the case.

        Furthermore, the applicant complains, under this provision,

that the judge in the Criminal Court had been the deputy of the Public

Prosecutor during the period when his case was dealt with by the Public

Prosecutor's Office.

        The applicant finally complains that he was not allowed to defend

himself in person in the Supreme Court.  He refers in this respect to

Article 6 para. 3 (c) of the Convention.

        Under Article 10 of the Convention the applicant complains of

having been punished for the articles he published in exercise of his

right to freedom of expression.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 19 November 1987 and

registered on 19 April 1988.

        The Commission decided on 10 March 1989 to bring the

application to the notice of the respondent Government, inviting them

to submit written observations on the admissibility and merits of the

case.

        The Government's observations were submitted on 26 June 1989

and the applicant's observations in reply were submitted on

21 August 1989.

        Free legal aid was granted to the applicant on 27 July 1989.

        On 4 October 1989 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the application.

        At the hearing, which was held on 14 March 1990, the parties

were represented as follows:

The Government

Mr.  Thorsteinn Geirsson,                Secretary General of the Ministry

                                        of Justice and Ecclesiastical

                                        Affairs, as Agent

Mr.  Gunnlaugur Claessen,                Solicitor General, as counsel

Professor Markús Sigurbjörnsson,        as adviser

The applicant

Mr.  Tómas Gunnarsson,                   Attorney-at-law, as counsel

The applicant was also present.

THE LAW

1.      The applicant has complained of the absences of the Public

Prosecutor at some hearings before the District Criminal Court of

Reykjavík and has alleged that the judge in that Court had claimed to

be representing the prosecution in addition to hearing the case.  He

has invoked Article 6 (Art. 6) of the Convention.

        The Commission has examined this particular complaint under

Article 6 para. 1 (Art. 6-1) of the Convention which reads insofar as

relevant:

"In the determination of ... any criminal charge against him

everyone is entitled to a fair ... hearing ... by an ...

impartial tribunal ...".

        The Commission has made a preliminary examination of the above

complaint in the light of the parties' submissions and has come to the

conclusion that it raises serious issues as to the interpretation and

application of Article 6 para. 1 (Art. 6-1) of the Convention and that

these   issues can only be determined after an examination on the

merits.  This complaint cannot therefore be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention and must be  declared admissible, no

other reason for declaring it inadmissible having been established.

2.      Under Article 6 (Art. 6) of the Convention the applicant has

also complained of the fact that the District Court judge had been the

deputy of the Public Prosecutor during the period when his case was

dealt with by the Public Prosecutor's Office.  He maintains that the

judge cannot in such circumstances be considered to be impartial.

        The European Court of Human Rights has stated that the

guarantee of impartiality required by Article 6 (Art. 6) of the

Convention   implies a double guarantee: first the subjective

requirement that the   judge shall be unbiased, and secondly, an

objective requirement that the situation must be such as to exclude

any legitimate doubts about his impartiality (Eur. Court H.R.,

Piersack judgment of 1 October 1982, Series A no. 53, p. 14, para. 30).

        As regards the subjective requirement, the Commission finds

that no evidence has been adduced which could raise any doubts on this

point.  In this context the Commission also recalls that the personal

impartiality of a judge must be presumed until the contrary is

established (Eur. Court H.R., Le Compte, Van Leuven and De Meyere

judgment of 23 June 1981, Series A No. 43, p. 25, para. 58).

        As regards the objective requirement, the Commission recalls

that in finding a violation of Article 6 para. 1 (Art. 6-1) in the

Piersack case (mentioned above) the European Court of Human Rights

considered that if "an individual, after holding in the Public

Prosecutor's department an office whose nature is such that he may

have to deal with a given matter in the course of his duties,

subsequently sits in the same case as a judge, the public are entitled

to fear that he does not offer sufficient guarantees of impartiality"

(p. 15, para. 30 (d)).  The impartiality of the tribunal which had to

determine the merits of the charge was in such circumstances capable

of appearing open to doubt.

        On the other hand the Court stated in the same judgment:

"It would be going too far to the opposite extreme to maintain

that former judicial officers in the Public Prosecutor's

department were unable to sit on the bench in every case that

had been examined initially by that department, even though they

had never had to deal with the case themselves.  So radical a

solution, based on an inflexible and formalistic conception of

the unity and indivisibility of the Public Prosecutor's

department, would erect a virtually impenetrable barrier

between that department and the bench.  It would lead to an

upheaval in the judicial system of several Contracting States

where transfers from one of those offices to the other are a

frequent occurrence.  Above all, the mere fact that a judge

was once a member of the Public Prosecutor's department is not

a reason for fearing that he lacks impartiality."  (p. 14,

para. 30 (b)).

        In the present case the Commission recalls that judge PG was

employed in the Public Prosecutor's Office while the present case was

under investigation there.  However, it has been established that

during the period in question the division of responsibilities was such

that PG was in no way involved in the investigation regarding the

applicant's case.

        Furthermore, PG did not hold at that time any hierarchical

position which would have entitled him to intervene in the case, for

example, by revising written submissions, by directing the approach to

be adopted or by instructing on points of law.

        In such circumstances the Commission finds that the fact that

judge PG had previously worked in the Public Prosecutor's Office could

not create any legitimate doubts about his impartiality.  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.

3.      Under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention the

applicant has finally complained that he was not permitted to defend

himself in person in the proceedings before the Supreme Court after

his previous defence counsel had withdrawn from the case.

        Under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention,

"everyone charged with a criminal offence" is entitled:

"to defend himself in person or through legal assistance of

his own choosing or, if he has not sufficient means to pay for

legal assistance, to be given it free when the interests of

justice so require."

        The Commission recalls, however, that the right to defend

oneself is in no way an absolute right.  According to the Commission's

case-law the above provision guarantees to an accused person that the

proceedings against him will not take place without an adequate

representation of the case for the defence, but does not give an

accused person the right to decide himself in what manner his defence

should be assured.  The choice between the two alternatives mentioned

in the provision, namely the applicant's right either to defend himself

in person or to be represented by a lawyer of his own choosing, or, in

certain circumstances, one appointed by the court, may lie with the

competent authorities (cf. No. 7138/75, Dec. 5.7.77, D.R. 9 p. 50 with

further references).  It is implied by the above interpretation that

where an accused person is represented by a lawyer he must generally

exercise his procedural rights through this lawyer.  It makes no

difference in this respect whether the lawyer in question is a counsel

of the party's own choice, or an ex officio or legal aid counsel.

        In the present case the Commission recalls that at the request

of the applicant his lawyer, Mr.  Gunnarsson, was appointed to represent

him in the Supreme Court.  As he withdrew from the case, however, the

applicant requested leave to defend himself which was refused by the

President of the Supreme Court.  Subsequently a new defence counsel,

appointed by the Supreme Court, argued the applicant's case before this

Court.  The Commission has found no indication that the defence counsel

appointed was prevented from acting or that he failed in his duties.

Furthermore, the Commission recalls that under Icelandic law the

applicant had the possibility to be present in the Supreme Court and to

address the Court, although it appears that the applicant did not use

these possibilities due to certain misunderstandings.

        In these circumstances, and having regard to the above case-law,

the Commission finds no appearance of a violation of Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention and it follows that this part of the

application is manifestly ill-founded within the meaning of Article 27

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

4.      The applicant has also invoked Article 10 (Art. 10) of the

Convention which reads:

"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. ...

2.  The exercise of these freedoms, since it carries with it

duties and responsibiities, 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 applicant maintains that his freedom of expression under the

above Article has been interfered with by his being convicted and

sentenced to pay a fine of 10,000 Icelandic crowns for having published

two articles which concerned alleged police brutality.

        In this respect, the Commission has taken cognizance of both

parties' submissions and considers that the issue to be decided is

whether the interference with the applicant's freedom of expression was

justified for any of the reasons set out in the second paragraph of

Article 10 (Art. 10).

        The Commission has made a preliminary examination of the above

aspect and has come to the conclusion that it raises serious issues as

to the interpretation and application of Article 10 (Art. 10) of the

Convention, and that these issues can only be determined after an

examination on the merits.  This complaint cannot therefore be

rejected as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention and must be declared

admissible, no other reason for declaring it inadmissible having been

established.

        For these reasons, the Commission

        DECLARES ADMISSIBLE, without prejudging the merits

        - the complaint concerning the absence of the Public Prosecutor

          at certain court sessions during the applicant's trial and its

          effect on the impartiality of the District Criminal Court of

          Reykjavík, and

        - the complaint concerning the interference with the applicant's

          freedom of expression,

        and

        DECLARES INADMISSIBLE

        - the remainder of the application.

Deputy Secretary to the Commission        Acting President of the Commission

          (J. RAYMOND)                               (S. TRECHSEL)

TRANSLATION

LET US CONSIDER NOW!

An open letter to Minister of Justice Jón Helgason

(from MORGUNBLADID 7.12.1983) by Thorgeir Thorgeirson

Honourable Minister of Justice:

        Recently a problem that for several years had been bothering -

if not obsessing - my mind, all of a sudden came into the spotlight of

the press.  A journalist of your own very progressive party-newspaper -

Tíminn - had a difficult experience and returned with some injuries

from the jungle of the Reykjavík night-life.  Often the perils of the

jungle and other alien regions can help us visualise the hardships

that missionaries have had to endure.  This was the case with Stanley

and Livingstone, even if they were rather preaching God's own Kingdom

than the idea of the co-operative Utopia.

        In our case one of your political missionaries, journalist

Skafti Jónsson, met hardship in the jungle of the night and his facial

injuries have clearly been exposed in four-column pictures in the

press.  Of course we are scandalised when we see this.

        We do not like to realise how our policemen have treated the

handsome face of this journalist who tells us that he innocently was

looking for his overcoat when the uniformed beasts of the

aforementioned jungle attacked him.

        In my mind Mr.  Jónsson's case is of little importance.  But as

it has caught much attention and been widely discussed, I would like

to use the opportunity to point out to you that the real problem is in

fact bigger and much more horrifying.

        The case of Mr.  Jónsson is but a top of an iceberg that

news-people have brought to our attention.  Beneath, in the dark sea

of silence lurks a problem nine times bigger.

        That is the part I should like to make you aware of, because

you are Minister of Justice and thus in command of those uniformed

beasts that creep around, silently or not, in the jungle of our

nightly jollification.

        I am certainly not underestimating the hardships and pains

that this young man unnecessarily has had to endure.  But on the other

hand Mr.  Jónsson obviously is going to recover.  The blue spots on his

face will turn violet and then brown.  In due time they finally will

disappear.  Mr.  Jónsson shall return to his job at your newspaper and

his case will be forgotten under the snow of future daily scandals

that incessantly will be coming down.

        Unless we use this opportunity to study the real problem.

        Several years ago I had to spend some weeks at the Surgery

Department of our Communal Hospital.  In a room of the same corridor a

boy of twenty was lying in his bed.  A promising and a charming young

person.  But his paralysed condition on the other hand did not allow

him to move any part of his body, except the eyes.  He was able to

read with the aid of special machinery and a helping hand which would

turn the pages for him.

        I was told that his hopes for recovery were minimal.

        The boy's room-mates told me that his injuries had been

caused by bouncers of a restaurant and some policemen.  I refrained

from believing this instantly so I inquired among the hospital staff

and - Yes, right they were; there we had a victim of the Reykjavík

night-squad.

        The picture of this paralysed youngster somehow followed me

out of the hospital and I couldn't help talking about his case.  Then

I found out that most people knew various stories of persons who had

had a similar or even worse experience with the uniformed beasts.

Individuals had been brought back to the intellectual capacity of a

new-born child as a result of choke-holds that policemen and bouncers

learn and use with brutal spontaneity instead of handling people with

prudence and care.  Such stories are so identical in substance and

abundant that you can hardly treat them as simple lies any more.

Another thing that goes with those stories as inevitably as brutality

follows stupidity is the statement that suing a policeman in such a

case would be hopeless.  The investigation would take place at another

department of the same police and be carried out by a troop of persons

who see their duty in washing any policeman clean of all accusations.

        Therefore the victims of the police brutes rest in agony and

many years can pass without an opportunity to discuss their problems

reasonably.

        Now there might be one of those rare occasions.  That is the

reason for this letter of mine.

        I have little doubt that there is something essentially wrong

in a system where the persons in charge seem to disregard all justice

and misinterpret their duties by allowing brutes and sadists to

practise their perverted mentality - no matter who is the victim.  In

my opinion the Reykjavík chief of police shows a stubborn attitude by

refusing to release the accused policemen from their duties while the

"Jónsson case" is being investigated.  And he seems to lose little of

his self-confidence, even in a case where he is facing one of your own

partisans.  But we shall see.

        Even if Mr.  Jónsson wins his case this will be an exception

and shall change nothing.  Other victims of this brutality would

continue to pile up in silence as before.

        My opinion is that the real problem lies with a system where

one policeman investigates another policeman's violations of correct

professional conduct.  This opinion I share with other much more

competent persons - who obviously hesitate to pronounce their opinion

on this matter fearing the revenge and beatings that might follow.

        The matter is all that serious.

        Two of your predecessors in office have received letters from

me regarding these problems.  Neither of them had the courtesy to

answer.

        Recently I have had the opportunity to observe pictures of you

in the press and I have noticed their fair expression of distinct

honour.  This indeed is the very kind of facial expression that anytime

could easily penetrate into your character even if it originally had

only been meant for the photographer.

        Therefore I am writing to you as well.

        And proposing my idea for the third time:

        Please remove all cases of police brutality from this

automatic and hopeless washing-machine where they have been treated.

As long as policemen are allowed to clean up one another's filth you

will never have a possibility to even consider most urgent things like

character tests that policemen should pass before they are taught

fatal tricks to exercise on people, or their very own responsibility

in cases where they temporarily have lost control of their furiousness -

all of which is the condition for a competent police force worthy of

the power given to them.

        But how can we get rid of the old system?

        You have to form a committee of trustworthy people to

investigate the rumours, gradually becoming public opinion, that

brutality is growing within the Reykjavík police force and being

unfairly protected.  Such a committee could advertise for victims of

police brutality and gather their testimonies for eventual

verification.  Hopefully the committee might find out that a tiny

minority of policemen are responsible.  Those individuals should be

advised to look for other jobs.

        I assume that our police problem could be compared with the

so-called "youth-problem" in the sense that comparatively few

individuals are responsible for this negative public opinion.  And

those individuals would not exactly be the typical or the most

intelligent ones of either group.

        I have seen our policemen perform many a good deed and some of

the very fine people I know are policemen.  We cannot do without

them.  But I owe it to the young man I met at the Communal Hospital to

gather my courage and forward this proposal: let us do a cleaning so

that the adventurers who choose to risk their skin in the jungle of

the Reykjavík night-life in the future can at least be assured that a

policeman in uniform is not among the perils of this jungle.

        The other beasts will certainly do.

        In court you sometimes forward a secondary claim in case that

your main demand will not be accepted.  Should you, Minister

Helgason, fail to have this neutral investigation realised I call upon

journalists (Skafti Jónsson for ex.) to start this investigation and

publish the results in a book that very probably would become a

bestseller.  I would at any time be prepared to participate in this

job.

Yours sincerely with respect,

Thorgeir Thorgeirson.

TRANSLATION

"STRIKE WHILE THE FLY IS SITTING ON MY NOSE..."

Thorgeir Thorgeirson's statement on police captain Einar Bjarnason's

behaviour in a television programme on the evening of last December 13.

(from MORGUNBLADID 20.12.1983)

        Prague is the capital of Czechoslovakia.  Of course they have

a police force there like we have in Reykjavík.  The affection of the

general public towards the police has its limits there as well as here -

even if both parts share the hate of intellectuals.

        The Prague humour can sometimes demonstrate in a sort of

playful questions that circulate from man to man along with the

answers.  Among the most popular ones is the following classic:

-       Why is it that policemen always go around in groups of three?

-       I don't know.

-       One of them must be able to read, another must be able to

        write and the third is there to control the two dangerous

        intellectuals.

        Last Tuesday, December 13, there was a progamme about the

police problem on our TV.  Among the participants were two police

intellectuals who somewhat lost control of the situation, according to

the opinion of many spectators.  The single spectator I heard excusing

Captain Elíason and Captain Bjarnason argued that there had been only

two of them and it would exactly have been the controller who was absent.

        This might well be true.

        Towards the end of the programme Captain Bjarnason, who happens

to be the chairman of the Reykjavík Police Association, organised an

amusing happening: after having consulted Captain Elíason with much

paper rattling and whispering, he started reading from a typed

document containing filth about my unreliable, every-lying person

(according to this document which the police somehow had managed to

have signed by a completely irrelevant person).

        Bjarnason could easily have got this message of his across

without breaking the law on radio-broadcasting and thus risking both

his honour and his job.  Many spectators have been wondering about

this.

        Of course.

        This venture can hardly be explained by the lack of control

alone so I feel forced to add another article to what I had thought to

be my final word about the matter a week ago (this is written Thursday

the 15 and will be delivered to the newspaper the 16 December).

        I have to mention my experience during the last week.

        Wednesday last week, i.e.  December 7, Morgunbladid published

my letter to the highest authority of justice in this country.  My

request was that he immediately order a neutral investigation of the

police problem instead of having the problem control itself forever.

Naturally I never expected my text to be specially applauded at

police-stations.

        A certain misunderstanding is always inevitable.  Misconception

has bloomed around this matter; my ideas of a writer's duty are that he

should, at least sometimes, be the conscience of his vicinity, but our

police officers seem to be of a totally different opinion, as only was

to be expected.

        No harm in that.

        The morning my letter to Minister Helgason appeared in the

newspaper astonishingly many people phoned to me.  Among them was a

certain Mr.  Hermannsson who introduced himself as police sergeant of

Reykjavík.  He wanted to know what case I had been writing about in my

article.  I told him that the subject had been the situation in

general; no isolated case.  The cases behind this situation were

several hundreds at least.  Hermannsson then inqured about the name of

the paralysed boy at the Communal Hospital, the one I had mentioned.

I told him, which was true, that I had probably never known the boy's

name.  Then I asked Hermannsson if the police actually was

investigating the matter.  His answer was yes.  I then pointed out to

him that it would be a very bold thing to do in the situation: if the

police once again was investigating a matter concerning their own

affairs.  At the same time I refused to give any further testimony by

telephone, except that I told him the date of my hospitalisation.  We

bade farewell.

        Because of what was to follow I have to stress the fact that

Hermannsson was so affectionate and polite during the whole call that I

had the feeling of having had a discussion with some Royal Master of

Ceremonies.  But he was later to show me his other side.

        During Thursday and all Friday morning I did nothing but

receive friendly phone calls and hand-shakes until I had myself

disappear to be able to do some work.  Towards evening when I returned

to reality there was a message from sergeant Hermannsson that I should

"read page 13 of today's Morgunbladid and then apologise for what I

had written".

        On page 13 of Morgunbladid I found a news-item about a person

who had been sentenced to pay damages to a young man he had beaten in

May 1978.  The sentence did not mention any police brutality nor were

any names indicated.  Could this have been the case I remembered from

the hospital?  Possible.  Obviously sergeant Hermannsson thought so.

But damn it though - my feeling was that the paralysed boy had died,

probably of pneumonia.  This was confirmed by my wife when she came

from work.

        -  I remember clearly when you arrived from medical control

some months after your hospitalisation.  You sat down at that very

table and you told me that this boy was dead, my wife said.  No one

ever doubted her veracity and she and all her family has a reputation

for the sharpest of memories.

        This inevitably must be some misconcept, I thought.

        So I called sergeant Hermannsson in the hope of solving this

riddle.  He was far less polite than he had been two days earlier.

        -  Your only hope is an official apology, he said.  There is

your case, the boy you mentioned.

        I gathered my courage and protested on the premise already

mentioned - and asked which were his sources.

        -  The State Criminal Investigation Police, the Sergeant said.

        I think this was the moment when I uttered the word:  Really!

while trying to orient.  Sergeant Hermannsson profited by the

following silence and told me that the SCIP had already investigated

the case.

        -  And you did not hesitate to publish the result in

Morgunbladid?  I said just to say something.

        -  You have to defend yourself, the sergeant said without

directly answering my question.

        At this moment, I must confess, a chilly feeling went down my

spine.  This was where Prague first came into the picture.  Blame me

if you can.  After 1968 my colleagues and friends living in Prague

have had to accept a system where any policeman simply can telephone a

colleague in another office for information about what a certain

author really is thinking.  From that moment the secret police is

interpreting all texts of the author in question.  The police alone

can decide what really is going on in his mind, just like here and now

our police forces claim absolute monopoly of the definition of what

boy has been in my mind in this case.  The similarity is a total one.

The Prague police has perfect contacts at newspapers like Rude Pravo

as well as at smaller papers.  The same is to be said of radio and

TV.  This is the reason why many a friend and colleague of mine is

sitting in prison this very moment for thoughts that only would occur

to a policeman's mind.  Some are even already resting in cemeteries.

Still others have left the country to testify.

        The people of the West like to be told such stories that back

up their false security.  But the truth is that power can corrupt

anyone anywhere and even more intelligent individuals than the average

policeman are vulnerable.  Human nature is the same here and there and

so is the very role of the police force.  The small difference lies

in forms and traditions of press independence vis-à-vis police power.

Independence is never to be taken for granted.  Most essential is the

persisting tendency of any authority like the police to control

information and ration truth to the press.  The supply of prefabricated

"police-truth" is rich.  Which again makes this peculiar kind of

"truth" rather cheap.

        Along these lines of thought I might have said a few harsh

words to sergeant Hermannsson but I hope that he has not taken all of

them too personally - anyway the gentleman from two days earlier all

of a sudden was there again with no trace of brutality in his voice.

        I thought this was a good sign.  Any our farewell was a

ceremony of culture.

        Time passed until Sunday.  The newspapers were full of sobbing

testimonies written by policemen.  Morgunbladid of Sunday published an

article by Jóhannes Jónsson, a policeman of course, who referred to

the news item from Friday 9 which meant that his manuscript would have

reached the editiorial office Saturday.  This was peculiar to me,

knowing that the normal waiting-time of an article for Morgunbladid is

something like four to six days from presentation of the manuscript to

publishing day.  That is valid for us plain-clothes citizens.  In his

article police officer Jónsson had the reiterated "police-truth" to

tell that "the case Mr.  Thorgeirson had referred to" was there on

page 13 of Friday's Morgunbladid.

        Again I felt that chill down my spine.

        What was actually happening?

        My sleep was uneasy during the night between Sunday and

Monday.  Therefore I was not well prepared the next day when

journalist Hallsson of Morgunbladid phoned and wanted me to confirm

the already mentioned "police-truth" from the day before.  Playing the

role of a tough journalist he did not listen to my objections nor

would he hear my motivations that I did not want to drag the dispute

down to his plan of petty quarrelling about stupidities.

        He was so insistent that I suddenly felt as if I was talking

to a spokesman of the police.  He even used exactly the same phrases

that sergeant Hermannsson had earlier screamed into my ears.  Then I

really got angry.

        I accused him of running odd errands for the police.

        The journalist showed me great tolerance, I must say.  He even

explained to me that the news-item on page 13 of Friday's paper had

been ready much earlier.  He insisted that there was no such thing as

control of journalists by the police.  Least of all would the

journalists of Morgunbladid accept anything of the sort.  Whatever he

might have meant by that?  I truly hope that he is right anyway.  I

apologised for my accusations and he in return accepted my point of

refusing to drag the polemic down to any dubious plans.  Our goodbye

had a very friendly tone.  And before we concluded the conversation he

had asked if I wished to publish any statement on the matter, which I

considered unnecessary as long as the police did not produce any more

of their "truths" against my authenticity.

        Since then something has occurred, and now I must ask Mr. Hallsson

to keep his promise and publish this statement of mine.  Even though

Captain Bjarnason's stroke towards the end of the TV programme last

Tuesday proved to be so much askew that I am not the one it hurts, I

must point out how very typical and police-like his behaviour has been.

        What is the core of this so called "police problem"?  Well -

many people think that our policemen already have attacked too many a

citizen, guilty or innocent.  They have been striking far too

frequently.

        Their recent reactions in the press have been filled with

quotations from 19th century literature, which is tremendously

amusing.  But older classical literature lingers behind.  They might

also have been consulting the Saga of Grettir the Strong whose

principle was:  The best way to endure the Bads of Life is to suffer

the Worse?

        Anyway that seems to be their line.

        This is far too pathetic a principle for a whole police force

to follow if we really want people to appreciate their services.

        Since Tuesday many people have been phoning and expressing the

opinion that the TB program on the police problem was a disastrous

document for future generations to study.

        -  They should have been in uniforms, someone said.  Captain

Bjarnason's behaviour was so typical of what gradually is becoming the

public opinion of our police force in defence: bullish falsifications,

illegal actions, superstition, hasted stupidity.

        And what not?

        The title of this article is borrowed from the folklore

everyone should know, about the couple hunting the fly.  It came to my

mind when I was observing Captain Bjarnason fighting his own inventions

during the TV programme.  Should our Minister of Justice not have had

time to see the programme I would like to advise him to borrow the tape

still existing at the TV station.  Comical interpretations have

something pathetic about them and this is a top one on what the general

public more and more refers to as the "police problem".

        Comic or pathetic, the programme should be an example to show

us the necessity of an impartial examination of the problem to prevent

the police from repeatedly hurting themselves while investigating

their own affairs in order to support a completely false image of

their childlike identity.

        Let us stop the fight and consider the proposal I forwarded in

my letter to the Minister of Justice.  We could even consider a more

sarcastic idea that a friend of mine proposed:

        Thorgeir, he said.  Wouldn't it be an idea to have a really

good pedagogical psychologist study this police aggression?

        Hopefully the matter is not all that complicated.

        With thanks for the publication.

Thorgeir Thorgeirson

PS:  Of course I am not going to sue Captain Bjarnason for violating

the law on radio-broadcasting.  He needs to be clean of all guilt

otherwise he might lose his job.  And my belief is that policemen only

profit in character by the experience of minor criminal acts as long

as their sins are executed in public and not behind the curtains.

        A televised emission might exactly be a convenient place.

        Old folks used to say:  The best future awaits the best man.

 

Full & Egal Universal Law Academy