CASE OF BARFOD v. DENMARK
No violation of Art. 10
7. The applicant is a Danish citizen, born in 1919. He is a precious-stone cutter by profession and resides at Narssaq, Greenland. 8. When, in 1979, the Greenland Local Government decided to introduce taxation of Danish nationals working on American bases in Greenland, a number of the persons affected (which persons did not include Mr Barfod) challenged that decision before the High Court of Greenland (Grønlands Landsret). They argued that the decision was illegal on the grounds, inter alia, that they did not have the right to vote in local elections in Greenland and did not receive any benefits from the Greenland authorities. The case was heard in the High Court sitting with one professional judge and two lay judges; the latter were both employed by the Local Government. In its judgment of 28 January 1981, which is not the object of the present complaint, the High Court unanimously found for the Local Government; this judgment was subsequently upheld by the High Court for Eastern Denmark (Østre Landsret) on 8 September 1983 ("the 1981 tax case"). 9. After learning about the judgment of the High Court of Greenland, the applicant wrote an article on the judgment, published in a magazine called "Grønland Dansk" in August 1982. In the article he expressed his opinion that the two lay judges were disqualified under Article 62 of the Danish Constitution (see paragraph 15 below); he also questioned their ability and power to decide impartially in a case brought against their employer. The article included the following passage (translation from Danish): "Most of the Local Government’s members could ... afford the time to watch that the two Greenland lay judges - who are by the way both employed directly by the Local Government, as director of a museum and as consultant in urban housing affairs - did their duty, and this they did. The vote was two to one [cf paragraph 13 below] in favour of the Local Government and with such a bench of judges it does not require much imagination to guess who voted how." 10. The professional High Court judge considered that these remarks on the two lay judges were of a kind which might damage their reputation in the eyes of the public and hence generally impair confidence in the legal system. As head of the Greenland judiciary, he consequently applied to the Greenland Chief of Police, asking for a criminal investigation to be instituted. The applicant was subsequently charged with defamation of character within the meaning of Article 71(1) of the Greenland Penal Code (Kriminalloven for Grønland; see paragraph 17 below) before the District Court (Kredsret) of Narssaq. 11. After an initial question of venue had been settled, the case was heard by the District Court of Narssaq on 9 December 1983. The applicant confirmed that he had written the article in question but he maintained that the lay judges had been barred, by virtue of Article 62 of the Danish Constitution (see paragraph 15 below), from adjudicating in the tax case and that the defamation case brought against him violated Article 77 of the Danish Constitution, which guarantees freedom of expression (see paragraph 16 below). In its judgment of the same day, the District Court stated (translation from Danish): "The Court does not find that the validity of the High Court judgment of 28 January 1981 should be examined in the present proceedings. The sole question is whether the accused, through the contents of his article, has insulted two of the judges sitting in that case. The Court finds that in the particular paragraph of the article in question the accused used such words that the two judges concerned may rightly consider their honour offended. The right invoked by the accused to freedom of expression in accordance with Article 77 of the Constitution is not found to be violated since the accused is entitled, without prior censorship, to state his views, although he may still be held responsible in the courts. Accordingly, the Court finds the accused guilty of having violated Article 71(1) of the Greenland Penal Code since it does not find that the accused has, in accordance with Article 71(2) of the same Code, proved the justification of his choice of words in the article in question." The District Court imposed a fine of 2,000 Danish Crowns on the applicant. 12. The applicant appealed to the High Court for Eastern Denmark, but the proceedings were transferred to the High Court of Greenland as this court was considered the proper court of appeal. When the High Court heard the case, the usual professional judge, who was disqualified as he had been responsible for initiating the proceedings, was replaced by one of his deputies (see paragraphs 10 above and 18 below). 13. In its judgment of 3 July 1984 upholding the District Court’s judgment, the High Court emphasised that the applicant had misunderstood the votes in the 1981 tax case: it was only with regard to the reasoning that there was a dissent; with regard to the conclusion all three judges had decided in favour of the Local Government (see paragraph 8 above). As to the charge brought against the applicant, the Court stated inter alia (translation from Danish): "Like the District Court, the High Court agrees with the prosecution that the words of the article to the effect that the two Greenland lay judges did their duty - namely their duty as employees of the Local Government to rule in its favour - represent a serious accusation which is likely to lower them in public esteem. Proof of the accusation has not been adduced, something which, moreover, would not have been possible since it cannot be excluded that they would have reached the same result had they not been employed by the Local Government. The accused will hereafter be considered guilty of having violated Article 71(1) of the Penal Code. Finally, concerning the question of the competence of the two lay judges, the High Court agrees with the accused that they, being employed in leading positions by the defendant party, ought - as was pointed out by the defence and notwithstanding the specific difficulties in Greenland of observing strict rules in regard to competence - to have considered themselves as disqualified and thus refrained from participating in the case, and that he was correct in drawing attention to this. Having regard, on the one hand, to the seriousness of the accusation and the information now available about the accused’s economic situation - which would give grounds for a considerable increase of the fine imposed - and, on the other hand, to the appropriateness of drawing attention to the failure to observe reasonable rules of competence which occurred, the Court finds that the fine imposed should be confirmed." 14. The applicant subsequently asked the Ministry of Justice for leave to appeal to the Supreme Court (Højesteret), but his request was rejected on 14 March 1985. 15. According to Article 62 of the Constitution (Danmarks Riges Grundlov), the administration of justice shall remain separated from the Executive and the rules in this respect shall be laid down by law. 16. Freedom of expression is protected by Article 77 of the Constitution, which provides (translation from Danish): "Everyone shall be entitled to make public his views in print, in writing and in speech, with the proviso that he may be held responsible in a court of justice. Censorship and other preventive measures shall never again be introduced." 17. The crime of defamation of character is defined in Article 71 of the Greenland Penal Code (Kriminalloven for Grønland), which provides (translation from Danish): [(1)] "Any person shall be liable to punishment for defamation of character if he degrades the honour of another person through insulting words or acts or if he makes or disseminates an accusation which is likely to damage the esteem in which the insulted party is held by his fellow citizens or which may in other ways damage his relationship with other people. (2) However, no person may be convicted on the ground of an accusation which is proved true or has been made in good faith, if the perpetrator was under an obligation to make the statement or acted in order to safeguard, justifiably, an evident public interest or his own or another’s interest. (3) A person making an accusation supported by evidence may nevertheless be convicted if the wording of the accusation is unduly insulting or if the perpetrator had no reasonable cause to make the accusation. (4) Whenever a defamatory accusation is unwarranted, the insulted party may call for a statement to this effect to be included in the conclusions of the judgment." 18. The administration of justice in Greenland is much influenced by the special conditions obtaining there: time-honoured traditions, the country’s enormous size and widely scattered settlements. The legal system consists of two levels of courts: the district courts, which are the courts of first instance, and the High Court, which is the court of appeal but can also hear certain cases at first instance. Depending on whether the High Court decides a case on appeal or at first instance, its judgment can be appealed either to the Supreme Court, if leave to appeal is granted by the Ministry of Justice, or to the High Court for Eastern Denmark. The High Court is presided over by the High Court Judge or one of his deputies, all of whom are legally trained. The High Court also includes two lay judges, appointed for four years at a time by the Greenland Parliament (Landstinget) upon nomination by the High Court Judge. The district courts are composed of three lay judges appointed for four years: the president, appointed by the High Court Judge, and two other lay judges appointed by the local authorities upon nomination by the High Court Judge. The lay judges discharge their duties as a civic obligation alongside their ordinary work. Any person entitled to vote in local elections may be appointed to act as a lay judge. Only if it is especially onerous for a lay judge to discharge his duties, may he be relieved of his appointment by the High Court Judge. 19. It is a fundamental principle of Danish as well as Greenland administration of justice that a judge must be impartial and be guided solely by the law and the evidence adduced. This principle applies to all persons exercising judicial power, that is both professional judges and lay judges. 20. The rules relating to disqualification of judges are laid down in the Greenland Administration of Justice Act. However this Act is worded in general terms and does not explicitly mention an employee/employer relationship between judges and parties as a ground for disqualification. 21. A decision given by a judge under the influence of considerations other than those deriving from the law or the evidence adduced, for example in deference to his employers, would be a manifest breach of duty for which sanctions would be available either under the Greenland Administration of Justice Act (disciplinary punishment) or under Article 28 of the Greenland Penal Code (abuse of public authority).