CASE OF HOLM v. SWEDEN
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Gaukur Jörundsson
6. Mr Carl G. Holm is a Swedish national. He is an economist and resides at Täby in Sweden. At the material time, he was employed by the Swedish Federation of Industries (Sveriges Industriförbund). 7. In 1974 the applicant formed together with others a foundation named Contra. According to him its aim was to scrutinise governments of communist regimes in Eastern Europe and the Swedish Social Democratic Workers Party (Sveriges socialdemokratiska arbetareparti - the "SAP"). 8. In 1985 a publishing house, Tidens förlag AB, published a book entitled "Till höger om neutraliteten" (To the right of neutrality). It contained a survey of right-wing organisations and individuals, including a 52-page chapter on the applicant and his involvement in Contra. The author of the book, Mr Sven Ove Hansson, was then employed by the publisher and had previously served as an ideological adviser to the SAP. Tidens förlag AB was, from its foundation in 1912 until 1 January 1985, owned by the SAP directly. As of the latter date, 85% of its shares were held by a company owned by the SAP, namely AB Förenade Arebolagen. The remaining 15% were held by Folkparkernas Centralorganisation which, the applicant states, was controlled by the SAP. Tidens förlag AB is known for publishing books and articles portraying social democratic views. 9. On 15 April 1986 the applicant brought a private prosecution for aggravated libel (grovt förtal), and in the alternative for libel (förtal), against Mr Hansson in the District Court (tingsrätten) of Stockholm, under Chapter 7, section 4, paragraph 9, of the 1949 Freedom of the Press Act (tryckfrihetsförordningen, an instrument forming part of the Swedish Constitution) and Chapter 5, Articles 1 and 2, of the Penal Code (brottsbalken). In the same proceedings he sued both the author and the publisher for damages, claiming 200,000 Swedish kronor. He contended that the book contained allegations implying that he belonged to certain nazi and fascist groups, calculated to cast doubt on his honour and to expose him to contempt; in view of the wide distribution of the book and the applicant’s central position in the Swedish Federation of Industries, the libel was aggravated. The impugned passages of the book included allegations which can be summarised as follows: (a) in 1973 the applicant had chaired the youth section of the World Anti-Communist League’s Conference in London, an organisation whose membership was said to consist largely of neo-nazis and former SS-members, for example the then chairman of the nazi-oriented Swedish National Union; (b) the applicant had, by reason of his right-wing extremism, been expelled in 1974 from the Democratic Alliance and the Conservative Youth Organisation; it was therefore regrettable that he still held important positions within the Swedish Federation of Industries and the Swedish Employers’ Federation; (c) he had been reported to the police for embezzlement of the Democratic Alliance’s funds; an audit had shown that he had transferred 1,340 Swedish kronor from the association’s account to his own account; (d) he had failed to dissociate himself immediately from a co-member of a splinter group of the Democratic Alliance, who had provided grenades to two Nordic National Party activists and who had urged the latter to place one of the grenades in an office of the Democratic Alliance and advised them on how to enter the office; the activists had been convicted of having placed the grenades and the applicant’s associate of having aided and abetted causing bodily harm; (e) Contra had been collaborating with the above-mentioned Swedish National Union in Lund and Malmö and the applicant had negotiated with the latter about the setting up of a local Contra group; (f) organisations like Contra were infiltrated to the highest echelons by neo-nazi groups, which selected the most militant members of such organisations and incited them to engage in illegal activities. 10. At a sitting held by the District Court on 10 November 1986, the defendants, but not the applicant, asked for the case to be considered with a jury. As a result of the defendants’ request, the question whether a criminal offence had been committed was to be examined, according to the provisions of the Freedom of the Press Act, by a jury, composed on the basis of a list of two groups of names (see paragraphs 15, 18 and 19 below). The list, which had been published by the Stockholm County Council (Stockholms läns landsting), indicated the jurors’ political affiliations. The first group comprised sixteen persons, seven of whom were members of the SAP, five of the Conservative Party, two of the Liberal Party, one of the Centre Party and one of the Communist Party. The second group included eight names, of whom four were members of the SAP, two of the Conservative Party and two of the Liberal Party. The applicant, referring to paragraph 9 of Article 13 in Chapter 4 of the Code of Judicial Procedure (rättegångsbalken), filed a complaint with the District Court under Chapter 12, section 8, of the Freedom of the Press Act, asking it to exclude as being disqualified those jurors who were members of the SAP (see paragraph 21 below). In support of his request, he pointed to the position as regards ownership of Tidens förlag AB (see paragraph 8 above) and argued that the publisher was the "mouthpiece" of the social democratic movement. However, the District Court rejected his request on 10 November 1986, finding that, regardless of whether the publisher could be seen as a "mouthpiece" as described by the applicant, the reasons invoked by him did not constitute grounds for disqualifying the jurors concerned. In an appeal against this decision to the Svea Court of Appeal (Svea Hovrätt), the applicant submitted, in addition to the above arguments, that the contents of the book were of a political nature and that the case had political undertones. The Court of Appeal dismissed the appeal on 4 December 1986, without stating any reasons. It was not open to the applicant to appeal further against this decision (Chapter 12, section 8, of the Freedom of the Press Act). 11. In the meantime, at the above-mentioned sitting on 10 November 1986, the District Court proceeded with the constitution of the jury in accordance with Chapter 12 of the Freedom of the Press Act. Exercising their right under section 10, the applicant and the defence each rejected three jurors from the first group and one from the second group. Those eliminated by the applicant were all SAP members and those by the defendants were members of the Conservative Party. Lots were drawn in accordance with the procedure described in paragraph 19 below, and a jury of nine members was constituted. Of these, five were members of the SAP - one of the them was subsequently replaced by another SAP member -, two of the Conservative Party, one of the Liberal Party and one of the Communist Party. 12. As appears from information submitted by the applicant, which was not contested by the Government, the SAP jurors were active members of the Party, holding or having held various offices in it and on its behalf at local level (for further details, see paragraph 27 of the Commission’s report). 13. On 14 October 1987, the District Court, sitting with three judges and a jury of nine, examined the merits of the case. In its judgment of the same date the court noted that the jury had replied in the negative to the questions put to it concerning the alleged unlawfulness of the impugned passages of the book. Accordingly, the District Court dismissed the charges made by the applicant and his claims for damages. In view of the conclusions reached on the merits, it ordered him to pay 67,860 Swedish kronor in costs. It was not possible under Swedish law for the applicant to appeal against the jury’s verdict (see paragraph 16 below). 14. In Sweden freedom of expression as regards the printed word is regulated by the 1949 Freedom of the Press Act, which has constitutional status. The first such Act dates back to 1766. The jury system was introduced when a revised version of the Act entered into force in 1812. The merits of the system underwent a thorough examination in the course of the revision which led to the 1949 version of the Act. However, the predominant view was that the jury system constituted an important safeguard of press freedom in Sweden and that it should be maintained. For similar reasons, more recent proposals to abolish the jury system have also been resisted. 15. Chapter 12 of the Act contains special provisions governing judicial proceedings instituted to establish civil or criminal liability for prohibited statements in print (section 1). These cases are heard by the District Court within whose jurisdiction the county administration has its seat (Chapter 12, section 1). It sits with three judges and, in proceedings brought under the Act, also with a jury of nine members to examine whether a criminal offence has been committed or whether civil liability has been incurred, unless the parties on both sides declare their willingness to have the issue determined by the court without a jury (sections 2 and 14). In any event, matters such as evidence, sentencing, damages and legal costs are dealt with by the judges alone. In a jury trial the District Court is presided over by a judge. If a jury has given a negative answer to the question whether an offence has been committed or whether civil liability has been incurred, the defendant must be acquitted or the case must be dismissed. If the reply is in the affirmative - and this requires a majority of at least six members - the issue is to be examined also by the judges. Should they disagree with the jury, they may acquit the defendant or apply a penal provision imposing a less severe penalty than that applied by the jury or, in civil proceedings, dismiss the case (sections 2 and 14). 16. A judgment by the District Court may be appealed against to the Court of Appeal, whose jurisdiction, like that of the District Court, is limited by the terms of the jury’s verdict (Chapter 12, section 2). 17. Chapter 1, section 4, provides that any person entrusted with the task of passing judgment on alleged abuses of the freedom of the press must constantly bear in mind the fundamental character of this freedom in a free society; he should attach more attention to whether an expression is illegal by reason of its substance rather than its form and also to its purpose rather than to the manner in which it has been represented; where there is doubt, he should acquit rather than convict. 18. In each county the county council, alone or in some cases together with the municipal council, elects jurors for a term of four years (Chapter 12, section 4). They are divided into two groups, one of sixteen jurors and the other of eight, the latter being composed of persons who hold or have held positions as lay members of the ordinary or administrative courts (section 3). The names of jurors are entered on a list in which each of the two groups are listed separately (section 9). Only Swedish citizens residing in Sweden are eligible for election as jurors. A further condition is that they be known to be independent and fair-minded and to have sound judgment. Different social groups and currents of opinion as well as geographical areas should be represented among the jurors (section 5). In practice, jurors are normally elected from among people who have been politically active. 19. In proceedings involving a jury, the District Court presents the above-mentioned list of jurors to the parties and queries whether there exist grounds for the disqualification of any of the jurors (Chapter 12, section 10; see also paragraph 21 below). Thereafter, each party is given the opportunity to exclude three jurors in the first group and one from the second. Subsequently, the District Court, by drawing lots, selects the substitute members until there remain six jurors in the first group and three jurors in the second group; these nine jurors become full members of the jury (Chapter 12, section 10). 20. Chapter 11, section 2, of the Instrument of Government (regeringsformen), which forms part of the Swedish Constitution, provides that neither a public authority nor Parliament may determine how a court should adjudicate or apply the law in a particular case. Moreover, all public power must be exercised subject to the law; courts and public authorities shall, in the performance of their functions, ensure the equality of all persons before the law and remain objective and impartial (Chapter 1, sections 1 and 9). These fundamental principles apply also to a jury sitting in a trial under the Freedom of the Press Act. 21. The statutory rules on disqualification of judges extend to jurors (Chapter 12, section 10, of the Freedom of the Press Act). Chapter 4, Article 13, of the Code of Judicial Procedure enumerates a series of specific grounds on which a judge may be disqualified: for instance, where he is a party in the case or otherwise has an interest in its subject-matter or can expect special advantage or damage from its outcome; or where he is related through family or marriage to someone in such a position; or has been involved in the case as judge, or as lawyer or adviser to one of the parties or as witness or expert. Pursuant to the last provision of this Article, paragraph 9, which was the one relied on by the applicant in the domestic proceedings, a judge must be disqualified if some other particular circumstance exists which is likely to undermine confidence in his impartiality in the case. 22. According to section 5 of the 1949 Act containing certain provisions on Proceedings relating to the Freedom of the Press (lagen 1949:164 med vissa bestämmelser om rättegången i tryckfrihetsmål) jurors must take the following oath before participating in a trial: "I, N.N., solemnly swear and declare on my faith and honour that, as a member of this jury, I shall to the best of my ability answer the questions put by the court and maintain total secrecy in respect of what has been uttered during the jury’s deliberations and how the jurors have voted. This I will and shall faithfully observe as an honest and upright judge." 23. Clause 13 of the SAP’s articles of association provides that a member may be excluded if he is disloyal to the Party, disseminates propaganda which is evidently in conflict with its general object and purpose or is otherwise detrimental to its interests. SAP candidates for public office are required to contribute through their office to the implementation of the Party’s programme. Other political parties have similar rules. On the other hand, none of the various party rules produced to the Convention institutions contain specific provisions imposing obligations as to the manner in which a member ought to carry out his tasks as a juror. It appears from the legislation summarised in paragraphs 20 to 22 above and the preparatory works to the 1949 Freedom of the Press Act that he is expected to perform this role with the same independence and impartiality as a judge (see Statens offentliga utredningar - "SOU" 1947:60, p. 194).