CASE OF JERSILD v. DENMARK
Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
C. Russo;N. Valticos;R. Pekkanen
9. Mr Jens Olaf Jersild, a Danish national, is a journalist and lives in Copenhagen. He was at the time of the events giving rise to the present case, and still is, employed by Danmarks Radio (Danish Broadcasting Corporation, which broadcasts not only radio but also television programmes), assigned to its Sunday News Magazine (Søndagsavisen). The latter is known as a serious television programme intended for a well-informed audience, dealing with a wide range of social and political issues, including xenophobia, immigration and refugees. 10. On 31 May 1985 the newspaper Information published an article describing the racist attitudes of members of a group of young people, calling themselves "the Greenjackets" ("grønjakkerne"), at Østerbro in Copenhagen. In the light of this article, the editors of the Sunday News Magazine decided to produce a documentary on the Greenjackets. Subsequently the applicant contacted representatives of the group, inviting three of them together with Mr Per Axholt, a social worker employed at the local youth centre, to take part in a television interview. During the interview, which was conducted by the applicant, the three Greenjackets made abusive and derogatory remarks about immigrants and ethnic groups in Denmark. It lasted between five and six hours, of which between two and two and a half hours were video-recorded. Danmarks Radio paid the interviewees fees in accordance with its usual practice. 11. The applicant subsequently edited and cut the film of the interview down to a few minutes. On 21 July 1985 this was broadcast by Danmarks Radio as a part of the Sunday News Magazine. The programme consisted of a variety of items, for instance on the martial law in South Africa, on the debate on profit-sharing in Denmark and on the late German writer Heinrich Böll. The transcript of the Greenjackets item reads as follows [(I): TV presenter; (A): the applicant; (G): one or other of the Greenjackets]: (I) "In recent years, a great deal has been said about racism in Denmark. The papers are currently publishing stories about distrust and resentment directed against minorities. Who are the people who hate the minorities? Where do they come from? What is their mentality like? Mr Jens Olaf Jersild has visited a group of extremist youths at Østerbro in Copenhagen. (A) The flag on the wall is the flag of the Southern States from the American Civil War, but today it is also the symbol of racism, the symbol of the American movement, the Ku Klux Klan, and it shows what Lille Steen, Henrik and Nisse are. Are you a racist? (G) Yes, that’s what I regard myself as. It’s good being a racist. We believe Denmark is for the Danes. (A) Henrik, Lille Steen and all the others are members of a group of young people who live in Studsgårdsgade, called STUDSEN, in Østerbro in Copenhagen. It is public housing, a lot of the inhabitants are unemployed and on social security; the crime rate is high. Some of the young people in this neighbourhood have already been involved in criminal activities and have already been convicted. (G) It was an ordinary armed robbery at a petrol station. (A) What did you do? (G) Nothing. I just ran into a petrol station with a ... gun and made them give me some money. Then I ran out again. That’s all. (A) What about you, what happened? (G) I don’t wish to discuss that further. (A) But, was it violence? (G) Yes. (A) You have just come out of ... you have been arrested, what were you arrested for? (G) Street violence. (A) What happened? (G) I had a little fight with the police together with some friends. (A) Does that happen often? (G) Yes, out here it does. (A) All in all, there are 20-25 young people from STUDSEN in the same group. They meet not far away from the public housing area near some old houses which are to be torn down. They meet here to reaffirm among other things their racism, their hatred of immigrants and their support for the Ku Klux Klan. (G) The Ku Klux Klan, that’s something that comes from the States in the old days during - you know - the civil war and things like that, because the Northern States wanted that the niggers should be free human beings, man, they are not human beings, they are animals, right, it’s completely wrong, man, the things that happened. People should be allowed to keep slaves, I think so anyway. (A) Because blacks are not human beings? (G) No, you can also see that from their body structure, man, big flat noses, with cauliflower ears etc., man. Broad heads and very broad bodies, man, hairy, you are looking at a gorilla and compare it with an ape, man, then it is the same [behaviour], man, it’s the same movements, long arms, man, long fingers etc., long feet. (A) A lot of people are saying something different. There are a lot of people who say, but ... (G) Just take a picture of a gorilla, man, and then look at a nigger, it’s the same body structure and everything, man, flat forehead and all kinds of things. (A) There are many blacks, for example in the USA, who have important jobs. (G) Of course, there is always someone who wants to show off, as if they are better than the white man, but in the long run, it’s the white man who is better. (A) What does Ku Klux Klan mean to you? (G) It means a great deal, because I think what they do is right. A nigger is not a human being, it’s an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs and whatever they are called. (A) Henrik is 19 years old and on welfare. He lives in a rented room in Studsgårdsgade. Henrik is one of the strongest supporters of the Klan, and he hates the foreign workers, ‘Perkere’ [a very derogatory word in Danish for immigrant workers]. (G) They come up here, man, and sponge on our society. But we, we have enough problems in getting our social benefits, man, they just get it. Fuck, we can argue with those idiots up there at the social benefit office to get our money, man, they just get it, man, they are the first on the housing list, they get better flats than us, man, and some of our friends who have children, man, they are living in the worst slum, man, they can’t even get a shower in their flat, man, then those ‘Perkere’-families, man, go up there with seven kids, man, and they just get an expensive flat, right there and then. They get everything paid, and things like that, that can’t be right, man, Denmark is for the Danes, right? It is the fact that they are ‘Perkere’, that’s what we don’t like, right, and we don’t like their mentality - I mean they can damn well, I mean ... what’s it called ... I mean if they feel like speaking Russian in their homes, right, then it’s okay, but what we don’t like is when they walk around in those Zimbabwe-clothes and then speak this hula-hula language in the street, and if you ask them something or if you get into one of their taxis then they say: I don’t know where it is, you give directions right. (A) Is it not so that perhaps you are a bit envious that some of the ‘Perkere’ as you call them have their own shops, and cars, they can make ends ... (G) It’s drugs they are selling, man, half of the prison population in ‘Vestre’ are in there because of drugs, man, half of those in Vestre prison anyway, they are the people who are serving time for dealing drugs or something similar. They are in there, all the ‘Perkere’, because of drugs, right. [That] must be enough, what’s it called, there should not be drugs here in this country, but if it really has to be smuggled in, I think we should do it ourselves, I mean, I think it’s unfair that those foreigners come up here to ... what’s it called ... make Denmark more drug dependent and things like that. We have painted their doors and hoped that they would get fed up with it, so that they would soon leave, and jumped on their cars and thrown paint in their faces when they were lying in bed sleeping. (A) What was it you did with that paint - why paint? (G) Because it was white paint, I think that suited them well, that was the intended effect. (A) You threw paint through the windows of an immigrant family? (G) Yes. (A) What happened? (G) He just got it in his face, that’s all. Well, I think he woke up, and then he came out and shouted something in his hula-hula language. (A) Did he report it to the police? (G) I don’t know if he did, I mean, he won’t get anywhere by doing that. (A) Why not? (G) I don’t know, it’s just kid’s stuff, like other people throwing water in people’s faces, he got paint in his. They can’t make anything out of that. --- (A) Per Axholt, known as ‘Pax’ [(P)], is employed in the youth centre in Studsgårdsgade. He has worked there for several years, but many give up a lot sooner because of the tough environment. Per Axholt feels that the reasons why the young people are persecuting the immigrants is that they are themselves powerless and disappointed. What do you think they would say that they want, if you asked them? (P) Just what you and I want. Some control over their lives, work which may be considered decent and which they like, a reasonable economic situation, a reasonably functioning family, a wife or a husband and some children, a reasonable middle-class life such as you and I have. (A) They do many things which are sure to prevent them from getting it. (P) That is correct. (A) Why do you think they do this? (P) Because they have nothing better to do. They have been told over a long period that the means by which to achieve success is money. They won’t be able to get money legitimately, so often they try to obtain it through criminal activity. Sometimes they succeed, sometimes not, and that’s why we see a lot of young people in that situation go to prison, because it doesn’t work. --- (A) How old were you when you started your criminal activities? (G) I don’t know, about 14 I guess. (A) What did you do? (G) The first time, I can’t remember, I don’t know, burglary. (A) Do you have what one might call a criminal career? (G) I don’t know if you can call it that. (A) You committed your first crime when you were 14. (G) Well, you can put it that way, I mean, if that is a criminal career. If you have been involved in crime since the age of 15 onwards, then I guess you can say I’ve had a criminal career. (A) Will you tell me about some of the things you have done? (G) No, not really. It’s been the same over and over again. There has been pinching of videos, where the ‘Perkere’ have been our customers, so they have money. If people want to be out here and have a nice time and be racists and drink beer, and have fun, then it’s quite obvious you don’t want to sit in the slammer. (A) But is the threat of imprisonment something that really deters people from doing something illegal? (G) No, it’s not prison, that doesn’t frighten people. (A) Is that why you hear stories about people from out here fighting with knives etc., night after night. Is the reason for this the fact that they are not afraid of the police getting hold of them? (G) Yes, nothing really comes of it, I mean, there are no bad consequences, so probably that’s why. For instance fights and stabbings and smashing up things ... If you really get into the joint it would be such a ridiculously small sentence, so it would be, I mean ... usually we are released the next day. Last time we caused some trouble over at the pub, they let us out the next morning. Nothing really comes of it. It doesn’t discourage us, but there were five of us, who just came out and then we had a celebration for the last guy, who came out yesterday, they probably don’t want to go in again for some time so they probably won’t commit big crimes again. (A) You would like to move back to Studsgårdsgade where you grew up, but we know for sure that it’s an environment with a high crime rate. Would you like your child to grow up like you? (G) No, and I don’t think she will. Firstly, because she is a girl, statistics show that the risk is not that high, I mean they probably don’t do it, but you don’t have to be a criminal because you live in an environment with a high crime rate. I just wouldn’t accept it, if she was mugging old women and stealing their handbags. (A) What if she was among those beating up the immigrants etc. What then? (G) That would be okay. I wouldn’t have anything against that. --- (I) We will have to see if the mentality of this family changes in the next generation. Finally, we would like to say that groups of young people like this one in STUDSEN at Østerbro, have been formed elsewhere in Copenhagen." 12. Following the programme no complaints were made to the Radio Council, which had competence in such matters, or to Danmarks Radio but the Bishop of Ålborg complained to the Minister of Justice. After undertaking investigations the Public Prosecutor instituted criminal proceedings in the City Court of Copenhagen (Københavns Byret) against the three youths interviewed by the applicant, charging them with a violation of Article 266 (b) of the Penal Code (straffeloven) (see paragraph 19 below) for having made the statements cited below: "... the Northern States wanted that the niggers should be free human beings, man, they are not human beings, they are animals." "Just take a picture of a gorilla, man, and then look at a nigger, it’s the same body structure and everything, man, flat forehead and all kinds of things." "A nigger is not a human being, it’s an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs and whatever they are called." "It is the fact that they are ‘Perkere’, that’s what we don’t like, right, and we don’t like their mentality ... what we don’t like is when they walk around in those Zimbabwe-clothes and then speak this hula-hula language in the street ..." "It’s drugs they are selling, man, half of the prison population in ‘Vestre’ are in there because of drugs ... they are the people who are serving time for dealing drugs ..." "They are in there, all the ‘Perkere’, because of drugs ..." The applicant was charged, under Article 266 (b) in conjunction with Article 23 (see paragraph 19 below), with aiding and abetting the three youths; the same charge was brought against the head of the news section of Danmarks Radio, Mr Lasse Jensen. 13. In the City Court counsel for the applicant and Mr Jensen called for their acquittal. He argued that the conduct of the applicant and Mr Jensen could in no way be compared to that of the other three defendants, with whose views they did not sympathise. They sought merely to provide a realistic picture of a social problem; in fact the programme only provoked resentment and aroused pity in respect of the three other defendants, who had exposed themselves to ridicule on their own terms. Accordingly, it was by no means the intention of Danmarks Radio to persuade others to subscribe to the same views as the Greenjackets, rather the contrary. Under the relevant law a distinction had to be drawn between the persons who made the statements and the programme editors, the latter enjoying a special freedom of expression. Having at that time a broadcasting monopoly, Danmarks Radio was under a duty to impart all opinions of public interest in a manner that reflected the speaker’s way of expressing himself. The public also had an interest in being informed of notoriously bad social attitudes, even those which were unpleasant. The programme was broadcast in the context of a public debate which had resulted in press comments, for instance in Information, and was simply an honest report on the realities of the youths in question. Counsel, referring inter alia to the above-mentioned article in Information, also pointed to the fact that no consistent prosecution policy had been followed in cases of this nature. 14. On 24 April 1987 the City Court convicted the three youths, one of them for having stated that "niggers" and "foreign workers" were "animals", and two of them for their assertions in relation to drugs and "Perkere". The applicant was convicted of aiding and abetting them, as was Mr Jensen, in his capacity as programme controller; they were sentenced to pay day-fines (dagsbøder) totalling 1,000 and 2,000 Danish kroner, respectively, or alternatively to five days’ imprisonment (hæfte). As regards the applicant, the City Court found that, following the article in Information of 31 May 1985, he had visited the Greenjackets and after a conversation with Mr Axholt, amongst others, agreed that the three youths should participate in a television programme. The object of the programme had been to demonstrate the attitude of the Greenjackets to the racism at Østerbro, previously mentioned in the article in Information, and to show their social background. Accordingly, so the City Court held, the applicant had himself taken the initiative of making the television programme and, further, he had been well aware in advance that discriminatory statements of a racist nature were likely to be made during the interview. The interview had lasted several hours, during which beer, partly paid for by Danmarks Radio, was consumed. In this connection the applicant had encouraged the Greenjackets to express their racist views, which, in so far as they were broadcast on television, in itself constituted a breach of Article 266 (b) of the Penal Code. The statements were broadcast without any counterbalancing comments, after the recordings had been edited by the applicant. He was accordingly guilty of aiding and abetting the violation of Article 266 (b). 15. The applicant and Mr Jensen, but not the three Greenjackets, appealed against the City Court’s judgment to the High Court of Eastern Denmark (Østre Landsret). They essentially reiterated the submissions made before the City Court and, in addition, the applicant explained that, although he had suspected that the Greenjackets’ statements were punishable, he had refrained from omitting these from the programme, considering it crucial to show their actual attitude. He assumed that they were aware that they might incur criminal liability by making the statements and had therefore not warned them of this fact. 16. By judgment of 16 June 1988 the High Court, by five votes to one, dismissed the appeal. The dissenting member was of the view that, although the statements by the Greenjackets constituted offences under Article 266 (b) of the Penal Code, the applicant and Mr Jensen had not transgressed the bounds of the freedom of speech to be enjoyed by television and other media, since the object of the programme was to inform about and animate public discussion on the particular racist attitudes and social background of the youth group in question. 17. With leave the applicant and Mr Jensen appealed from the High Court judgment to the Supreme Court (Højesteret), which by four votes to one dismissed the appeal in a judgment of 13 February 1989. The majority held: "The defendants have caused the publication of the racist statements made by a narrow circle of persons and thereby made those persons liable to punishment and have thus, as held by the City Court and the High Court, violated Article 266 (b) in conjunction with Article 23 of the Penal Code. [We] do not find that an acquittal of the defendants could be justified on the ground of freedom of expression in matters of public interest as opposed to the interest in the protection against racial discrimination. [We] therefore vote in favour of confirming the judgment [appealed from]." Justice Pontoppidan stated in his dissent: "The object of the programme was to contribute to information on an issue - the attitude towards foreigners - which was the subject of extensive and sometimes emotional public debate. The programme must be presumed to have given a clear picture of the Greenjackets’ views, of which the public was thus given an opportunity to be informed and form its own opinion. In view of the nature of these views, any counterbalancing during or immediately before or after would not have served a useful purpose. Although it concerned a relatively small group of people holding extreme views, the programme had a fair degree of news and information value. The fact that the defendants took the initiative to disseminate such views is not of paramount importance for the assessment of their conduct. In these circumstances and irrespective of the fact that the statements rightly have been found to be in violation of Article 266 (b), I question the advisability of finding the defendants guilty of aiding and abetting the violation of this provision. I therefore vote in favour of the defendants’ acquittal." 18. When the Supreme Court has rendered judgment in a case raising important issues of principle it is customary that a member of the majority publishes a detailed and authoritative statement of the reasons for the judgment. In keeping with this custom, Justice Hermann on 20 January 1990 published such a statement in the Weekly Law Journal (Ugeskrift for Retsvæsen, 1989, p. 399). As regards the conviction of the applicant and Mr Jensen, the majority had attached importance to the fact that they had caused the racist statements to be made public. The applicant’s item had not been a direct report on a meeting. He had himself contacted the three youths and caused them to make assertions such as those previously made in Information, which he knew of and probably expected them to repeat. He had himself cut the recording of the interview, lasting several hours, down to a few minutes containing the crude comments. The statements, which would hardly have been punishable under Article 266 (b) of the Penal Code had they not been made to a wide circle ("videre kreds") of people, became clearly punishable as they were broadcast on television on the applicant’s initiative and with Mr Jensen’s approval. It was therefore beyond doubt that they had aided and abetted the dissemination of the statements. Acquitting the applicant and Mr Jensen could only be justified by reasons clearly outweighing the wrongfulness of their actions. In this connection, the interest in protecting those grossly insulted by the statements had to be weighed up against that of informing the public of the statements. Whilst it is desirable to allow the press the best possible conditions for reporting on society, press freedom cannot be unlimited since freedom of expression is coupled with responsibilities. In striking a balance between the various interests involved, the majority had regard to the fact that the statements, which were brought to a wide circle of people, consisted of series of inarticulate, defamatory remarks and insults spoken by members of an insignificant group whose opinions could hardly be of interest to many people. Their news or information value was not such as to justify their dissemination and therefore did not warrant acquitting the defendants. This did not mean that extremist views could not be reported in the press, but such reports must be carried out in a more balanced and comprehensive manner than was the case in the television programme in question. Direct reports from meetings which were a matter of public interest should also be permitted. The minority, on the other hand, considered that the right to information overrode the interests protected by Article 266 (b) of the Penal Code. Finally, Justice Hermann noted that the compatibility of the impugned measures with Article 10 (art. 10) of the Convention was not raised during the trial. 19. At the relevant time Article 266 (b) of the Penal Code provided: "Any person who, publicly or with the intention of disseminating it to a wide circle ("videre kreds") of people, makes a statement, or other communication, threatening, insulting or degrading a group of persons on account of their race, colour, national or ethnic origin or belief shall be liable to a fine or to simple detention or to imprisonment for a term not exceeding two years." Article 23, paragraph 1, reads: "A provision establishing a criminal offence shall apply to any person who has assisted the commission of the offence by instigation, advice or action. The punishment may be reduced if the person in question only intended to give assistance of minor importance or to strengthen an intent already resolved or if the offence has not been completed or an intended assistance failed." 20. The 1991 Media Liability Act (Medieansvarsloven, 1991:348), which entered into force on 1 January 1992, that is after the events giving rise to the present case, lays down rules inter alia on criminal liability in respect of television broadcasts. Section 18 provides: "A person making a statement during a non-direct broadcast (forskudt udsendelse) shall be responsible for the statement under general statutory provisions, unless: (1) the identity of the person concerned does not appear from the broadcast; or (2) [that person] has not consented to the statement being broadcast; or (3) [he or she] has been promised that [he or she] may take part [in the broadcast] without [his or her] identity being disclosed and reasonable precautions have been taken to this effect. In the situations described in paragraph 1, sub-paragraphs (1) to (3) above, the editor is responsible for the contents of the statements even where a violation of the law has occurred without intent or negligence on his part ..." Pursuant to section 22: "A person who reads out or in any other manner conveys a text or statement, is not responsible for the contents of that text or statement." 21. Provisions relating to the prohibition of racial discrimination and the prevention of propaganda of racist views and ideas are to be found in a number of international instruments, for example the 1945 United Nations Charter (paragraph 2 of the Preamble, Articles 1 para. 3, 13 para. 1 (b), 55 (c) and 76 (c)), the 1948 Universal Declaration of Human Rights (Articles 1, 2 and 7) and the 1966 International Covenant on Civil and Political Rights (Articles 2 para. 1, 20 para. 2 and 26). The most directly relevant treaty is the 1965 International Convention on the Elimination of All Forms of Racial Discrimination ("the UN Convention"), which has been ratified by a large majority of the Contracting States to the European Convention, including Denmark (9 December 1971). Articles 4 and 5 of that Convention provide: "States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention, inter alia: (a) shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; ..." "In compliance with the fundamental obligation laid down in ... this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: ... (d) ... viii. the right to freedom of opinion and expression; ..." The effects of the "due regard" clause in Article 4 has given rise to differing interpretations and the UN Committee on the Elimination of Racial Discrimination ("the UN Committee" - set up to supervise the implementation of the UN Convention) was divided in its comments on the applicant’s conviction. The present case had been presented by the Danish Government in a report to the UN Committee. Whilst some members welcomed it as "the clearest statement yet, in any country, that the right to protection against racial discrimination took precedence over the right to freedom of expression", other members considered that "in such cases the facts needed to be considered in relation to both rights" (Report of the Committee to the General Assembly, Official Records, Forty-Fifth Session, Supplement No. 18 (A/45/18), p. 21, para. 56).